Dowdy v. Sullivan

138 F.R.D. 99, 1991 U.S. Dist. LEXIS 11826, 1991 WL 163815
CourtDistrict Court, E.D. Tennessee
DecidedFebruary 22, 1991
DocketNo. 90-1114
StatusPublished
Cited by3 cases

This text of 138 F.R.D. 99 (Dowdy v. Sullivan) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dowdy v. Sullivan, 138 F.R.D. 99, 1991 U.S. Dist. LEXIS 11826, 1991 WL 163815 (E.D. Tenn. 1991).

Opinion

ORDER GRANTING DEFENDANT’S MOTION FOR DISMISSAL

TODD, District Judge.

This case involves plaintiff’s appeal of defendant’s denial of social security disability insurance benefits and supplemental security income. It is undisputed that plaintiff has exhausted all administrative remedies and is in this court for judicial review of the defendant’s final decision. 42 U.S.C. § 405(g) (1988). Before the court is defendant’s motion for dismissal alleging improper service of process. Fed.R.Civ.P. 4(d)(4) & (5) and 4(j). Plaintiff has responded to the motion. The court has considered the pleadings and the applicable law and concludes that defendant’s motion should be GRANTED.

It is undisputed that defendant issued its final decision concerning plaintiff’s request for benefits on April 11, 1990. 42 U.S.C. § 405(g) provides for judicial review and requires that “a civil action [be] commenced within sixty days [after a final decision] or within such other time as the Secretary may allow.” Plaintiff filed this action on June 15, 1990, within the sixty day requirement, and attempted to serve defendant. Copies of the summons and the complaint were forwarded by certified mail to the United States Attorney for the Western District of Tennessee, the Attorney General of the United States in Washington, D.C. and to the defendant.

Defendant contends that service of process on the United States was improper because there was no “delivery” as required by Fed.R.Civ.P. 4(d)(4) & (5) which provide:

4(d) Summons and Complaint: Person to be Served. The summons and complaint shall be served together____ Service shall be made as follows:
(4) Upon the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought ... and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States____
(5) Upon an officer or agency of the United States, by serving the United States and by sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency____

Proper service upon the United States requires personal service, not service by certified mail. Defendant cites Fed.R.Civ.P. 4(j) for the consequences of not properly serving the United States within the alloted time. Rule 4(j) provides that:

4(j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice____

Defendant contends that compliance with Rule 4(d)(4) & (5) is mandatory. Light v. Wolf, 816 F.2d 746, 748 n. 5 (D.C.Cir.1987). Further, defendant contends that dismissal of this action is mandatory, absent good cause shown, for failure to comply with Rule 4(j). United States v. Gluklick, 801 F.2d 834, 837 (6th Cir.1986).

Plaintiff argues that dismissal is not required because 28 U.S.C. § 1391(e) allows for service to be made upon defendant by certified mail. § 1391 is the general venue statute for federal district courts. Subsection (e) states where venue is proper when the defendant is an officer or employee of the United States. Subsection (e) goes on to state that “the summons and complaint ... shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district [101]*101in which the action is brought.” § 1391(e) allows delivery of the summons and complaint to be made by certified mail to the “officer or agency.” This is consistent with Rule 4(d)(5), which allows for service of process by certified mail upon an officer or agency of the United States. Nothing in § 1391(e), however, contravenes the requirement in Rule 4(d)(4) and (5) to also serve the United States and service upon the United States requires personal service.

Federal courts have permitted process defects to be cured when dismissal would mean the barring of plaintiffs claim because of the running of the statute of limitations. Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir.1984); Jordan v. United States, 694 F.2d 833, 836 (D.C.Cir.1982); Vance v. United States, 126 F.R.D. 14, 15 (E.D.N.Y.1989); Ruppert v. Secretary of United States Dept. of Health, 671 F.Supp. 151, 188-89 (E.D.N.Y.1987); Williams v. General Services Adm., 582 F.Supp. 442, 443 (E.D.Pa.1984). Courts that have permitted process defects to be cured have required the satisfying of a four part test.

[F]ailure to comply with Rule 4(d)(5)’s personal service requirement does not require dismissal of the complaint if (a) the party to be served personally received actual notice, (b) the defendant would suffer no prejudice from the defect in service, (c) there is a justifiable excuse for the failure to serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were dismissed.

Borzeka, 739 F.2d at 447. Thus, failure to comply with Rule 4(d)(5)’s personal service requirement does not require dismissal of the complaint if (a) the party to be served personally received actual notice, (b) the defendant would suffer no prejudice from the defect in service, (c) there is a justifiable excuse for the failure to serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were dismissed. Borzeka, 739 F.2d at 447. Application of (a), (b) and (d) is rather simple in this case. Defendant did receive actual notice of the complaint and would not suffer prejudice from the defect in service. On the other hand, plaintiff is severely prejudiced if this complaint is dismissed because the statute of limitations prohibits the refiling of his complaint.

The filing of a complaint pursuant to 42 U.S.C. § 405(g) for judicial review of defendant’s decision to deny disability benefits must be accomplished within 60 days of defendant’s final decision, which was on April 11, 1990. An additional five days is added for notice through the mail.

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Cite This Page — Counsel Stack

Bluebook (online)
138 F.R.D. 99, 1991 U.S. Dist. LEXIS 11826, 1991 WL 163815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowdy-v-sullivan-tned-1991.