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.

Barger v. United States

United States District Court, E.D. Washington

June 27, 2018

KAGNEY BARGER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS

          ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Defendant's Motion to Dismiss, ECF No. 9. The Court has reviewed the pleadings, has considered the record, and is fully informed.

         BACKGROUND

         Plaintiff Kagney Barger filed this suit against Defendant United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2675(a), seeking damages for personal injuries allegedly resulting from an automobile collision involving a Federal Bureau of Investigation agent. See ECF No. 1. Ms. Barger issued a summons and filed proof of service upon the Attorney General's Office in Washington, DC, but not on the U.S. Attorney's office in the Eastern District of Washington. See ECF Nos. 2 and 3.

         On May 11, 2018, the Court held a telephonic scheduling conference. ECF No. 7. At the scheduling conference, the Court directed Plaintiff to file proof of service upon the United States Attorney for this district. See Id. Plaintiff's counsel stated that he would be able to do so within a week of the hearing. Plaintiff did not file proof of service within a week. On May 22, 2018, Defendant moved to dismiss with prejudice based on Plaintiff's failure to serve Defendant timely and properly. ECF No. 9. On May 29, 2018, Plaintiff filed proof of service upon the United States Attorney for the Eastern District of Washington. ECF Nos. 12 and 13.

         DISCUSSION

         Defendant brings its Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(5). See ECF No. 9 at 2. Rule 12(b)(5) provides that a party may assert insufficient service of process as a defense by motion. See Fed. R. Civ. P. 12(b)(5). Defendant argues that Plaintiff failed timely and properly to serve the United States Attorney for the Eastern District of Washington in accordance with the Federal Rules of Civil Procedure. See ECF No. 9.

         Pursuant to Federal Rule of Civil Procedure 4(m), a plaintiff has 90 days in which to effect proper service upon a defendant. Rule 4(i) requires that a party suing the United States must deliver a copy of the summons and complaint to the United States Attorney for the district where the action is brought, in addition to serving a copy on the Attorney General in Washington, DC. Fed.R.Civ.P. 4(i). A federal court cannot exercise jurisdiction over a defendant unless the defendant has been properly served under Rule 4. See Direct Mail Specialists, Inc. v. Eclat Computerized Techs., 840 F.2d 685, 688 (9th Cir. 1988).

         If a plaintiff fails to serve a defendant 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 service be made within a specified time.” Fed.R.Civ.P. 4(m). However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. Additionally, “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” United Food & Commercial Works Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984).

         Here, Plaintiff filed her complaint against the United States on February 7, 2018. See ECF No. 1. The 90-day time-limit for service provided for in Rule 4(m) expired on May 8, 2018. The parties do not dispute that Plaintiff properly filed proof of service upon the Attorney General in Washington, DC, within Rule 4(m)'s 90-day time-limit. See ECF No. 3. However, Plaintiff did not file proof of service upon the United States Attorney for the Eastern District of Washington, where Plaintiff brought this action, as required by Rule 4(m), before May 8, 2018.

         At the scheduling conference in this matter, held on May 11, 2018, Defendant observed that Plaintiff had not complied with the Rule 4(m) requirements for proper service, and the Court directed Plaintiff to file proof of service upon the United States Attorney for the Eastern District of Washington. See ECF No. 7. Plaintiff's counsel stated that he would be able to do so within a week of the hearing. However, Plaintiff did not file proof of service within a week. On May 29, 2018, after Defendant filed the present motion, Plaintiff filed proof of service upon the United States Attorney for the Eastern District of Washington. ECF Nos. 12 and 13.

         Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(5) contesting the timeliness of Plaintiff's service of process. ECF No. 9. Defendant argues that the Court should dismiss with prejudice Plaintiff's case because Plaintiff failed to timely file proof of proper service in accordance with Rule 4(m). ECF No. 9.

         The Court agrees that Plaintiff did not comply with the 90-day time-limit provided for in Rule 4(m). However, the Court notes that the Assistant U.S. Attorney for the Eastern District of Washington assigned to this case on behalf of Defendant acknowledged that he had notice of the lawsuit and the fact that the Plaintiff served the Attorney General's office in Washington, DC, within Rule 4(m)'s 90-day time-limit. ECF No. 9-2. The Court also finds that Plaintiff has shown good cause for failing timely to file proof of service. See ECF No. 15. Any prejudice caused by Plaintiff's failure to follow Rule 4(m) resulted in wasted work by the U.S. Attorney's office and this Court.

         Therefore, pursuant to Rules 4 and 12, the Court finds that dismissal with prejudice for failure to effect proper service is not appropriate in this case. See Fed. R. Civ. P. 4; Fed.R.Civ.P. 12(b)(5); see also Jimenez v. City of San Bernadino, No. 98-55865, 1999 U.S. App. LEXIS 7414, at *4 (9th Cir. Apr. 14, 1999) (vacating the dismissal of claims pursuant to Rule 12(b)(5) with prejudice and remanding ...


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.