DISTRICT COURT OF THE UNITED STATES 
WESTERN DISTRICT OF NORTH CAROLINA 
ASHEVILLE DIVISION 


Dr. Mac                                    ) MISC NO. 1:05MC237 
PETITIONER                                 ) 
                                           )
		VS.                            ) Motion for New Trial and To Alter Judgment 
		                               )
THE UNITED STATES and                      ) 
CENTRAL CAROLINA BANK (SUNTRUST)           ) 
RESPONDENTS
Pursuit to Rule 59 FRCivP, Petitioner Dr. Machereby moves this court for a new trial or to Alter the Judgment dated January 6, 2006 based on the following reasons:

  1. On January 6, 2006 the Honorable Lacy Thornburg, US DJ –WDNC filed sua sponte his order dismissing the petition to qu ash IRS summons of Mac. Judge Thornburg clearly stated beyond doubt that the grounds for his dismissal was that Dr. Mac failed to file his return for service and his proof of mailing to the parties under Rule 4.
  2. The Judge is correct that Petitioner should file his proof of mailing to the necessary parties under Rule 4, which is the return receipt (the green postcard) from the post office. However, under Rule 4(m) Time Limit For Service, Dr. Mac has 120 days to file his Proof of Service with copies of the green card.
Rule 4 (l) Proof of Service provides that the failure to make the Proof of Service cannot be grounds for a dismissal.
  1. The complaint in this case was filed on ______________2005. The 120 days to file the Return of Service has not expired and Mc Alpine can file the Return of Service forms at his leisure.
  2. Dr. Mac will file very quickly his Returns of Service with copy of green card.
  3. Therefore, the Judge's order dated January 6, 2006 should be recalled, this case reopened and Petitioner be allowed to file his discovery and other motions.

CERTIFICATE OF SERVICE: I do hereby certify that on this date, I sent properly to opposing counsel a copy of the pleading. 

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Date:                                                     Dr.Mac Asheville, NC 28806