United States District Court for the District of Columbia
May 2, 2005.
DON HAMRICK, Plaintiff,
ALAN GOTTLIEB, NICKI FELLENZER, ANGEL SHAMAYA, WAYNE LAPIERRE, ROBERT DOWLUT, Defendants.
The opinion of the court was delivered by: RICHARD LEON, District Judge
Don Hamrick, a pro se plaintiff, brings this action against
Alan Gottlieb, Vice President of the Second Amendment Foundation,
Nicki Fellenzer, part-time independent contractor for
KeepAndBearArms.com, Inc., Angel Shamaya, Wayne LaPierre,
Executive Vice President of the National Rifle Association
("NRA"), and Robert Dowlut, General Counsel for the NRA. Among
other assorted claims, plaintiff appears to seek relief for libel
and defamation against defendants Fellenzer, Gottlieb, and
Shamaya, and for obstruction of justice and fraud under the
Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. § 1961 et seq. against defendants LaPierre and Dowlut as
employees of the NRA. Presently before the Court are two separate
motions to dismiss. Upon due consideration of the parties'
submissions, and the entire record herein, for the following
reasons the Court GRANTS, without prejudice, the Motion to Dismiss of defendants
Gottlieb, Fellenzer, and Shamaya for insufficient service of
process, and GRANTS, with prejudice, the Motion to Dismiss of
defendants Dowlut and LaPierre for failure to state a claim upon
which relief can be granted.*fn1
Plaintiff has filed several other actions in this and other
United States federal district courts for what appears to be an
assortment of gun-related grievances. Compl. at 9. To support
these other actions, plaintiff allegedly requested assistance
from the defendants, but his requests were denied. Id. at 18,
30-31, 49, 51. In the instant case, plaintiff alleges, inter
alia, that the NRA has circumvented its mission statement in
refusing to provide assistance. He further claims that the NRA's
lack of support amounts to obstruction of justice and fraud as
predicate acts for his RICO claim. Id. Finally, plaintiff
asserts claims for libel and defamation against defendants
Shamaya, Fellenzer, and Gottlieb based on statements allegedly
made in e-mails in which these defendants refused to support his
gun-related disputes. Id.
I. Motion of defendants Gottlieb, Fellenzer, and Shamaya.
Defendants Gottlieb, Fellenzer, and Shamaya have filed a motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) based upon
insufficient service of process.*fn2 For the following
reasons, the Court agrees that service was insufficient as to
these defendants, and dismisses the complaint, as applied to
them, without prejudice.
The plaintiff carries the burden of establishing that he has
properly effected service pursuant to federal rule of civil
procedure (4)(e). Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir.
1987). To effectuate valid service of process the plaintiff must:
(1) comply with the law of the state in which the district court
is located; (2) comply with the law of the state where the
service was effected; (3) effectuate personal delivery; or (4)
leave a copy at the usual place of abode, unless a waiver was
obtained. FED. R. CIV. P. 4(e)(1)-(2). Because this Court is
located in the District of Columbia ("District") and the
plaintiff in this case attempted service in Washington State,
see Affidavit of Alan Gottlieb ("Gottlieb Aff.") ¶¶ 2-3, the
plaintiff must show that service is proper under either of these
jurisdictions to meet his burden. He has failed to do so.
By way of factual background, defendant Gottlieb is the Vice
President of the Second Amendment Foundation, a non-profit
corporation in the State of Washington. Gottlieb Aff. ¶ 2.
Fellenzer is a part-time independent contractor for
KeepAndBearArms.com, Inc., a corporation also located in
Washington State. Id. ¶ 5. Fellenzer and Shamaya are not
associated with the Second Amendment Foundation, and, moreover,
neither individual resides in Washington State. Id. ¶¶ 5-6. Washington State
permits service by personal delivery to the usual place of abode,
or by leaving a copy at a usual mailing address "with a person of
suitable age and discretion who is a resident, proprietor, or
agent thereof. . . ." WASH. REV. CODE § 4.28.080(15)-(16). In
this case, the plaintiff tried to serve defendants Shamaya,
Fellenzer and Gottlieb by delivering the complaint and three
summonses, via Federal Express, to a business that is located on
a different floor but in the same building as the Second
Amendment Foundation. Gottlieb Aff. ¶ 2. The building in which
the Second Amendment Foundation is located, however, is not the
usual place of abode for any of these defendants, nor was the
service personally delivered by the defendant. Id. ¶¶ 2-6;
see WASH. REV. CODE § 4.28.080(15). Further, the building is
not the usual mailing address for any of the defendants. Gottlieb
Aff. ¶¶ 4-6; see WASH. REV. CODE § 4.28.080(16). Thus, the
service of process is ineffective under the laws of Washington
The District of Columbia permits service of process outside the
District by: (1) personal service; (2) any method valid in the
place where service is attempted; (3) by mail addressed to the
person to be served and requiring a signed receipt; or (4) as
directed by the foreign authority in response to a letter
rogatory. D.C. CODE ANN. § 13-431(a). Methods (1), (2), and (4)
are clearly not applicable here because: plaintiff did not
personally deliver the complaint; as noted previously, the
service was ineffective under the laws of Washington State; and
no letter rogatory was issued. Thus, on the facts of this case,
the only method of service with which the plaintiff potentially
could have complied is service by mail because the plaintiff sent the complaint and summonses via Federal
Express. Gottlieb Aff. ¶ 2. Even assuming arguendo that this
constituted service by mail, the service ultimately fails because
the District of Columbia requires a receipt or other evidence of
personal delivery "satisfactory to the court." D.C. CODE ANN. §
13-431(b). The package, addressed to Mr. Gottlieb, was delivered
to another business in the same building and signed by an
employee of the other business. Gottlieb Aff. ¶ 2. An agent must
have actual authority to receive service of process. Bulin v.
Stein, 668 A.2d 810, 813-14 (D.C. 1995) (quoting Leichman v.
Koons, 527 A.2d 745, 747 n. 4 (D.C. 1987)). The recipient of the
package had no such authority, thus the Federal Express signature
shows that the plaintiff did not personally serve the defendants.
Accordingly, because service of process fails under the laws of
the District, Washington State, and the Federal Rules of Civil
Procedure, the defendant's motion to dismiss pursuant to rule
12(b)(5) is GRANTED and the plaintiff's complaint with respect to
these defendants is dismissed without prejudice.*fn3
II. Motion of defendants LaPierre and Dowlut.
The Court will dismiss a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6) if "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Accordingly, the Court must accept as true all of the factual
allegations set forth in the complaint. Doe v. United States
Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir 1985).
Plaintiff essentially raises three claims against defendants
LaPierre and Dowlut: (1) NRA fails to live up to its mission
statement of a nonprofit organization by not publically
supporting the plaintiff's case; (2) defendants failure to assist
the plaintiff constitutes obstruction of justice under
18 U.S.C § 1512(b)(2)(B); and (3) defendant's failure to assist the
plaintiff is fraud as a predicate act under the RICO statute. All
three claims must be dismissed as a matter of law.
Plaintiff's first claim must fail as a matter of law because a
cause of action does not exist even if the NRA has failed to
fulfill its mission as alleged by the plaintiff. No legal duty
exists to control the conduct of third persons, absent a special
relationship. Skeen v. Federative Republic of Brazil,
566 F.Supp 1414, 1419 (D.D.C. 1983). As no special relationship
exists between an advocate petitioning for nonprofit support, the
plaintiff has not stated a cause of action as to the first count.
See e.g., RESTATEMENT (SECOND) OF TORTS §§ 316-19 (detailing
the special relationships between a parent and child, master and
servant, possessor of land and third parties, and possessor of
dangerous propensities and third parties).
Second, the plaintiff similarly has not stated a claim for
obstruction of justice under 18 U.S.C. § 1512(b)(2)(B) because
this statutory provision does not provide for a civil remedy as plaintiff seeks here. In determining whether a civil remedy
exists under a criminal statute that does not specifically
provide for a civil remedy, the language and structure of the
statute is examined to assess legislative intent. Tax Analysts
v. I.R.S., 214 F.3d 179, 186 (D.C. Cir. 2000). Statutes that are
part of comprehensive legislative schemes, including an
integrated system of procedures for enforcement, create a strong
presumption against the creation of a private cause of action.
Id. Here, § 1512(b)(2)(B) is part of a comprehensive
legislative scheme, and, thus, there is a presumption that absent
a specific civil remedy, Congress did not intend for the courts
to imply such a remedy. Plaintiff has offered nothing to rebut
this presumption, and, thus, has not stated a claim for
obstruction of justice.
Finally, the plaintiff has not pleaded a RICO violation. To
prevail on a RICO claim, the plaintiff must show that he was
injured by a violation of 18 U.S.C. § 1962 including that the
defendant committed activity prohibited under the statute.
Plaintiff has not shown any violation of 18 U.S.C. § 1962 and has
not pleaded any element of the offense attributable to the
defendant. Similarly, the plaintiff has not provided any evidence
that the plaintiff violated 18 U.S.C. § 1343 or 1028, the
potentially applicable federal fraud statutes. Thus, plaintiff
has failed to state a claim under the RICO statute. Accordingly,
because the plaintiff has failed to state a claim against
defendants LaPierre and Dowlut pursuant to rule 12(b)(6), the
defendant's motion to dismiss is GRANTED and the plaintiff's
complaint with respect to these defendants is dismissed with
For the foregoing reasons, the Court GRANTS without prejudice
the motion to dismiss of defendants Gottlieb, Fellenzer, and
Shamaya, and GRANTS with prejudice the motion to dismiss of
defendants LaPierre and Dowlut. An appropriate order is
simultaneously filed herewith.