THE UNITED STATES DISTRICT
COURT
NORTHEN DISTRICT OF GEORGIA
DAVID
PATRIOT, )
)
Appellant-Plaintiff,
)
)
) Civil
Action No.
v. )
)
1:05-CV-0000-XX
)
)
)
Appellee-Defendant. )
PLAINTIFF'S RETURN TO JAN.
11 SHOW CAUSE ORDER OF
Plaintiff Patriot
files his return to the Court's show cause order why the instant case should
not be dismissed again for failure to properly serve Defendant United States as
follows:
1.
Patriot has already argued convincingly before a
higher court why his case should not have been dismissed, to wit, 1) that pro se litigants are entitled to a
greater degree of leniency in effecting service of process, 2) that defendant
had actual notice of Patriot's suit, 3) that Patriot -- as a private citizen
with severely restricted time, finances and no legal education pitted against
an omnipresent federal agency with unlimited manpower and funding -- would be
severely prejudiced by dismissal, and 4) that the government by no stretch of
imagination could be construed to have suffered from the technical defects in
service, which in any case were partly due to deputy clerks misleading Patriot
as to the procedure for serving process and other prejudicial conduct as will
be elaborated below.
2.
The higher court felt Hon. Clarence Cooper abused his
discretion by dismissing with prejudice Patriot's suit in light of the
incontrovertible facts that 1) Patriot never received the District Court's
orders to submit preliminary reports and discovery plans, 2) Patriot
immediately asked for an extension in order to comply with the Court's order,
and 3) Patriot's attempts at administrative remedy and due process have to date
been denied by the Internal Revenue Service's (hereinafter IRS) evasive actions
and ultimate cancellation of the collection due process hearing (hereinafter
CDPH) that Patriot timely requested. This forces citizens such as Patriot into
the added time, energy and expense of constantly appealing to higher courts,
thus clogging dockets with wholly unnecessary lawsuits.
3.
The issue here is improper service pursuant to
F.R.Cv.P. 4(i). On May 9, 2005, Patriot filed his original complaint. Patriot
was given blank copies of Form AO-440, Summons in a Civil Action, and oral
instructions to bring these forms back when he had proof that copies of the
complaint had been delivered to all parties of record via certified mail.
4.
When Patriot again visited clerk on Aug. 19, 2005, he
was informed
that proof of return of service had
not been effected and that the "sequencing" of his actions was wrong,
in the words of the deputy clerk with whom he had first dealt. There followed
heated discussion as to what had been communicated when Patriot filed suit on
May 9. Patriot encountered intransigence, hostility and ridicule in response to
his good-faith attempts to determine what "sequencing" was required
to achieve proper service on all parties. It should be noted for the record
that the deputy clerk in question was an African-American female and Patriot is
a Caucasian male. Patriot strongly feels there was racial and sexual
discrimination involved. It should also be noted: Patriot never asked nor
expected deputy clerks to give him legal advice or do research in the law for
him, only to verify if procedures Patriot was using, based on his reading of
the literal wording of F.R.Cv.P. 4(i), were correct for serving notice
properly, particularly as United States was a party to this action.
5.
Patriot immediately sent two-sided copies of all green
return receipts showing opposing parties had received and signed for his
original May 9 complaint together with blank copies of Form AO-440 and a cover
letter to the Clerk of Court, copying the U.S. Attorney for the Northern
District of Atlanta. These mailings were received and signed for by both
parties on Aug. 31, 2005. "…[T]axpayer demonstrated good cause for delay
in sworn statement that court clerk had erroneously instructed him about
service…". Dourlain v.
6.
The courts have ruled unequivocably that technical
defects in service should not obscure the overriding need to judge a suit on
its merits, motivated by concerns for substantial justice to be done. F.R.Cv.P.
8(f). In Poulakis v. Amtrak, 139
F.R.D. 107, 107 (N.D.Ill.1991), that court ruled
"Plaintiff's pro se status entitles him to a
certain degree of leniency in regard to service of process so as to ensure that
his case is justly resolved on its merits rather than on basis of technical
difficulties."
Similarly, "Although mailed
service…was inadequate,…dismissal was not warranted absent any showing of
prejudice."
7.
The courts have reviewed the issue of proof of service
on government entities and determined that plaintiffs have satisfied
"substantial compliance" when their mailings contained only "…a
cover letter, or even a summons, with another defendant's name typed on
it…". Clement v. Madigan, 820
F.Supp. 1039 (W.D.Mich. 1992).
8.
Additionally, on the subject of service on government
agencies, the court ruled in Zankel v.
"Rule on serving
9.
None of the defects in service in Patriot's case rise
to anywhere near the level of these other cases. Furthermore, the clear face of
the record shows that Patriot has been painstakingly diligent in timely
responding to every harassing letter, delaying tactic and procedural abuse by
IRS. Patriot never knowingly or willfully ignored a directive of this Court,
provided he was aware of same.
"District Court should give pro se litigant
benefit of liberally construed complaint…where subsequent proceedings reveal
that ambiguous fragments in complaint represent heart of litigant's concern;
where context makes clear litigant's essential grievance, complaint's
additional invocation of general legal principles need not detour District
Court from resolving that which litigant himself has shown to be his real
concern". Beaudett v. City of
10.
The IRS and DOJ have engaged in a continuous pattern
of evasion, delays, slander and stumbling blocks in a concerted effort to
thwart Patriot's attempts at relief because Patriot in his CDPH request and in
his motions since has presented issues that the IRS cannot overcome and
therefore must avoid confronting at all possible costs. These tactics have
pretty much become the standard procedure for the IRS to avoid holding the
congressionally-mandated CDPH's when they are timely requested.
11.
Citing a benchmark case, Jordan v. U.S., 694 F.2d 833 (D.C.Cir. 1982)(per curiam), in
regards notice of service, the Zankel
court further opined, "We think
that plaintiffs' mistakes are more properly regarded as a technical defect in
service…" and that "Plaintiffs, on the other hand, suffered extreme
prejudice from the dismissal of their complaint…". Similarly, "Rule 4 is a flexible rule which is
liberally construed to uphold service as long as defendant receives sufficient
notice of the complaint." Crane
v. Battelle, 127 F.R.D. 174, 177 (S.D.Cal. 1989) (citing United Food and Commercial Workers Union,
Locals 197, et al. v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th
Cir. 1984) (emphasis added).
12.
The abuses Patriot has documented to this Court
previously and to the Eleventh Circuit (incorporated herein as if fully
restated) and which stand as unrebutted facts on the record before this Court
are beginning to appear to rise to the level of a conspiracy against his rights
by all parties involved.
Respectfully submitted,
____________________________________
Date: ____________________
David Patriot
CERTIFICATE OF SERVICE
I certify that on this date, I
delivered this motion to the Clerk to the Court for the Northern District of
Georgia. I further certify that on this date copies of this brief were sent to
opposing counsel via United States mail correctly addressed with sufficient
postage pre-paid.
Sent to: Benjamin Tompkins
Tax Division