United States District Court, D. Arizona
Chris M. Nero and Maria Bullock Nero, Plaintiffs,
Ryan C. Seifert, Defendant.
K. Jorgenson United States District Judge
before the Court are the Motion to Dismiss (Doc. 10) filed by
the United States of America on behalf of its employee Ryan
C. Seifert (“Seifert”). Also pending before the
Court are the Petition for Application for 180 Day Stay (Doc.
11) and the Petition to Strike Motion to Dismiss and for
Summary Judgment or Trial by Jury (Doc. 18) filed by Chris M.
Nero (“Nero”) and Maria Bullock Nero
(collectively, “the Neros”).
Factual and Procedural History
February 22, 2010, Nero entered into a plea agreement in CR
08-744-TUC-CKJ (JCG). Nero pleaded guilty to three counts of
Attempted Evasion of Assessment and Payment of Federal
Individual Income Taxes, in violation of 26 U.S.C. §
7201. In exchange for Nero's guilty plea, the government
agreed not to bring further criminal charges against Nero
relating to mortgage fraud charges in the case, and, if the
Court accepted the plea agreement, the government agreed to
move to dismiss the remaining charges of wire fraud,
conspiracy to commit wire fraud, money laundering, conspiracy
to commit money laundering, and aid and abet.
November 9, 2010, the Court sentenced Nero in CR 08-744-CKJ
(JCG) to a 58-month term of imprisonment followed by three
years on supervised release. The Judgment in the criminal
case included the following special condition of supervised
7. As set forth in the plea agreement, within 180 days of the
commencement of supervised release, you shall enter into a
closing agreement with the IRS and file original and/or
amended individual and corporate state and federal tax
returns for tax years 2001-2008.
(CR 08-744-CKJ (JCG), Doc. 423), p. 3.
Neros allege they received a letter from Seifert seeking
financial records to schedule a meeting in his office
regarding a collection. The Neros allege Seifert obtained a
credit report and placed an unlawful levy on each of their
checking accounts without due process of law. The Neros also
allege Seifert made false statements and that his charges of
claims are not substantially supported.
October 4, 2016, the Neros filed an Order to Show Cause for
Preliminary Injunction & Emergency Temporary Restraining
Order and Civil/Equity Complaint (“Complaint”) in
the Pima County Superior Court. On October 21, 2016, Seifert
and the United States of America removed the action to this
January 13, 2017, the government filed a Motion to Dismiss.
The Neros have filed a Petition to Strike Motion to Dismiss
and for Summary Judgment or Trial by Jury (Doc. 18). The
Court will accept the Petition to Strike Motion to Dismiss as
response or a request to deny the Motion to Dismiss. The
government has filed a reply (Doc. 19).
February 6, 2017, the Neros filed a Petition for Application
for 180 Day Stay (Doc. 11). The government has filed an
opposition (Doc. 13) and the Neros have filed a reply (Doc.
Motion to Dismiss (Doc. 10) and Petition to
Strike Motion to Dismiss (Doc. 18)
Service of Process
government asserts that service pursuant to Fed.R.Civ.P.
4(i)(3) has not been completed. Specifically, the government
asserts the Neros did not serve the Attorney General of the
United States and the United States Attorney for the District
of Arizona in addition to serving Seifert. The Neros do not
respond to this argument.
good cause for failure to serve a defendant within 90 days,
the court may either dismiss the action or order service
within a specified time. Fed.R.Civ.P. 4(m). A court should
consider factors such as “a statute of limitations bar,
prejudice to the defendant, actual notice of a lawsuit, and
eventual service” in deciding whether determining
whether to dismiss the action or order service. Efaw v.
Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (citing
Troxell v. Fedders of N. Am., Inc., 160 F.3d 381,
383 (7th Cir.1998)). In an action against a federal employee
in his official capacity, a plaintiff must serve both the
United States and the employee. When a case is removed from
state court, the time period begins on the date ...