Roussell v. USA CV-95-247-SD 11/16/95 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Stephanie Roussell
v. Civil No. 95-247-SD
United States of America
O R D E R
In this civil action, plaintiff Stephanie Roussell brings a
personal injury claim under the Federal Tort Claims Act (FTCA)
against, inter alia, the United States of America for injuries
she received as a result of a single-car motor vehicle accident
in the White Mountain National Forest.
Presently before the court is the government's motion to
dismiss for insufficiency of service of process pursuant to Rule
12(b)(5), Fed. R. Civ. P. Plaintiff has objected thereto,1 and
the government has filed a brief in replication.
xIn her objection, plaintiff noted that she had delivered a copy of the summons and complaint to the Attorney General of the United States by certified mail/return receipt reguested on October 20, 1995. Objection 5 12. Plaintiff has subseguently filed with the court a Notice of Service which indicates that the Attorney General received said materials on October 24, 1995. See United States Postal Service Domestic Return Receipt card (attached to Notice of Service). Background
On or about January 9 , 1993, plaintiff was driving on a loop
road in the Glen Ellis Falls parking area of the White Mountain
National Forest when her vehicle encountered a patch of ice on
the roadway. Complaint 55 6, 8, 11. As an alleged conseguence
thereof, "plaintiff's vehicle went off the right side of the
access road, struck an embankment, a large rock and finally a
tree stump." I d . 5 12. By complaint filed May 9, 1995,
plaintiff alleges a single count of negligence against the United
States for its failure to provide adeguate warnings regarding the
condition of the Glen Ellis Falls parking area roadway.
Plaintiff effected service upon the United States Attorney
for the District of New Hampshire on August 8, 1995.
Government's Motion to Dismiss at 2. However, as of October 20,
1995, plaintiff had failed to effect service upon the Attorney
General of the United States. See Declaration of Judith Northrup
Prindiville 5 3 (attached to Government's Motion to Dismiss as
Exhibit C ) .
Discussion
Defendant has moved to dismiss the instant action pursuant
to Rule 12(b)(5), Fed. R. Civ. P., for insufficiency of service
of process. Specifically, defendant asserts that although
2 plaintiff has properly served the United States Attorney for the
district in which the action is brought, she has failed to
satisfy the further particular requirements of Rule 4 (i)(1);
namely, to serve a copy of the complaint upon the Attorney
General of the United States. Although plaintiff denies that she
has failed to comply with Rule 4 (i)'s service requirement, see
Objection 5 6, she indicates that a summons and complaint was
delivered to the Attorney General on October 20, 1995, see
Affidavit of Craig F. Evans 5 3 (appended to Plaintiff's
Obj ection) .
"In suits against . . . the United States pursuant to the
FTCA, the United States is the real defendant and Rule 4 (i)(1)
and (2) applies." Armstrong v. Sears, 33 F.3d 182, 187-88 (2d
Cir. 1994).2 "Accordingly, failure to serve the United States as
2Rule 4, Fed. R. Civ. P., provides in pertinent part:
(i) Service Upon the United States, and Its Agencies, Corporations, or Officers. (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 attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the
3 required by Rule 4(1)(1) and (2) would warrant dismissal pursuant
to 4 (m) for failure to serve a defendant." I d . at 188.3
"Rule 4(1), as amended in 1993, retains much of the text of
former subdivisions (d)(4) and (d)(5) . . . . As before, a
summons must be served upon both the United States Attorney for
the district where the action is brought and the Attorney General
of the United States." 4A C h a r l e s A. W r i g h t & A r t h u r R. M i l l e r ,
F ed er al P r a ct ice an d P r o c e d u r e : C ivil 2 d § 1106, at 30 (Supp. 1995) .
Failure to comply with either or both of these requirements normally will lead to a dismissal of the action, although some federal courts have been more liberal and have permitted the defect to be cured in a range of circumstances, including the barring of a plaintiff's claim because the statute of limitations had run.
I d . at 31; see also McLamb v. United States P e p 't of Treasury,
858 F. Supp. 1042, 1043 (S.D. Cal. 1994) (plaintiff's case
complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and (B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia
Rule 4 (i)(1)(A)- (B), Fed. R. Civ. P.
3The court notes that such dismissal is "without prejudice." Rule 4 (m), Fed. R. Civ. P. Alternatively, the court may "direct that service be effected within a specified time . . . ." I d .
4 dismissed without prejudice for failure to serve both United
States Attorney for district and Attorney General of United
States) .
The court notes, however, that Rule 4 was additionally
amended to include the following subsection:
The 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 attorney or the Attorney General of the United States.
Rule 4(1)(3), Fed. R. Civ. P. (emphasis added). Although there
is little case law governing the interpretation of this new
provision, the commentators here indicated that this subsection
provides that as long as service was properly effected on either the U.S. Attorney or the Attorney General, the failure to effect reguired service on any other officer, agency, or corporation may be cured by the plaintiff through leave of court, with a time extension allowed for the purpose. The prerequisite is that service was properly made on either the U.S. Attorney or the Attorney General, and the provision should also be construed to allow late service on the other as lonq as proper service was made on o n e . In other words, the "officers" included in the phrase "multiple officers" in the provision allowing a cure should include both the U.S. Attorney and Attorney General .
David G. Siegel, S u p p l e m e n t a r y P r a c t i c e C o m m e n t a r i e s to R ule 4, 2 8
U.S.C.A. Rule 4, § C4-27, at 73 (West Supp. 1995) (emphasis
5 added); see also 4A W r i g h t & M i l l e r , supra, § 1106, at 30
("Paragraph (3) saves the plaintiff from the risk of losing a
substantive right because of a failure to comply with the complex
reguirements of multiple service under this subdivision. This
provision should be read in conjunction with the provision for
relation back of amendments in Rule 15(c) ."); 2 J a m e s W m .
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Roussell v. USA CV-95-247-SD 11/16/95 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Stephanie Roussell
v. Civil No. 95-247-SD
United States of America
O R D E R
In this civil action, plaintiff Stephanie Roussell brings a
personal injury claim under the Federal Tort Claims Act (FTCA)
against, inter alia, the United States of America for injuries
she received as a result of a single-car motor vehicle accident
in the White Mountain National Forest.
Presently before the court is the government's motion to
dismiss for insufficiency of service of process pursuant to Rule
12(b)(5), Fed. R. Civ. P. Plaintiff has objected thereto,1 and
the government has filed a brief in replication.
xIn her objection, plaintiff noted that she had delivered a copy of the summons and complaint to the Attorney General of the United States by certified mail/return receipt reguested on October 20, 1995. Objection 5 12. Plaintiff has subseguently filed with the court a Notice of Service which indicates that the Attorney General received said materials on October 24, 1995. See United States Postal Service Domestic Return Receipt card (attached to Notice of Service). Background
On or about January 9 , 1993, plaintiff was driving on a loop
road in the Glen Ellis Falls parking area of the White Mountain
National Forest when her vehicle encountered a patch of ice on
the roadway. Complaint 55 6, 8, 11. As an alleged conseguence
thereof, "plaintiff's vehicle went off the right side of the
access road, struck an embankment, a large rock and finally a
tree stump." I d . 5 12. By complaint filed May 9, 1995,
plaintiff alleges a single count of negligence against the United
States for its failure to provide adeguate warnings regarding the
condition of the Glen Ellis Falls parking area roadway.
Plaintiff effected service upon the United States Attorney
for the District of New Hampshire on August 8, 1995.
Government's Motion to Dismiss at 2. However, as of October 20,
1995, plaintiff had failed to effect service upon the Attorney
General of the United States. See Declaration of Judith Northrup
Prindiville 5 3 (attached to Government's Motion to Dismiss as
Exhibit C ) .
Discussion
Defendant has moved to dismiss the instant action pursuant
to Rule 12(b)(5), Fed. R. Civ. P., for insufficiency of service
of process. Specifically, defendant asserts that although
2 plaintiff has properly served the United States Attorney for the
district in which the action is brought, she has failed to
satisfy the further particular requirements of Rule 4 (i)(1);
namely, to serve a copy of the complaint upon the Attorney
General of the United States. Although plaintiff denies that she
has failed to comply with Rule 4 (i)'s service requirement, see
Objection 5 6, she indicates that a summons and complaint was
delivered to the Attorney General on October 20, 1995, see
Affidavit of Craig F. Evans 5 3 (appended to Plaintiff's
Obj ection) .
"In suits against . . . the United States pursuant to the
FTCA, the United States is the real defendant and Rule 4 (i)(1)
and (2) applies." Armstrong v. Sears, 33 F.3d 182, 187-88 (2d
Cir. 1994).2 "Accordingly, failure to serve the United States as
2Rule 4, Fed. R. Civ. P., provides in pertinent part:
(i) Service Upon the United States, and Its Agencies, Corporations, or Officers. (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 attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the
3 required by Rule 4(1)(1) and (2) would warrant dismissal pursuant
to 4 (m) for failure to serve a defendant." I d . at 188.3
"Rule 4(1), as amended in 1993, retains much of the text of
former subdivisions (d)(4) and (d)(5) . . . . As before, a
summons must be served upon both the United States Attorney for
the district where the action is brought and the Attorney General
of the United States." 4A C h a r l e s A. W r i g h t & A r t h u r R. M i l l e r ,
F ed er al P r a ct ice an d P r o c e d u r e : C ivil 2 d § 1106, at 30 (Supp. 1995) .
Failure to comply with either or both of these requirements normally will lead to a dismissal of the action, although some federal courts have been more liberal and have permitted the defect to be cured in a range of circumstances, including the barring of a plaintiff's claim because the statute of limitations had run.
I d . at 31; see also McLamb v. United States P e p 't of Treasury,
858 F. Supp. 1042, 1043 (S.D. Cal. 1994) (plaintiff's case
complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and (B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia
Rule 4 (i)(1)(A)- (B), Fed. R. Civ. P.
3The court notes that such dismissal is "without prejudice." Rule 4 (m), Fed. R. Civ. P. Alternatively, the court may "direct that service be effected within a specified time . . . ." I d .
4 dismissed without prejudice for failure to serve both United
States Attorney for district and Attorney General of United
States) .
The court notes, however, that Rule 4 was additionally
amended to include the following subsection:
The 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 attorney or the Attorney General of the United States.
Rule 4(1)(3), Fed. R. Civ. P. (emphasis added). Although there
is little case law governing the interpretation of this new
provision, the commentators here indicated that this subsection
provides that as long as service was properly effected on either the U.S. Attorney or the Attorney General, the failure to effect reguired service on any other officer, agency, or corporation may be cured by the plaintiff through leave of court, with a time extension allowed for the purpose. The prerequisite is that service was properly made on either the U.S. Attorney or the Attorney General, and the provision should also be construed to allow late service on the other as lonq as proper service was made on o n e . In other words, the "officers" included in the phrase "multiple officers" in the provision allowing a cure should include both the U.S. Attorney and Attorney General .
David G. Siegel, S u p p l e m e n t a r y P r a c t i c e C o m m e n t a r i e s to R ule 4, 2 8
U.S.C.A. Rule 4, § C4-27, at 73 (West Supp. 1995) (emphasis
5 added); see also 4A W r i g h t & M i l l e r , supra, § 1106, at 30
("Paragraph (3) saves the plaintiff from the risk of losing a
substantive right because of a failure to comply with the complex
reguirements of multiple service under this subdivision. This
provision should be read in conjunction with the provision for
relation back of amendments in Rule 15(c) ."); 2 J a m e s W m . M o o r e ,
M o o r e 's F e d e r a l P r a c t i c e , 5 4.14 [2], at 4-276 (1995) ("Rule 4(1) (3),
added by the 1993 amendments, is intended to avoid the risk of
the loss of a substantial right for failing to correctly effect
multiple service.").
Insofar as plaintiff has correctly served the United States
Attorney for the District of New Hampshire, this case is put
sguarely within the savings clause of Rule 4 (i)(3). Given "the
simple manner in which the service deficiency can be cured, and
the absence of any articulated prejudice to the government,"
Rogue v. United States, 857 F.2d 20, 22 (1st Cir. 1988) (per
curiam), the court finds that dismissal, even without prejudice,
is too harsh a sanction.4 Accord Benjamin v. Grosnick, 999 F.2d
590, 592 (1st Cir. 1993), cert, denied sub nom., Grosnick v.
4The court does note, however, the government's repeated efforts to ensure literal compliance with the dictates of Rule 4(1). See Letters from T. David Plourde, Assistant U.S. Attorney, to Attorney Craig F. Evans dated July 14, 1995, and August 9, 1995 (attached to Government's Reply Memorandum of Law as Attachments 1 and 3) .
6 Embriano, U.S. , 114 S. C t . 1057 (1994). Moreover, as of
the date of this order, plaintiff has cured the alleged
deficiency by serving the Attorney General of the United States
in the manner contemplated by Rule 4(1)(1)(B). In conseguence
thereof, the government's motion must be and herewith is denied.
Conclusion
For the reasons set forth herein, the government's motion to
dismiss for insufficient service of process (document 4) is
denied.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
November 16, 1995
cc: Craig F. Evans, Esg. T. David Plourde, Esg.