On November 3, 1993, the Small Business Administration moved to dismiss pursuant to FRBP 7004 and 7012. The grounds alleged by SBA are: (a) insufficient service on SBA; (b) lack of jurisdiction due to insufficient service; (c) failure to state a cause of action; and, (d) failure to pay the required filing fee. This case was subsequently converted to chapter 7 by an order of Judge MacDonald in the main case on November 17, 1993. The court will dismiss this adversary proceeding on the grounds of insufficient service and allow the trustee appointed to refile if he feels there was merit in Alex Bolt's complaint.

1. Insufficient Service - SBA is a government agency. It is to be served pursuant to FRCivP 4(d)(5) by serving the United States and sending a copy by registered or certified mail to the SBA. Portions of FRCivP 4 are incorporated into the adversary proceeding rules by FRBP 7004.

FRCivP 4(d)(4) governs service on the United States. A copy of the summons and complaint must be delivered to the U.S. Attorney in this district or an Assistant U.S. Attorney or clerical employee designated in a writing filed with the clerk, and also sent to the Attorney General for the United States by certified or registered mail. No service on the United States was made by Bolt in this adversary proceeding. Therefore, I will dismiss the complaint given my perception that Alex Bolt has been manipulating the bankruptcy system. But, see Borzeka v Heckler, 739 F2d 444,
      3 ABR 286  447-48 (9th Cir 1984) (failure to personally serve under FRCivP 4(d)(5) does not require dismissal of complaint where (a) the party to be served actually receives complaint, (b) the defendant suffered no prejudice for defective service, and (c) there is a justifiable excuse for failure to properly serve) and Haley v Simmons, 529 F2d 78 (8th Cir 1976) (dismissal is not always required where service is ineffective: under some circumstances the court may quash service but keep the case open).

If the chapter 7 trustee feels there is merit in the suit, he can move for reconsideration or refile the adversary proceeding.

2. Failure to State a Cause of Action - The complaint asks for a turnover order of some property allegedly seized improperly by the SBA, and for adequate protection. The SBA's motion asks for dismissal under FRCivP 12(b)(6) on the grounds that: However, the Debtor's allegations are completely unsupported by any evidence. Consequently, there is no "cause" for Debtor's adversary action for which relief can be granted.

The SBA cites no authority for dismissal on this ground except for the rule itself. In a case where the defendant sought dismissal because of failure to plead sufficient facts to properly plead a § 1983 action against a municipality, the Supreme Court of the United States has recently stated in Leatherman v Tarrant County Narcotics Intelligence and Coordination Unit, 113 SCt 1160, 1163 (1993):

We think that it is impossible to square the "heightened pleading standard" applied by the Fifth Circuit in this case with the liberal system of "notice pleading" set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only "a short and plain statement of the claim showing that the pleader is entitled to relief." In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), we said in effect that the Rule meant what it said: "[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id., at 47, 78 S.Ct., at 103 (footnote omitted). Rule 9(b) does impose a particularity requirement in two specific instances. It provides that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Thus, the Federal Rules do address       3 ABR 287   in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983.

Bolt's complaint should not be dismissed because it lacks sufficient factual allegations.

3. Failure to Pay Filing Fee - The SBA moves to dismiss because the debtor failed to pay the adversary complaint filing fee. SBA states that 28 USC § 1930(b) governs fees, and that it authorizes additional fees pursuant to 28 USC § 1914(b). The SBA argues that § 1914(b) requires a filing fee in a civil action of $120.00.

28 USC § 1930(b) provides:

The Judicial Conference of the United States may prescribe additional fees in cases under title 11 of the same kind as the Judicial Conference prescribes under section 1914(b) of this title.

For filing a complaint, a fee shall be collected in the same amount as the filing fee prescribed in 28 U.S.C. 1914(a) for instituting any civil action other than a writ of habeas corpus. If the United States, other than the United States Trustee acting as a trustee in a case under Title 11, or a debtor is plaintiff, no fee is required. If a trustee or debtor in possession is the plaintiff, the fee should be payable only from the estate and to the extent there is any estate realized. (emphasis added)

DATED: November 24, 1993

HERBERT A. ROSS
U.S. Bankruptcy Judge