United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on the Report and Recommendation
of United States Magistrate Judge Pursuant to 28 U.S.C.
§ 636(b)(3) and Local Rule 72-1, filed on April 5, 2018
(“Report and Recommendation”) (DE #61), and the
Motion to Allow (Interlocutory) Appeal, filed by pro
se Plaintiff, Aleksander Skarzynski, on April 16, 2018
(DE #73). For the reasons set forth below, the motion (DE
#73) is DENIED, and the Report and
Recommendation (DE #61) is ADOPTED.
Accordingly, the Clerk is ORDERED to
DISMISS this case WITHOUT
filed a pro se qui tam complaint on October 21,
2014. Plaintiff served the Government, but none of the
defendants, with his complaint. The Court ordered the
Government to show cause as to why 31 U.S.C. §
3730(b)(4) had not been complied with. (DE #22.) After the
Government responded to the order to show cause, the Court
sua sponte dismissed Plaintiff's qui tam claims
and granted Plaintiff time in which to file an amended
complaint alleging only non-qui tam claims stemming from his
alleged wrongful termination. (DE #27.)
April 3, 2017, the Court accepted Plaintiff's Amended
Complaint and ordered Plaintiff to serve it on the defendants
in accordance with the Federal Rules of Civil Procedure. (DE
#30.) The Court extended the deadline for service of the
Amended Complaint, first on Plaintiff's motion and again
when it denied Plaintiff's motion to transfer. (DE #38,
DE #47.) The final deadline of August 18, 2017, expired
without any indication on the docket that any defendant has
been served. On February 22, 2018, the Court ordered
Plaintiff to show cause why he had not complied with the
Court's Orders to serve the defendants. (DE #53.)
Plaintiff responded to the order to show cause, but failed to
address service of the Amended Complaint on the defendants.
Magistrate Judge Martin issued the Report and Recommendation
on April 5, 2018, recommending dismissal without prejudice,
and notifying Plaintiff that he had fourteen days to file
objections thereto. (DE #61.) Thereafter, Plaintiff filed
several motions, including the instant motion for
interlocutory appeal of the Report and Recommendation on
April 17, 2018. (DE #73.)
response to the Report and Recommendation, Plaintiff filed a
motion to allow an interlocutory appeal of the Report and
Recommendation. “The proper method by which to
challenge a non-dispositive order is by filing an objection
or appeal of the Magistrate Judge's decision under
Federal Rule of Civil Procedure 72(a).” Westbrook
v. Bridges Cmty. Servs., No. 116CV02913TWPDML, 2017 WL
3503306, at *1 (S.D. Ind. Aug. 15, 2017). Because Plaintiff
proceeds pro se, “the Court liberally
construes his motion and the filing is treated as a timely
objection to the [Report and Recommendation], as opposed to a
motion for interlocutory appeal.” Id. (citing
Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.
2001)). For the reasons below, the Court denies
Plaintiff's appeal of the Report and Recommendation.
party makes objections to a magistrate judge's
recommendations, “the court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1).
“[T]he court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” Id.; see Fed. R.
Civ. P. 72(b). Here, it is undisputed that the Court granted
Plaintiff time in which to serve the defendants with the
Amended Complaint, and that Plaintiff has not served any of
claims that he timely served the original compliant on the
U.S. Attorney and Attorney General. He alleges that he was
unable to serve the original complaint on the defendants
because the complaint was sealed. He argues that service of
the Amended Complaint would have been futile because
amendment does not restart the time to serve. (DE #73 at 13.)
It is true that “[t]he purpose of allowing complaints
to be amended is to enable the pleadings to be conformed to
the developing evidence rather than to extend the time for
service indefinitely.” Del Raine v. Carlson,
826 F.2d 698, 705 (7th Cir. 1987). However, Rule 4(m) of the
Federal Rules of Civil Procedure provides that if a defendant
is not served within the applicable time limit, the court
“must dismiss the action without prejudice against that
defendant or order that service be made within a
specified time.” Fed.R.Civ.P. 4(m) (emphasis added).
Thus, Rule 4(m) authorizes courts to provide additional time
for service “even if there is no good cause
shown.” Notes of the Advisory Committee on 1993
Amendments to Rule 4(m). Here, the Court ordered Plaintiff to
serve the Amended Complaint within a specified time.
Plaintiff did not do so, despite being provided with multiple
also argues that the Court improperly dismissed his qui tam
claims sua sponte, and that his original complaint
should be reinstated. The law is clear that a plaintiff
proceeding pro se cannot pursue a qui tam claim on
the government's behalf: “a qui tam relator-even
one with a personal bone to pick with the defendant-sues on
behalf of the government and not himself. He therefore must
comply with the general rule prohibiting nonlawyers from
representing other litigants.” U.S. ex rel.
Szymczak v. Covenant Healthcare Sys., Inc., 207
Fed.Appx. 731, 732 (7th Cir. 2006); see U.S. ex rel. Lu
v. Ou, 368 F.3d 773, 775-76 (7th Cir. 2004) (“a
pro se relator cannot prosecute a qui tam action,
because he is acting as an attorney for the
government”), rev'd on other grounds,
Eisenstein v. City of New York, New York, 129
S.Ct. 2230 (2009). “If a person brings a qui tam claim
based on the [False Claims Act], and he or she proceeds
pro se, the district court will lack subject matter
jurisdiction over the claim.” Deutsche
Bank Nat'l Trust Co. v. Holyfield, 309 Fed.Appx.
331, 332-33 (11th Cir. 2009) (citing Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008)); see
Brantley v. Title First Titling Agency, No. 1:12-CV-608,
2012 WL 6725592, at *3 (S.D. Ohio Sept. 27, 2012), R.
& R. adopted, No. 1:12CV608, 2012 WL 6725591 (S.D.
Ohio Dec. 27, 2012) (“[T]his Court lacks subject matter
jurisdiction to hear a qui tam action brought on behalf of
the United States by a pro se litigant.”)
(collecting cases). “A federal district court may
dismiss sua sponte claims over which there is no
subject matter jurisdiction.” Abramson v.
Abramson, 991 F.2d 799 (7th Cir. 1993) (citing
Fed.R.Civ.P. 12(h)(3)); see Hay v. Indiana State Bd. of
Tax Comm'rs, 312 F.3d 876, 879 (7th Cir. 2002)
(“[N]ot only may the federal courts police subject
matter jurisdiction sua sponte, they must.”).
Plaintiff attempted to retain counsel, but was unsuccessful.
Because Plaintiff has proceeded pro se, he cannot
bring qui tam claims, and the Court properly dismissed those
claims sua sponte.
asserts that he cannot serve the Amended Complaint because
his right-to-sue letter was stolen, and without the
right-to-sue letter, defendant Community Care Network, Inc.
(“Community”) can object to the
claim. But “a plaintiff is not required to
attach a right-to-sue letter to her complaint.”
Sturgill v. Schneider Elec., No. 1:17-CV-500-TLS,
2018 WL 1257441, at *2 (N.D. Ind. Mar. 12, 2018) (citations
omitted); see Swoope v. Gary Cmty. Sch. Corp., No.
2:10-CV-423-RL, 2012 WL 3732838, at *2 (N.D. Ind. Aug. 28,
2012) (same). Thus, Plaintiff's current lack of a copy of
his right-to-sue letter does not excuse him from serving the
Amended Complaint on the defendants.
Court finds no basis for excusing Plaintiff from his duty to
comply with the time frame set forth by the Court. It is
undisputed that Plaintiff failed to serve any of the
defendants with the Amended Complaint by the deadline of
August 18, 2017. Plaintiff has offered no evidence of any
attempt to serve any of the defendants. Since the final
deadline by which to serve the defendants has long expired,
it does not appear that Plaintiff has proceeded diligently
with his case as required by the Federal Rules of Civil
reasons set forth below, Plaintiff's motion (DE #73) is
DENIED and the report and recommendation (DE
#61) is ADOPTED. Accordingly, the Clerk is