The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
The Plaintiff, LaVern Koerner, complains that the Internal Revenue Service ("IRS") has acted improperly by disregarding various provisions of the Internal Revenue Code. Plaintiff sues for damages for alleged unauthorized collection activities. However, Plaintiff failed to serve the IRS; as a result, the time for the United States to respond to the Complaint never expired, and the United States never filed an Answer. The United States now seeks an order from this Court vacating a default obtained by Plaintiff. The United States also asks the Court to dismiss the Complaint for failure to state a claim upon which relief can be granted. Plaintiff opposes the Government's motion. The motion will be granted. The default obtained by Plaintiff will be vacated and the Complaint will be dismissed.
Plaintiff seeks damages for alleged unauthorized collection activities by the IRS, under 26 U.S.C. § 7433. This is this Plaintiff's fourth complaint with virtually the same allegations. See Civil Case Nos. 05-1600 (case closed when Plaintiff filed second complaint); 06-24 (dismissed for failure to exhaust administrative remedies); 06-1633(dismissed for failure to state a claim). This Complaint advances 31 Counts of alleged wrongdoing by the IRS but it contains no factual allegations and only restates statutory language.*fn1 The Complaint was filed on March 26, 2007 and service was made on the United States Attorney General and the United States Attorney for the District of Columbia on April 4, 2007. Plaintiff did not serve the IRS.
On June 8, 2007, Plaintiff filed an affidavit for default, and the Clerk entered default against the United States on June 11, 2007.
The Government moves to vacate entry of default against the United States and to dismiss Plaintiff's Complaint for failure to serve the IRS and for failure to state a claim upon which relief can be granted.
With respect to dismissal for insufficiency of service of process, pursuant to Federal Rule of Civil Procedure 12(b)(5), "[i]f the plaintiff does not properly effect service on a defendant, then the defendant may move to dismiss the complaint . . . . Upon such a motion, the plaintiff carries the burden of establishing that he has properly effected service." Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003). Failure of service is a jurisdictional defect which is fatal. Bland v. Britt, 271 F.2d 193 (4th Cir. 1959). Accordingly, courts routinely dismiss actions when service is improper. See Light v. Wolf, 816 F.2d 746, 750 (D.C. Cir. 1987).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of this 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted). In deciding a 12(b)(6) motion, the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).
A. Clerk's Entry of Default is Vacated for Good Cause Shown
Default judgments are disfavored by modern courts. Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980). Accordingly, under Federal Rule of Civil Procedure 55(c), so long as judgment has not yet been entered, a default may be set aside for "good cause shown." Id. (quoting Fed. R. Civ. P. 55(c)). The decision to set aside an entry of default rests in the discretion of the district court. Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 373 (D.C. Cir. 1980). In exercising such discretion, a court must consider whether
(1) the default was willful,
(2) a set-aside would prejudice ...