DOJ to Kinder: You Served The Wrong U.S. Attorney
Last week, Lt. Governor Peter Kinder generated a decent amount of media attention for himself demanding that the federal government respond to his Health Care Inaction lawsuit. Kinder claimed that the time limit for a response had passed, and called the Department of Justice's alleged delinquency a "disgrace."
But there appears to have been just one problem in Kinder's grandstanding: he and attorney Thor Hearne served the wrong U.S. Attorney. From a response filed Monday by Assistant Attorney General Tony West and U.S. Attorney Richard Callahan:
Under Rule 12(a)(2), Federal Rules of Civil Procedure, where, as here, the defendants in a civil case are officers of the United States sued in their official capacity, an answer, motion to dismiss, or other response to a complaint is due “60 days after service on the United States attorney.” Plaintiffs argue that they served the United States attorney more than 60 days ago. Hearne Declaration ¶ 5.
However, Rule 12(a)(2) should be read in concert with Rule 4(i)(A)(i), which specifies that it is not enough to serve some United States attorney; service must be “on the United States attorney for the district in which the action is brought.” (Emphasis supplied). Plaintiffs’ argument that they have served the United States attorney cites as evidence Exhibit E to the Hearne Declaration. That exhibit shows service on the United States attorney for the District of Columbia. However, the “district in which the action is brought” is the Eastern District of Missouri. There is no evidence that the United States attorney for the Eastern District of Missouri has been served.
Accordingly, the time for defendants to answer, move to dismiss, or otherwise respond to the amended complaint has not yet expired.
Accordingly, United States District Judge Rodney Sippel ordered Kinder and his legal team to "show cause no later than November 30, 2010 that service was made on the United States Attorney for the Southeastern District of Missouri."
A response filed yesterday by Hearne, Kinder's attorney, states that a summons and copy of their complaint have now been served to the proper U.S. Attorney.
Somehow, Kinder has failed to publish a single tweet about this development. Nevertheless, I'm confident that all of the press outlets who covered Kinder's actions last week will file a new round of stories documenting his incompetence.
Filings from the DOJ and Kinder's All-Star Legal Team may be found below the break.
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL DEFENDANTS TO ANSWER
