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Civil Action No. 96-382 MMS
April 11 1997 Decided
Michael P. Maguire Esquire Wilmington Delaware; Counsel for plaintiff.
Paulette K. Nash Esquire Assistant United States Counsel Department of Justice Wilmington Delaware; Counsel for defendant.
Murray M. Schwartz Senior District Court
The Hon. Justice Murray M. Schwartz


Plaintiff Louis Brown filed a complaint against the United States Department of Transportation Federal Aviation Administration ("F.A.A.") claiming discrimination on the basis of a disability in violation of SEC. 501 of the Rehabilitation Act 29 U.S.C. SEC. 791 et seq. Docket Item ("D.I.") 1. While a summons and a copy of the complaint were served on Fredrico Pena the Secretary of Transportation within 120 days neither the United States Counsel's office for the District of Delaware nor the Counsel General's office in Washington DC received copies of the summons and complaint within that time period as required by Rule 4 of the Federal Rules of Civil Procedure. The United States moves to dismiss plaintiff's case based on this failure to complete service. D.I.6. For the reasons that follow the United States' motion will be granted and plaintiff's complaint dismissed without prejudice.


Plaintiff filed his lawsuit on July 17 1996. He alleges he resigned from his employment with the F.A.A. on July 22 1989 after testing positive for drug use on two occasions. D.I.1 P 5. About one year later after rehabilitating himself he began a series of attempts to seek reinstatement. Id. P 6. The F.A.A. has refused to reinstate him to this date for reasons the plaintiff alleges violate the Rehabilitation Act. Id. P 7 8. Neither the complaint nor any other papers filed in connection with this case detail the number of attempts or the dates of the attempts made by plaintiff to seek reinstatement.

Plaintiff served the Secretary of Transportation on approximately July 30 1996. D.I.6 P 2. On October 1 1996 the United States Counsel's office for the District of Delaware wrote a letter to plaintiff's Counsel indicating proper service had not been made on that office. Id. Exh. B. That letter states in pertinent part:

This letter is to confirm our telephone conversation of September 26 1996. The United States has not as yet been properly served in the above matter. I acknowledge that you have told me that you fully intend to made appropriate service. We have agreed that the time period within which the United States has to respond will not begin until proper service has been made.

Id. On December 3 1996 -- more than 120 days from the filing of the complaint and more than 2 months after the communication was sent from the United States Counsel's office -- a copy of the summons and complaint was received by the United States Counsel's office having been sent by regular mail. D.I.6 P 6.

Although there is no evidence of this plaintiff's Counsel stated that on December 1 1996 he similarly sent by regular mail a copy of the summons and complaint to the Counsel General's office in Washington DC Counsel for the United States indicated at oral argument that proper service upon the Counsel General's office in a case of this type is crucial because until such service is made no file is opened on the case and no investigation initiated. In this case no investigation of the plaintiff's has occurred the government's Counsel noted.


The United States' motion is governed by several subdivisions of Rule 4 of the Federal Rules of Civil Procedure which covers "Summons." Rule 4(m) *fn1 sets forth the "Time Limit for Service" which states in relevant part:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint Court upon motion or on its own initiative after notice to the plaintiff shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure Court shall extend the time for service for an appropriate period.

The Third Circuit Court of Appeals has interpreted Rule 4(m) "to require a court to extend time if good cause is shown and to allow a court discretion to dismiss or extend time absent a showing of good cause." MCI Telecomms. Corp. v. Teleconcepts Inc. 71 F.3d 1086 1098 (3d Cir.) (quoting Petrucelli 46 F.3d at 1305) cert. denied 136 L. Ed. 2d 25 117 S. Ct.64 (Oct. 7 1996).

Rule 4(i) also pertinent here governs "Service Upon the United States and Its Agencies Corporations or Officers." *fn2 As the defendant in this case is the U.S. Department of Transportation represented by the Secretary of Transportation plaintiff Brown must comply with this section. Rule 4(i) states:

(1) Service upon the United States shall be effected

(A) by delivering a copy of the summons and of the complaint to the United States Counsel for the district in which the action is brought or to an assistant United States Counsel or clerical employee designated by the United States Counsel in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States Counsel and

(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Counsel General of the United States at Washington District of Columbia . . . .

(3) Court shall allow a reasonable time for service of process under this subdivision for the purpose of curing the failure to serve multiple officers agencies or corporations of the United States if the plaintiff has effected service on either the United States Counsel or the Counsel General of the United States.

Rule 4(i)(3) -- providing for a reasonable time to cure failure to serve multiple agencies -- has been thought possibly to extend the 120 day time limit of Rule 4(m) in some cases involving the United States as defendant. See e.g. Espinoza 52 F.3d at 842. However the Government argues and the plaintiff did not dispute that the rule does not apply in plaintiff's favor here because the plaintiff did not meet the requirement that either the United States Counsel or the Counsel General be properly served within the 120 day period.

Therefore plaintiff's case will survive this motion to dismiss only if Court finds there was "good cause" for his failure to comply with Rule 4 or if in an exercise of its discretion Court extends the time for service. See Fed. R. Civ. P. 4(m).

1. Good Cause

The Third Circuit Court of Appeals recently discussed the "good cause" requirement in several ways relevant to the present case. See MCI Telecomms. Corp. 71 F.3d at 1096-98. Court stated:

We have equated "good cause" with the concept of "excusable neglect" of Federal Rule of Civil Procedure 6(b)(2) which requires "a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules."

Id. at 1097. The appellate court noted the "absence of prejudice [to the defendant by late service] alone can never constitute good cause . . . . While the prejudice may tip the 'good cause' scale the primary focus is on the plaintiff's reasons for not complying with the time limit in the first place." Id. *fn3

The Third Circuit Court of Appeals has evaluated the reasonableness of some bases for noncompliance with Rule 4(m). As an example it has upheld a district court's conclusion that a plaintiff's "disregard for . . . the 'technical niceties' of service of process" did not constitute good cause Ayres v. Jacobs & Crumplar P.A. 99 F.3d 565 568 (3d Cir.1996); similarly good cause will not be found based on "inadvertence " "half-hearted efforts by Counsel " or "reliance upon a third party or on a process server." Petrucelli 46 F.3d at 1307.

On the other hand a court in this district found "good cause" existed where the plaintiff made "heroic" efforts to serve the defendant. United States v. Nuttall 122 F.R.D. 163 167 (D. Del. 1988). In that case the plaintiff mailed copies of the summons and complaint to the defendant on two occasions process servers attempted to serve him personally 18 more times and Deputy United States Marshals spoke to the defendant twice by telephone and during one of those telephone calls read the complaint aloud to him. Id.

Plaintiff in the present case never attempted service on the United States Counsel's office within the 120 day period and according to his Counsel he attempted to serve the Counsel General's office once but his messenger was unable to gain entry to the proper office. When he finally did get the complaints to these governmental agencies albeit after the deadline had expired he sent the summons and complaint by regular mail instead of registered mail as required by Rule 4. This can hardly be considered compliance with Rule 4(i). In fact because the rule was not followed there is nothing in the record from which one can conclude the complaint was ever received by the Counsel General of the United States. Plaintiff's efforts at proper service must be characterized as dismal rather than heroic.

Plaintiff relies however on the advisory committee's notes accompanying Rule 4(m) for his position the time to serve should be extended for a "reasonable time." D.I.7 P 3. The advisory committee's notes state: "A specific instance of good cause is set forth in paragraph (3) of this rule which provides for extensions if necessary to correct oversights in compliance with the requirements of multiple service in actions against the United States or its officers agencies and corporations."

At oral argument plaintiff's Counsel maintained pursuant to his conversation with the United States Counsel's office prior to the October 1 1996 letter he learned the government already had a copy of his complaint and therefore thought in unnecessary to make official service. However it is unclear how the plaintiff could possibly think this; the letter he received from the government stated the complaint had not yet been served and stated its understanding plaintiff would be making proper service. The failure to serve the United States Counsel's office within the 120 day time period cannot be considered an "oversight."

Plaintiff's motion indicates another ground for a finding of good cause. It states "Defendant's Counsel was informed by plaintiff's Counsel that service upon the above two un served parties was delayed due to plaintiff's problems in securing funds in order to proceed with litigation." D.I.7 P 4. At oral argument it was explained that the plaintiff and plaintiff's Counsel were in the process of negotiating a fee agreement during this time and apparently plaintiff's Counsel had not been paid under the arrangement at the time service on the two government agencies was required. *fn4

It is clear the reasons plaintiff has advanced for his failure to complete service do not amount to good cause. In fact plaintiff's reasons fall squarely within the Third Circuit Court of Appeals' holdings in earlier cases that good cause did not exist. Plaintiff's failure to complete service on the United States evinced a "disregard for the 'technical niceties' of service " "inadvertence" and "half-hearted efforts by Counsel."

2. Court's Discretion to Extend the Period for Service

The Third Circuit Court of Appeals has not provided much guidance as to what factors should be considered by a trial court in exercising its discretion to extend the time for service under Rule 4(m). However it has held that a trial court should not consider the running of the statute of limitations until after the good cause determination has been made. Petrucelli 46 F.2d at 1306. The appellate court further stated:

We emphasize that the running of the statute of limitations does not require the district court to extend time for service of process. Rather absent a finding of good cause a district court may in its discretion still dismiss the case even after considering that the statute of limitations has run and the refilling of an action is barred.



*fn1 Rule 4(m) is the current codification of the former rule 4(j) which was amended effective December 1 1993. Petrucelli v. Bohringer and Ratzinger 46 F.3d 1298 1304 n.5 (3d. Cir.1995).

*fn2 Rule 4(i) is the current codification of the former Rule 4(d)(4) which also was amended in 1993. Espinoza v. United States 52 F.3d 838 839 n.2 (10th Cir.1995).

*fn3 Court also has opined that the "good cause" analysis employed by Court with relation to Rule 4(j) -- Rule 4(m)'s predecessor -- is equally applicable to the "good cause" analysis under Rule 4(m). Petrucelli 46 F.3d at 1307 n.11.

*fn4 Plaintiff's Counsel did admit his client had forwarded to him the filing fees for the complaint and further that the postage and copying costs associated with serving the two governmental agencies were negligible.