U.S. v. Rodrigue

• Decision Date: 01 October 2009
• Docket Number: Slip Op. 09-108.,Court No. 08-00177.
• Citation: 645 F.Supp.2d 1310
• Parties: UNITED STATES, Plaintiff, v. Ronald RODRIGUE and Leroy Rodrigue, Defendants.
• Court: U.S. Court of International Trade

645 F.Supp.2d 1310

UNITED STATES, Plaintiff, v. Ronald RODRIGUE and Leroy Rodrigue, Defendants.

Slip Op. 09-108.

Court No. 08-00177.

United States Court of International Trade.

October 1, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Joseph A. Pixley); Philip Carpio, Office of the Associate Chief Counsel, Bureau of Customs and Border Protection, U.S. Department of Homeland Security, Of Counsel; for Plaintiff.

OPINION

RIDGWAY, Judge.

In this action, the Government seeks to collect civil penalties, plus interest and costs, imposed on the Defendants for allegedly transacting customs business without a valid broker's license.

Pending before the Court is Plaintiff's Motion for an Extension of Time, which the Government filed nunc pro tunc. See Plaintiff's Motion for Leave to File Nunc Pro Tunc Plaintiff's Motion for an Extension of Time; Plaintiff's Motion for an Extension of Time ("Pl.'s Motion for Extension of Time").¹ In its Motion for an Extension of Time, the Government seeks a 90-day enlargement of the 120-day period for service of process established in USCIT Rule 4(l), to extend from September 18, 2008 to December 17, 2008 the Government's deadline for effecting service on the two Defendants.

Also pending is Plaintiff's Motion for Leave to Serve by Publication and Motion for an Extension of Time, in which the Government requests a second 90-day extension of the deadline for service of process (i.e., an extension through March 17, 2009), and, moreover, seeks leave to make constructive service via publication in a Florida newspaper. See Plaintiff's Motion for Leave to Serve by Publication and Motion for an Extension of Time ("Pl.'s Motion for Service by Publication").

Subject matter jurisdiction lies under 28 U.S.C. § 1582 (2000). For the reasons detailed below, the Government's motions must be denied, and this action dismissed.

I. Background

According to the Complaint, father and son Defendants Ronald and Leroy Rodrigue operated a freight forwarding company in Miami, Florida, and transacted customs business without a valid broker's license. See Complaint ¶¶ 3-4. Multiple pre-penalty and penalty notices were issued to the two Defendants, advising them that the U.S. Bureau of Customs and Border Protection was assessing civil penalties of $10,000 each "for transacting customs business, other than solely on behalf of themselves, without a valid brokers license." See Complaint ¶ 12. The Complaint further alleges that, although Customs has repeatedly billed both Defendants, the penalties remain unpaid. See Complaint ¶¶ 14, 16-17.

Seeking to collect the civil penalties, plus interest and costs, the Government filed this action on May 21, 2008—the very day on which the five-year statute of limitations would have expired. See Complaint; Audio Recording of Hearing at 00:40:25-00:40:53 (noting that statute of limitations would have expired May 21, 2008); 19 U.S.C. § 1641(d)(4) (2000) (statute of limitations).² The Government was on notice that, pursuant to USCIT Rule 4(l), it had 120 days from the filing of the Complaint—that is, until September 18, 2008—to effect service on Ronald and Leroy Rodrigue. See USCIT R. 4(l).³ The Government was also on notice that the stakes were high, and that it had zero margin for error or delay. See Audio Recording of Hearing at 03:27:25-03:27:38. Because the Government had run down the clock on the statute of limitations, the Government would be time-barred from refiling if failure to effect service within the 120-day period resulted in the dismissal of this action.

The same day that it commenced this action, May 21, 2008, the Government mailed copies of the summons, Complaint, and waiver of service form to the two Defendants. The documents addressed to Leroy Rodrigue were sent via first class mail to 8618 SW 156th Place, Miami, Florida 33193, while Ronald Rodrigue's copies were mailed to 458 Buffalo Way, North Fort Myers, Florida. See Complaint, at Certificate of Service.⁴ According to the certificate of service, the zip code used for the mailing to Ronald Rodrigue was 33197. The correct zip code, however, is 33917. See Audio Recording of Hearing at 00:44:49-00:45:21, 00:49:34-00:50:47, 01:02:22-01:02:38 (noting that 33917 is correct zip code); Complaint, at Certificate of Service (indicating that mailing was sent to zip code 33197).⁵

Months before the Complaint was filed, the Florida Department of Highway Safety & Motor Vehicles had advised Customs that its most recent address-of-record for Leroy Rodrigue was the address on 156th Place. See Carpio Declaration (Pl.'s Motion for Service by Publication, App. A) ¶ 7.⁶ At the same time, the same Florida agency also advised that its most recent address-of-record for Ronald Rodrigue was 712 Bamboo Palm Way, Oviedo, Florida 32765, and that the Buffalo Way address was Ronald Rodrigue's prior address. See Carpio Declaration ¶¶ 8-9.⁷

Customs provided all that information to the Department of Justice as part of its "litigation report" dated February 13, 2008; and Customs apparently had the information in its possession for some weeks before that. See Carpio Declaration ¶¶ 6-9; Audio Recording of Hearing at 00:19:55-00:20:10, 02:47:20-02:48:05 (stating that report from Florida Department of Highway Safety & Motor Vehicles was dated January 22, 2008).⁸ Notwithstanding the more up-to-date address on Bamboo Palm Way that was provided by the Florida authorities, the Government mistakenly directed its May 21, 2008 mailing to Ronald Rodrigue at his old address on Buffalo Way.

On June 6, 2008, the Government's May 21, 2008 mailing to Ronald Rodrigue was returned to the Government. See Audio Recording of Hearing at 00:51:23-00:51:47.⁹ The envelope, which was labeled "Return to Sender," indicated that it had first been forwarded to the Bamboo Palm Way address. See Audio Recording of Hearing at 00:44:31-00:44:49, 00:45:35-00:45:44, 00:46:16-00:47:39, 01:12:30-01:13:03, 03:24:30-03:24:37. The mailing to Leroy Rodrigue was not returned. See Audio Recording of Hearing at 01:43:46-01:43:53 (stating that May 21, 2008 mailing addressed to Ronald Rodrigue was only mailing ever returned to Government).

On July 2, 2008, almost a month after the mailing to Ronald Rodrigue had been returned to the Government (and 42 days after the filing of the Complaint)—with no executed waiver of service in hand from either of the two Defendants—the Government again mailed copies of the summons, Complaint, and waiver of service form to the Rodrigues. See Pl.'s Motion for Extension of Time; Audio Recording of Hearing at 00:21:15-00:21:26, 00:52:26-00:52:36 02:57:21-02:57:47.¹⁰ For Leroy Rodrigue, the Government used the same address on 156th Place in Miami. See Audio Recording of Hearing at 00:52:38-00:52:51, 02:57:48-02:57:57, 02:58:23-02:58:33. For Ronald Rodrigue, the Government sent the mailing to the Bamboo Palm Way address—the address that the Florida authorities had previously provided, but which the Government had failed to use for its May 21, 2008 mailing. See Carpio Declaration ¶¶ 6, 8; Audio Recording of Hearing at 00:52:38-00:52:57.¹¹ Neither mailing was returned to the Government. See Audio Recording of Hearing at 00:53:28-00:53:33, 01:43:30-01:43:33, 02:58:38-02:58:41.

The Government took no further action in the 57 days that followed. See Audio Recording of Hearing at 00:55:41-00:56:00, 02:59:37-02:59:41. Finally, on August 29, 2008—a mere 21 days before the 120-day period for service of process expired, and with the statute of limitations long gone— the Government engaged a professional process service firm, Capitol Process Services. See Pl.'s Motion for Extension of Time; Affidavit of Non-Service; Audio Recording of Hearing at 00:54:48-00:55:40, 02:58:42-02:59:34.

Rather than attempting to serve Ronald Rodrigue at the Bamboo Palm Way address, the Government instead instructed the process server to attempt service at 458 Buffalo Way in North Fort Myers— the address to which the summons, Complaint, and waiver of service form originally had been mailed on May 21, 2008 (before being forwarded to Bamboo Palm Way), and the address which the Florida Department of Highway Safety & Motor Vehicles had clearly indicated was a prior address for Ronald Rodrigue. See Pl.'s Motion for Extension of Time; Affidavit of Non-Service; Audio Recording of Hearing at 01:28:31-01:29:30; Carpio Declaration ¶¶ 6, 8-9.

The Government instructed the process servers to attempt to serve Leroy Rodrigue not at the address on 156th Place in Miami (to which the two mailings had been sent), but, instead, at 15652 SW 85th Terrace, Miami, Florida 33193—purportedly a former address of Leroy Rodrigue, which was the subject of an alleged tip to Customs. See Pl.'s Motion for Extension of Time; Affidavit of Diligent Search and Inquiry; Audio Recording of Hearing at 00:22:30-00:23:30, 03:00:00-03:01:00, 04:16:04-04:16:22.¹²

According to the Affidavit of Diligent Search and Inquiry executed by the process server who sought to serve Leroy Rodrigue, an individual named Luis Martinez resides at the 85th Terrace address. See Affidavit of Diligent Search and Inquiry. Mr. Martinez advised the process server that he "[has] never heard of Leroy Rodrigue," and that "he [Mr. Martinez] rents from the brother of the owner Ronald Hodgkins, who [had] recently passed away." Id. The affidavit—dated September 15, 2008—states nothing more of substance. The Government elected not to have the process server attempt service on Leroy Rodrigue at the address on 156th Place in Miami,¹³ or at any other address. The Government made no additional inquiries and took no further action to locate or serve Leroy Rodrigue in the three days remaining before the 120-day period for service of process ended on September...