United States District Court, D. Montana, Great Falls Division
ORDER AND FINDINGS AND RECOMMENDATIONS
JOHNSTON UNITED STATES MAGISTRATE JUDGE
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).
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.)
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.
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).
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.
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.”
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).
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
Request for a more definite statement
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.
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