McDonald v. United States

898 F.2d 466, 1990 WL 36217

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 18, 1990
• Docket: No. 89-4510
• Status: Published

Opinions

W. EUGENE DAVIS, Circuit Judge:

Peggy McDonald appeals the dismissal of her suit against the United States for failure to serve the U.S. Attorney, as required by Fed.R.Civ.P. 4(d)(4). We affirm.

I.

Peggy McDonald brought this action under the Federal Tort Claims Act alleging that her husband had died as a result of negligent medical treatment at the hands of an Air Force physician. McDonald sent a copy of her petition by certified mail to the United States Attorney General, the United States Attorney for the district in which she had brought suit, and the local Assistant United States Attorney. Although McDonald also sent an acknowledgment of service form to each, none was executed and returned.

The United States included the defense of insufficiency of process in its answer. The case then proceeded toward trial with the United States engaging in discovery and agreeing to a scheduling order. One hundred and twenty-six days after suit was filed, the United States sought dismissal under Rule 4(j). The trial court found that the United States had not been properly served and that McDonald had not shown good cause for the lack of service. The court dismissed the case and McDonald appealed.

II.

Rule 4(j) requires dismissal of a defendant who has not been served within one hundred and twenty days after the complaint is filed unless “good cause” is shown. McDonald concedes that the United States was not properly served within the one hundred and twenty-day period, but argues: (i) the United States waived the defect in service; and (ii) the trial court abused its discretion by not finding good cause for McDonald’s failure to serve.

We can quickly dispense with McDonald’s first argument. The United States preserved its objection to the sufficiency of process by asserting the defense in its answer. See Way v. Mueller Brass Co., 840 F.2d 303, 306 (5th Cir.1988). Hence, the only real question on this appeal is whether McDonald had good cause for not serving the United States within the prescribed period.

Because Rule 4(j) was added a relatively short time ago, “good cause” is not yet fully defined in this circuit. However, we have equated good cause with “excusable neglect,” and noted that “inadvertence or mistake of counsel or ignorance of the rules usually does not suffice,” and that “some showing of ‘good faith ... and [a] reasonable basis for noncompliance within the time specified’ ” is necessary to show good cause. Winters v. Teledyne, 776 F.2d 1304, 1306 (5th Cir.1985) (quoting 4A C. Wright & A. Miller, Federal Practice and Procedure: 1165 (2d ed. 1987)). We review the trial judge’s determination of “good cause” or lack thereof under an abuse of discretion standard. Wei v. State of Hawaii, 763 F.2d 370, 371 (9th Cir.1985).

McDonald argues that the United States, by engaging in discovery and participating in scheduling, misled her attorney into believing that service was completed; hence, she argues, good cause existed for her failure to serve the United States within the prescribed period. However, this circuit has indicated its unwillingness to consider ignorance of deficient service a “good cause” for failure to serve properly where the defendant has clearly raised the insufficiency of service in its answer. See Way, 840 F.2d at 306. McDonald does not contend that the United States took affirmative steps to mislead her; rather, she contends that by proceeding with the case in the usual manner after it raised the insufficiency of process defense, the United States duped her into believing that it would not press that defense. We cannot say that the trial court abused its discretion in failing to find good cause where the defendant clearly raised its defense of inadequate service and then proceeded to defend the case without doing anything in particular to mislead the plaintiff into believing that it had given up that defense.

McDonald also suggests that the United States somehow evaded service by refusing to execute and return the acknowledgment of service, and therefore that she had good cause for failing to complete service within 120 days. We cannot agree. First of all, only individuals and foreign or domestic corporations may be served by mail and acknowledgment under Rule 4(c)(2)(C)(ii). See Norlock v. City of Garland, 768 F.2d 654, 656 (5th Cir.1985). The United States does not fit into either category. See 4A C. Wright & A. Miller, Federal Practice and Procedure: 1092.1 (2d ed. 1987). But even if the United States could be served by mail, no party is required to return the acknowledgment and thus submit to mail service. The only penalty Congress intended for a party that fails to return the acknowledgment is that the party pay the costs of personal service. See Combs v. Nick Garin Trucking, 825 F.2d 437, 447 (D.C.Cir.1987); 2 J. Moore, J. Lucas, H. Fink, C. Thompson, Moore’s Federal Practice, 4.08[4] (2d ed. 1989). For these reasons, we reject McDonald’s argument.

McDonald’s remaining arguments have already been expressly rejected by this circuit. For example, while McDonald emphasizes that the United States was properly served a short time after the 120 day period elapsed, we have held that “[ljater service ... is irrelevant” to whether good cause existed during the 120 day period. Winters, 776 F.2d at 1306. McDonald also cites the fact that the limitations period has run on her claim and hence dismissal denies her any relief; but we have noted that Rule 4(j) dismissal is not unwarranted simply because the limitations period has run. Winters, 776 F.2d at 1307. McDonald asserts that because a certified mail receipt was returned to her attorney, the attorney believed that service had been completed; but we have made it very clear that ignorance of the rules of proper service is not good cause. Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.1988).

McDonald failed to complete service within 120 days, failed to persuade the district court that good cause existed, and has now failed to persuade us that the district court abused its discretion in so finding.¹ We therefore affirm the dismissal.

AFFIRMED.

1 . The dissent relies on the absence of "aggravating factors” in this case. See, e.g., Fournier v. Textron, 776 F.2d 532, 534 (5th Cir.1985). These factors were developed under the law as it existed before Rule 4(j) was enacted. Under Rule 4(j), dismissal for delayed service is not left to the general discretion of the district court; dismissal is mandatory unless “good cause” is shown. See Winters, 776 F.2d at 1305. Hence, insofar as dismissal under Rule 4(j) is concerned, the only consideration is "good cause,” and therefore these "aggravating factors” have no relevance. Consistent with this, we have never relied on the "aggravating factors" when reviewing Rule 40) dismissals.