United States District Court, W.D. Virginia, Danville Division
SABRINIA E. EVANS, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
Jackson L. Kiser Senior United States District Judge.
me is Defendant United States of America's Motion to
Dismiss and Plaintiff Sabrinia Evans' Motion for
Extension of Time to Serve Process. The matters were fully
briefed by the parties, and I heard oral argument on November
8, 2016. The matter is now ripe for decision. For the reasons
stated herein, I will deny the United States' Motion to
Dismiss and grant Plaintiff leave to serve process on the
Attorney General of the United States.
STATEMENT OF FACTS AND PROCEDURAL
Sabrinia Evans (“Plaintiff”) filed suit in this
Court on May 3, 2016. [ECF No. 1.] Plaintiff was issued a
summons directed to Defendant, the United States of America
(“the United States”), on June 20, 2016. [ECF
Nos. 2-3.] On July 12, 2016, Plaintiff was advised that, as
of that date, “the Court's record reflects that . .
. service has not been executed on defendants(s), United
States of America.” [ECF No. 4.] Plaintiff was advised
that she had until “August 1, 2016 to notify the Clerk
of this Court that service has been accomplished on said
13, 2016, Plaintiff's attorney mailed a copy of the
summons and Complaint to the United States Attorney. [ECF No.
5.] On July 19, the United States, by and through the
Assistant United States Attorney (“AUSA”),
advised Plaintiff's attorney that he had “failed to
effect proper service of process under the Federal Rules of
Civil Procedure.” [ECF No. 6.] In his letter, a copy of
which was docketed with the Court, the AUSA advised
Plaintiff's attorney that “Federal Rule of Civil
Procedure 4(a) sets forth the requirements for serving the
United States and its agencies, corporations, officers, or
employees, and you must comply with these requirements to
effect proper service under the Federal Rules of Civil
Procedure.” (Id.) That same day, the civil
paralegal in the United States Attorney's Office,
e-mailed Plaintiff's counsel and advised him:
In order to comply with Rule 4(i)(1), please send the
complaint and summons to (1) my attention via registered or
certified mail as I am designated as a civil process clerk,
(2) the Attorney General of the United States via registered
or certified mail, and (3) to the agency via registered or
certified mail. Thank you.
[ECF No. 7-1.] Plaintiff's attorney replied that same
day: “Thank you… I will.” (Id.)
On July 21, a process server served the summons and Complaint
on a designated civil process clerk at the United States
Attorney's Office. [ECF No. 11.] The deadline to effect
service expired on August 1, 2016. See Fed.R.Civ.P.
4(m) (allowing ninety days for service).
September 20, 2016, the United States filed a motion to
dismiss based on Plaintiff's failure to serve her
Complaint on the Attorney General as required by the Federal
Rules of Civil Procedure. On September 26, 2016,
Plaintiff's attorney sent a copy of the Complaint and
summons to the Attorney General and the United States
Attorney. [ECF Nos. 13, 15.] That same day, Plaintiff filed a
motion “to extend the time for completing service upon
the Defendant by effecting Rule 4 service upon the Attorney
General of the United States” [ECF No. 14], and filed a
brief in support of her motion the following day [ECF No.
18]. The government filed a brief in support of its motion to
dismiss on October 7 [ECF No. 22], and a brief in opposition
to Plaintiff's motion on October 11 [ECF No. 23]. I heard
oral arguments on November 8.
STANDARD OF REVIEW
not stated, the United States is asserting a defense under
Rule 12(b)(5) for “insufficient service of
process.” Rule 4(m) of the Federal Rules of Civil
If a defendant is not served within 90 days after the
complaint is filed, the court-on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). “Good cause exists when the
plaintiffs have made ‘reasonable, diligent' efforts
to effect service on the defendants.” Hager v.
Graham, No. 5:05-cv-129, 2007 WL 1089088, at *3 (N.D.
W.Va. Mar. 30, 2007) (quoting T & S Rentals v. United
States, 164 F.R.D. 422, 425 (N.D. W.Va. 1996)).
“[G]ood cause is likely (but not always) to be found
when the plaintiff's failure to complete service in a
timely fashion is a result of the conduct of a third person,
typically the process server, the defendant has evaded
service of the process or engaged in misleading conduct, the
plaintiff has acted diligently in trying to effect service or
there are understandable mitigating circumstances, or the
plaintiff is proceeding pro se or in forma pauperis.”
4B Charles Alan Wright, Arthur R. Miller, & Adam N.
Steinman, Federal Practice and Procedure
§ 1137 (4th ed. 2015) (collecting cases).
to Plaintiff's argument, the Federal Rules of Civil
Procedure are ...