Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Evans v. United States

United States District Court, W.D. Virginia, Danville Division

November 15, 2016

SABRINIA E. EVANS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Hon. Jackson L. Kiser Senior United States District Judge.

         Before 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.

         I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

         Plaintiff 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 defendant(s).” (Id.)

         On July 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).

         On 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, [1] 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.

         II. STANDARD OF REVIEW

         Although 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 Procedure states:

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).

         III. DISCUSSION

         Contrary to Plaintiff's argument, the Federal Rules of Civil Procedure are ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.