U.S. v. Tobins

• Decision Date: 02 March 2007
• Docket Number: Civil Action Lead No. 06-10516-JGD.
• Parties: UNITED STATES of America, Plaintiff, v. Barry A. TOBINS, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

483 F.Supp.2d 68

UNITED STATES of America, Plaintiff, v. Barry A. TOBINS, et al., Defendants.

Civil Action Lead No. 06-10516-JGD.

United States District Court, D. Massachusetts.

March 2, 2007.

Robert J. Kovacev, Stephen J. Turanchik, U.S. Department of Justice, Washington, DC, for Plaintiff.

Scott P. Lopez, Law Office of Scott P. Lopez, Jerrold I. Panich, Boston, MA, for Defendants.

Saundra Tobins, Centerville, MA, pro se.

ORDER

YOUNG, District Judge.

The Court adopts the Magistrate's Order and confirms the Motion to Dismiss is Denied.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

In the above-captioned consolidated actions, the United States of America ("United States" or "Government") is seeking to obtain a judgment against defendant Barry A. Tobins based on his alleged failure to pay over $1.6 million in income taxes, and to foreclose on tax liens against two Massachusetts properties owned by Mr. Tobins and his wife, defendant Saundra Tobins. Presently before the court is "Defendant Barry A. Tobins' Motion to Dismiss" (Docket No. 20), by which Mr. Tobins is seeking dismissal of the consolidated actions against him, pursuant to Fed. R.Civ.P. 4(a), 4(b), 4(m), 12(b)(2), 12(b)(4) and 12(b)(5), for lack of personal jurisdiction insufficient process, and insufficient service of process. At issue is whether the Government effectuated proper and timely service of process upon Mr. Tobins, and if not, whether the plaintiff has established good cause for its failure or is otherwise entitled to an extension of the time for service. For the reasons detailed below, this court finds that even if service of process was defective, the government has shown good cause for any failure to serve Mr. Tobins in a timely manner. This court further finds that even if no good cause had been shown, an extension of the time to complete service of process is warranted by the circumstances of this case. Therefore, Mr. Tobins' motion to dismiss is DENIED. Because the Government personally served process upon Mr. Tobins on October 16, 2006 in accordance with Fed. R.Civ.P. 4(e), the deadline for completing service of process shall be extended retroactive. to that date.

II. STATEMENT OF FACTS¹

The Government's Initial Efforts to Locate Mr. Tobins

Prior to initiating a lawsuit against Mr. Tobins, James J. Kelly, a Revenue Officer at the Internal Revenue Service ("IRS") in Quincy, Massachusetts, conducted an investigation relating to the IRS's efforts to collect taxes allegedly owing from Mr. Tobins. (Pl.'s Ex. 1 (Declaration of James J. Kelly) ¶¶ 1-3). In connection with that investigation, Officer Kelly determined that Mr. Tobins and his wife, defendant Saundra Tobins, owned two properties in Massachusetts. (Pl.'s Ex. 1 ¶ 3). Officer Kelly understood that the Tobins resided at one of those properties, located at 1110 Craigville Beach Road, Centerville, Massachusetts. (Id.). However, in October 2005, after Officer Kelly initiated contact with Mr. Tobins' attorney regarding the Government's efforts to collect the outstanding tax obligations, he was informed that Mr. Tobins had moved to Florida. (Pl.'s Ex. 1 ¶ 4). On October 17, 2005, Mr. Tobins' counsel notified Officer Kelly by facsimile that Mr. Tobins was residing at 255 Golf Club Drive in Key West, Florida. (Id.).

Officer Kelly sought to confirm Mr. Tobins' new address information by submitting postal tracers to the United States Postal Service to determine where Mr. Tobins' mail was delivered. (Pl.'s Ex. 1 ¶ 5). The postal tracers revealed that Mr. Tobins' mail was being delivered to both 255 Golf Club Drive in Key West and 1110 Craigville Beach Road in Centerville, and that no forwarding address had been provided for the Centerville address. (Id.). Officer Kelly believed on the basis of this information that Mr. Tobins maintained an abode at both locations. (Id.).

In November 2005, Officer Kelly also spoke with Mrs. Tobins at the Centerville address. (Pl.'s Ex. 1 ¶ 6). According to Officer Kelly, Mrs. Tobins said that she received mail for Mr. Tobins at the 1110 Craigville Beach Road address, and that she forwarded it to Mr. Tobins when he was in Florida. (Id.). However, Mrs. Tobins declined to provide an address for Mr. Tobins in Florida and to answer Officer Kelly's questions as to whether Mr. Tobins had returned to Massachusetts since leaving for Florida. (PL's Ex. 1 ¶ 7). Based on his conversation with Mrs. Tobins, Officer Kelly inferred that Mr. Tobins returned to Massachusetts and lived at the Centerville address with his wife "for at least several months out of the year." (Id.).

The Florida Litigation

On December 20, 2005, the United States filed a civil action against Mr. Tobins in the United States District Court for the Southern District of Florida. (Def.'s Ex. A). By its Complaint, the United States was seeking a judgment against Mr. Tobins for his alleged failure to pay over $1.6 million in federal income taxes during the time period between 1986 and 2001. (Id.). On that same date, the Deputy Clerk of the Florida court issued a summons to Mr. Tobins at 255 Golf Club Drive, Key West, Florida, which was the address alleged by the United States in its Complaint. (Def.'s Ex. A ¶ 3; Def.'s Ex. B). It was also the address that Mr. Tobins' attorney had provided to the Government and which had been confirmed by the Postal Service just two months earlier. Nevertheless, as detailed below, the United States' efforts to serve Mr. Tobins at this address were unsuccessful.

Mr. Tobins claims that at the time the Complaint was filed in Florida, he was residing at 255 Golf Club Drive in Key West and had been residing in Key West permanently since moving there from the 1110 Craigville Beach Road address in January 2004. (Def.'s Ex. D ¶¶ 2-3; 2d Tobins Aff. ¶¶ 2, 9). However, according to Mr. Tobins, sometime in January 2006, he moved to a different location in Key West, where he has continued to reside since that time. (Def.'s Ex. D ¶¶ 3-4; 2d Tobins Aff. ¶ 3). The parties dispute whether Mr. Tobins was intentionally trying to evade service of process by concealing his new address from the Government.

Mr. Tobins has presented evidence that he filed a change of address form with the United States Postal Service on about January 15, 2006 in connection with his move.² (Def.'s Ex. D ¶ 4; 2d Tobins Aff. ¶ 5). However, there also is evidence in the record that in February 2006, the Florida court sent an order to Mr. Tobins at the 255 Golf Club Drive address, and the order was returned to the court as undeliverable rather than forwarded to the new address. (Def.'s Ex. J ¶ 4). Moreover, there is uncontroverted evidence that several months after Mr. Tobins moved, his counsel submitted annual reports on his behalf to the Florida Secretary of State certifying that 255 Golf Club Drive was his current address. (Pl.'s Exs. 3 & 4). Apparently, Mr. Tobins had failed to advise his counsel that he had moved, resulting in false filings being made. (See Sorota Aff. ¶¶ 6-7).

On January 31, 2006, the United States filed a motion in the Florida litigation in which it notified the court that it had so far been unable to serve Mr. Tobins and acknowledged that Mr. Tobins would need to be served by April 19, 2006 in order to comply with the requirement of Fed. R.Civ.P. 4(m) that service of process be made within 120 days after filing the complaint. (Def.'s Ex. F ¶¶ 2, 4). Thereafter, the court scheduled a status hearing for February 8, 2006. (Def.'s Ex. G). According to the minutes from that hearing, "[t]he Government represented to the Court [that] the paperwork has been sent to the process server in Key West, and service should be effectuated by next week." (Def.'s Ex. H).

The court also set a scheduling conference for March 22, 2006. (Def.'s Ex. I). However, on March 8, 2006, the United States filed a motion with the Florida court in which it sought to continue the March 22 scheduling conference. (See generally Def.'s Ex. J). In its motion, the Government represented that it had unsuccessfully attempted to serve Mr. Tobins at the Golf Club Drive address on two occasions. (Def.'s Ex. J ¶¶ 6-7). The first attempt was made by a private process server hired by the United States, and the second attempt was made by a Revenue Officer, who determined that Mr. Tobins had abandoned the property. (Id.). The Government further stated:

The Internal Revenue Service has since made numerous efforts to identify an updated address for the defendant, but has thus far been unable to do so. Such efforts include renewed U.S. Postal Service tracers as well as searches of records of the Massachusetts Department of Motor Vehicles and wage reports ... The plaintiff next intends to attempt service at two separate pieces of real property owned by the defendant in Massachusetts. The plaintiff will also attempt to secure information from the defendant's former spouse.³

(Def.'s Ex. J ¶¶ 8-9). In an affidavit supporting the motion, counsel for the Government stated that "Revenue Officer Jay Kelly has also requested an updated U.S. Postal Service tracer for an accurate Florida address, but has not yet received a response." (Declaration of Richard D. Euliss attached to Def.'s Ex. J at ¶ 7).

On March 10, 2006, the Florida court issued an Order Canceling Scheduling Conference and Notification of Potential Dismissal. (Def.'s Ex. K). The court stated in its order that

the efforts the Government intends to take in the future to effectuate service, while commendable, should have been exercised prior to this time to move the litigation forward to resolution. The Court has previously made quite clear at the scheduling conferences that were held that the Plaintiff would be expected to exercise its considerable resources to effectuate service.

(Id.). The court also informed the Government that the "case will be DISMISSED on April 28, 2006, if service has...