Charcalla v. Dir. of Civil Rights Div. Dep't of Justice
| Decision Date | 07 August 2015 |
| Docket Number | NO. 1:14-CV-14,1:14-CV-14 |
| Parties | MARK W. CHARCALLA, Plaintiff, v. DIRECTOR OF CIVIL RIGHTS DIVISION DEPARTMENT OF JUSTICE, An agency of the United States Government Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court on the Third Motion for Default Judgment, filed by Plaintiff Mark Charcalla, on November 12, 2014 (DE# 22); the Motion to Dismiss Plaintiff's Amended Petition for a Writ of Mandamus for Failure to State a Claim on Which Relief Can Be Granted and for Insufficient Service of Process, filed by Defendant Director of Civil Rights Division of the Department of Justice on January 20, 2015 (DE# 28); and the Motion for Summary Judgment for a Writ of Mandamus filed by Plaintiff on February 6, 2015 (DE #32). For the reasons set forth below, Plaintiff's Third Motion for Default Judgment (DE # 22) is DENIED; Defendant's Motion to Dismiss Plaintiff's Amended Petition for a Writ of Mandamus for Failure to State a Claim on Which ReliefCan Be Granted and for Insufficient Service of Process (DE# 28) is GRANTED; and Plaintiff's Motion for Summary Judgment for a Writ of Mandamus (DE #32) is DENIED. Plaintiff's Amended Petition for a Writ of Mandamus (DE# 15) is DISMISSED.
On January 21, 2014, Plaintiff Mark Charcalla ("Charcalla") filed a pro se complaint entitled, "Petition for Writ of Mandamus" against Defendant Director of Civil Affairs of the Department of Justice ("DOJ"). (DE# 1.) In April 2014, Charcalla moved for default judgement. Magistrate Judge Cosbey denied this motion because Charcalla's service of the United States was improper under Federal Rules of Procedure Rule 4(i)(1). (DE# 7.) Charcalla served another summons on the United States, and in July 2014, filed a second motion for default. Magistrate Judge Cosbey denied this motion because Charcalla failed to serve the Attorney General as required by Rule 4(i)(1). (DE# 11.)
On August 20, 2014, Charcalla filed an amended pro se complaint entitled, "Amended Petition for a Writ of Mandamus" ("Amended Petition"), seeking a writ of mandamus compelling the DOJ to authorize a United States district attorney to act as Charcalla's attorney in his claim against his former employer for benefits under the Veterans Reemployment Rights Act of 1974 ("VRRA"). (DE# 15.) Charcalla served the Amended Petition andsummons on a United States district attorney, the Attorney General, and Molly Moran, the former Acting Assistant Attorney General of the DOJ's Civil Rights Division. (DE## 18-21.)
On November 12, 2014, Charcalla filed his Third Motion for Default Judgment. (DE# 22.) Five days later, an Assistant United States Attorney filed a notice of appearance on behalf of the DOJ, and an unopposed motion to extend the time to file a response to the Amended Petition. (DE## 23, 24.) Magistrate Judge Cosbey granted this motion for an extension, noting that the DOJ's counsel "represents that plaintiff does not object," and ordered the DOJ to file responses to Charcalla's Amended Petition and Third Motion for Default Judgment by January 13, 2015. (DE# 25.) Magistrate Judge Cosbey granted the DOJ's second unopposed motion to extend the time to file a response to the Amended Petition to January 20, 2015, noting the DOJ's representation that Charcalla had no objection. (DE# 27.)
On January 20, 2015, the DOJ filed a motion to dismiss the Amended Petition for failure to state a claim and for insufficient service of process. (DE# 28.) Charcalla filed his response to the DOJ's motion on February 6, 2015. (DE# 31.) On the same day, Charcalla filed a one-sentence motion for summary judgment. (DE# 32.) The DOJ filed its reply to its motion to dismiss on March 3, 2015. (DE# 35.) The DOJ did not respond to Charcalla's motion for default judgment or summary judgement motion.
The Amended Petition alleges the following relevant facts: Charcalla is a "service connected disabled veteran" seeking benefits authorized under the VRRA. (DE# 15 at 1.) Upon returning from military duty, Charcalla was reemployed by his former employer under the VRRA, but was laid off after nine weeks.1 (Id. at 2.) Sometime "[l]ater, [Charcalla] learned that a company can not [sic] do this until the veteran has had 1 full year of employment." (Id.) In 2009, he filed a claim against his former employer with the Department of Labor, and escalated it to the DOJ for enforcement. (Id. at 1, 7.) The DOJ refused to represent Charcalla in his Uniformed Services Employment and Reemployment Rights Act ("USERRA") claim against his former employer. (Id. at 1, 7 ().) In 2011, Charcalla filed a pro se complaint asserting USERRA claims against his former employer, which was subsequently dismissed. (Id. at 1 (citing Charcalla v. Gen. Elec. Transp. Sys., No. 11-277 (W.D. Pa.))). Charcalla allegedly contacted several government officials and agencies, including the Department of Veterans Affairs and the Office of Special Counsel, seekingrepresentation under the VRRA, to no avail. (Id. at 3.) In September 2012, a deputy director of the Civil Rights Division allegedly told Charcalla that the DOJ would not authorize his representation "as a matter of established policy." (Id.) In April 2013, the Office of the Inspector General's Investigations Division reviewed Charcalla's allegations of misconduct by the DOJ, and determined that it did not have jurisdiction. (Id. at 4, 11.)
The Amended Petition asserts that "courts may issue all writs necessary and appropriate in aid of their respective jurisdictions and agreeable to usages and principals of law," (id. at 2 (citing 28 U.S.C. § 1651(a)), and that the Administrative Procedure Act allows a court to set aside an agency action or policy. (Id. at 4.) The Amended Petition seeks a writ of mandamus compelling the DOJ to authorize a United States district attorney to represent him in his claim against his former employer. (Id. at 1, 4, 6.)
In his third motion for default judgment, Charcalla contends that he is entitled to a default judgment against the DOJ. A party seeking affirmative relief is entitled to a default judgment in its favor when the party from which relief is sought fails to plead or otherwise defend. Fed. R. Civ. P. 55(a).
Here, the DOJ filed two unopposed motions for extensions of time in which to respond to the Amended Petition. Charcalla had no objection to either motion. Magistrate Judge Cosbey granted the DOJ's motions, and the DOJ filed its motion to dismiss within the extended deadline. Therefore, Charcalla's third motion for default judgment is DENIED. See Washington v. Duncan, No. 13-C-1080, 2015 WL 2165580, at *2 (E.D. Wis. May 8, 2015) ().
The DOJ's motion to dismiss argues that Charcalla's Amended Petition: (1) suffers from insufficient service of process under Federal Rules of Civil Procedure Rule 12(b)(5); and (2) fails to state a claim upon which relief can be granted under Rule 12(b)(6). The Court will address these issues in turn.
Insufficient Service of Process:
Federal Rules of Civil Procedure Rule 4(i) provides that to serve a United States agency, "a party must serve the United States and also send a copy of the summons and of the complaint by registered mail to the agency." Fed. R. Civ. P. 4(i)(2). To properly serve the United States, a party must:
Fed. R. Civ. P. 4(i)(1). The DOJ asserts that Charcalla failed to satisfy Rule 4 because he personally served the summons and Amended Petition on the Attorney General and the former Acting Assistant Attorney General of the DOJ's Civil Rights Division. (DE# 29 at 2, 5.) However, the record indicates that Charcalla served these documents by certified mail. (DE## 19, 20.) Service in this manner is authorized by Rules 4(i)(1)(B) and 4(i)(2). According to the certified mail receipts, the Attorney General and the DOJ received the summons on August 28, 2014, and September 3, 2014, respectively. (Id.) In addition, a nonparty personally served the summons on the United States district attorney in Fort Wayne, Indiana, on August 28, 2014. (DE# 18.) Service in this manner is authorized by Rule 4(i)(1)(A). Therefore, Charcalla's service on of process was effective under Rule 4.
Failure to State a Claim:
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a complaint to be dismissed if it fails to "state a claim upon which relief can be granted." Allegations other than fraud and mistake are governed by the pleading standard outlined in FederalRules of Civil Procedure Rule 8(a), which requires a "short and plain statement" that the pleader is entitled to relief.
In order to survive a Rule 12(b)(6) motion, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face'." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). All well-pleaded facts must be accepted as true, and all reasonable inferences from those facts must be resolved in the plaintiff's favor. Pugh v. Tribune Co., 521 F.3d 686, 692 (7th Cir. 2008). "In evaluating the sufficiency of a complaint, 'the court may also consider documents attached to the pleading without converting the motion into one for summary judgment.'" Runnion ex...
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