Gill v. Aramark Sports and Entertainment Services LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Michael Gill, et al., No. CV-20-08321-PCT-SMB 10 Plaintiffs, ORDER 11 v. 12 Aramark Sports and Entertainment Services LLC, et al., [13] Defendants. [14] 15 By this order the Court takes up the issue of Plaintiff’s service on the Defendant 16 United States of America. On December 1, 2020, Plaintiff brought this action against the 17 United States and against Aramark Sports and Entertainment Services LLC. (Doc. 1.) On 18 December 2, 2020, the Court issued an order directing the clerk of Court to terminate any 19 Defendants in the matter that were not served by March 1, 2021. (Doc. 7.) Pursuant to that 20 order, the Clerk of Court terminated the United States as a Defendant on March 3, 2021 21 because Plaintiff had not filed an affidavit of service. (Doc. 14.) Plaintiff immediately filed 22 a Motion for Reconsideration and to Reinstate Defendant USA, (Doc. 15), explaining that 23 an independent process servicer provider hired by the Plaintiff had served the United States 24 on December 7, 2020. (Doc. 15.) Plaintiff informed the Court that it was a simpler error 25 and oversite on their part which resulted in the affidavit of service not being filed. (Id.) The 26 Court then reinstated the United States as a Defendant. (Doc. 16.) 27 However, after reinstatement Plaintiff still never filed any notice of service with the 28 Court. The sole proof of service appears in an affidavit filed as an exhibit to Plaintiff’s 1 Motion to Reconsider. (Doc. 15.) Further, even if the affidavit were filed with the Court, 2 service would still be incomplete. According to the affidavit, the only action taken by the 3 process server was to mail a copy of the summons and complaint to the Attorney General 4 of the United States in Washington D.C. (Doc. 15-1 at 2.) But as the Federal Rules of Civil 5 Procedure clearly state: [6] [T]o serve the United States a party must: [7] (A) 8 (i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought —or to an [9] assistant United States attorney or clerical employee whom the United 10 States attorney designates in a writing filed with the court clerk—or (ii) send a copy of each by registered or certified mail to the civil11 process clerk at the United States attorney’s office; 12 (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and [13] C) if the action challenges an order of a nonparty agency or officer of the 14 United States, send a copy of each by registered or certified mail to the agency or officer. [15] 16 Fed. R. Civ. P. 4(i)(1). The rule’s use of “and” indicates the requirements of (A), (B), and 17 (C) form a conjunctive rather than a disjunctive list. See, e.g., United States v. Lopez, 998 18 F.3d 431 (9th Cir. 2021) (“not only is the plain meaning of ‘and’ conjunctive, but the 19 Senate's own legislative drafting manual tells the court that ‘and’ is used as a 20 conjunctive.”); United States v. Myers, 878 F.2d 1142, 1144 (9th Cir. 1989). Here, while 21 the Plaintiff’s affidavit indicates they have “sent a copy…by registered or certified mail to 22 the Attorney General of the United States at Washington, D.C” as required by 23 Rule(4)(i)(1)(B), the affidavit does not indicate whether Plaintiff has “delivered a copy of 24 the summons and of the complaint to the United States attorney for the district where the 25 action is brought…” as required under Rule(4)(i)(1)(A). Because the Plaintiff must satisfy 26 both Rule(4)(i)(1)(B) and Rule(4)(i)(1)(A) in order to serve the United States, service has 27 not been shown by Plaintiff’s affidavit. 28 Accordingly, 1 IT IS ORDERED that Defendant United States of America is dismissed from this || action. 3 Dated this 3rd day of September, 2021. 4 — ose [28] -3-