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Anato v. United States Department of Agriculture

United States District Court, D. Montana, Great Falls Division

April 18, 2018

SODJINE PAUL ANATO and SARAH ANATO, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, RURAL DEVELOPMENT, Defendant.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE

         Plaintiffs Sodjine Paul Anato and Sarah Anato (collectively “Plaintiffs”) filed a petition with the Ninth Circuit seeking review of the order of the National Appeals Division (“NAD”) of the United States Department of Agriculture (“USDA”). On March 14, 2017, the Ninth Circuit denied review and transferred Plaintiffs' petition to the United States District Court for the District of Montana. (Doc. 1). The petition requests that this Court review the Director Review Determination of the National Appeals Division “on the motion to Reconsider[sic] to allow the USDA to foreclose on the plaintiffs' home mortgage entered on November 02[, ] 2016.” (Doc. 2).

         On October 4, 2017, Defendant USDA, Rural Development (“Defendant”) moved to dismiss the Petition filed in this case under Fed.R.Civ.P. 12(b)(1), (5), and (6), or in the alternative, to require Plaintiffs to amend pleadings under Rule 12(e) “to cure the vague pleadings with a more definite statement.” (Doc. 6). Defendant argues that Plaintiffs have not filed a Complaint, issued a summons, served a summons, or made allegations regarding the basis for subject matter jurisdiction. (Doc. 7 at 2). Defendant argues there is no personal jurisdiction due to insufficient service of process, and also alleges Plaintiffs have failed to state a claim under Rule 8(a) because Plaintiffs' petition fails to assert violations, request relief, or even allege a jurisdictional basis for their suit. (Id.)

         On January 2, 2018, Plaintiffs filed a Complaint alleging six causes of action against Defendant, alleging federal question jurisdiction under 28 U.S.C. § 1331. (Doc. 15). Notably, however, Plaintiffs have not served a summons on Defendant.

         Courts generally construe the pleadings of pro se litigants liberally, and hold pro se plaintiffs “to less stringent standards than formal pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Neitzke v. Williams, 490 U.S. 319, 330 n. 9 (1989). Nevertheless, pro se plaintiffs are still “bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

         I. Summons

         Federal Rule of Civil Procedure 4(m) states:

If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

         “A summons-or a copy of a summons that is addressed to multiple defendants-must be issued for each defendant to be served.” Fed.R.Civ.P. 4(b). Finally, Fed.R.Civ.P. 4(c) states that a summons “must be served with a copy of the complaint.” Furthermore, Fed.R.Civ.P. 4(1) requires that “[U]nless service is waived, proof of service must be made to the court.”

         While the Court has authority to dismiss a complaint for failure to state a claim or failure to provide proof of service, “[d]ismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007). Defendants do not object to the Court granting Plaintiffs an opportunity to cure the deficiencies in pleading and to accomplish service of process. (Doc. 7 at 2-3).

         While a court is required to liberally construe a pro se pleading, a pro se plaintiff is still required to abide by the rules for service of process. In order for the Court to have jurisdiction over Defendant, Plaintiffs must serve Defendant with a summons in accordance with Fed. R. Civ. P 4. Therefore, the Court hereby ORDERS that on or before May 18, 2018, Plaintiffs shall file with the Court proof of service of summons and complaint on Defendant or show cause why this cause should not be dismissed, without prejudice.

         II. Request for a more definite statement

         Defendant requests that if this Court does not dismiss Plaintiffs' claims, it should require Plaintiffs to file a more definite statement than was made in Plaintiffs' original petition under Rule 12(e). On January 2, 2018, Plaintiffs filed their Complaint alleging a variety of torts and constitutional torts against the USDA. (Doc. 15). The Complaint alleges jurisdiction under 28 U.S.C. § 1331, alleges proper venue, provides a plain statement of the claim showing that Plaintiffs are entitled to relief, and contains a request for relief. This Complaint suffices as a claim for relief under Fed.R.Civ.P. 8(a), and is a more definite statement. Therefore, Defendant's request for a more definite statement is moot.

         Plaintiffs' action, as stated by Defendant, “appears to be an appeal under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.” (Doc. 7 at 3). Plaintiffs are essentially seeking review of the NAD. The NAD provides administrative review of certain designated divisions of the USDA, including the Rural Development Administration. 7 U.S.C. § 6991(2)(E). After a plaintiff exhausts his administrative remedies, “[t]he final determination of the [NAD] shall be reviewable and enforceable by any United ...


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