United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge.
matter comes before the Court upon Defendants' motion to
dismiss (Dkt. # 26) and Plaintiff's motion for
reconsideration, extension of time and to compel (Dkt. # 30).
lawsuit arises from Plaintiff's encounters with his mail
carrier. Plaintiff claims that he complained to the U.S. Post
Office in July 2015 about the bad attitude of Sohi Hemit,
Plaintiff's mail carrier. Dkt. 1-1 (Complaint) at 1.
Plaintiff avers that Hemit began throwing trash in
Plaintiff's mailbox in retaliation for this complaint.
Id. Plaintiff alleges that he appealed to Soon Kim,
the Post Master General, as well as to Kim's superiors to
no avail. Id. at 2. Plaintiff claims that he
experienced further retaliation for his insistence on an
investigation into the initial complaint. Id. For
example, Plaintiff states that Hemit tampered with his mail
on one occasion and, on another occasion, stole $60.00 by
slicing open three letters meant for Plaintiff. Id.
Plaintiff claims that the harassment has not stopped.
25, 2016, Plaintiff filed suit against Hemit, Kim, and a slew
of unknown defendants. Dkt. # 1. In order to properly serve
the unknown defendants, Plaintiff requested permission to
propound early discovery. Dkt. # 22. The Court granted his
request, allowing Plaintiff to propound discovery no later
than January 31, 2017. Dkt. # 23. On January 17, 2017,
Plaintiff filed a motion to compel, arguing that he
propounded discovery but Defendants refused to comply. Dkt. #
24. Instead, Defendants answered that Plaintiff's motion
for discovery was “improper and objectionable
under” the Federal Rules of Civil Procedure. Dkt. # 24
at 8. Defendants stated they had “no obligation to
provide responses to these discovery requests, and no further
response, other than [this letter, ] will be
forthcoming.” Id. The Court struck part of
Plaintiff's motion to compel for failure to comply with
LCR 37(a)(1) but reiterated that “Defendants shall
respond to Plaintiff's discovery no later than 30 days
after receipt.” Dkt. # 25.
parties did not file additional briefs regarding discovery.
On March 23, 2017, the Court noted that the deadlines for
early discovery had passed and therefore dismissed the
unknown defendants. Dkt. # 29.
now request that the Court dismiss the matter pursuant to
Rule 4(m). Dkt. # 26. Plaintiff moves to compel Defendants to
respond to his discovery requests. Dkt. # 30.
suit against a federal employee in her official capacity,
Rule 4(i)(3) requires a plaintiff to serve both the employee
and the United States. Fed.R.Civ.P. 4(i)(3). Rule 4(i)(1)
instructs plaintiffs on how to serve the United States.
pro se status does not excuse him from abiding by
applicable rules and deadlines. However, in the context of
Rule 4-and specifically in the context of Rule 4(i)- the
Ninth Circuit has recognized “a liberal and flexible
construction.” Borzeka v. Heckler, 739 F.2d
444, 447 (9th Cir. 1984). Moreover, Rule 4 provides some
leeway to a plaintiff who successfully serves the employee
but not the United States. In such a case, the “court
must allow a party a reasonable time to cure its
failure.” Fed.R.Civ.P. 4(i)(4)(B).
case, Plaintiff served the named defendants but failed to
serve the United States. In response, Plaintiff contends that
the United States is on notice because the Department of
Justice responded to his application for default and has
authored many of the briefs in this matter. Dkt. ## 17, 26.
In the alternative, Plaintiff requests assistance from the
Court in properly serving the United States. Dkt. # 28.
Court will allow Plaintiff reasonable time to cure the issue
with service in this matter. See Fed. R. Civ. P.
4(i)(4)(B). The Court directs the Clerk to issue service upon
the United States. 28 U.S.C. § 1915(d). The Clerk is
directed to send by first-class mail to the United States
attorney for the Western District of Washington the following
documents: a copy of Plaintiff's complaint and this
Order, a Waiver of Service of Summons, and a return envelope,
postage prepaid, addressed to the Clerk's office. The