Rust v. City of Kansas City

107 F.R.D. 370, 3 Fed. R. Serv. 3d 34, 1985 U.S. Dist. LEXIS 15900

• Court: District Court, W.D. Missouri
• Decided: September 17, 1985
• Docket: No. 85-1016-CV-W-6
• Status: Published

Opinion

ORDER

SACHS, District Judge.

This lawsuit was filed on August 16, 1985, and plaintiff mailed process pursuant to Federal Rule of Civil Procedure 4(c)(2)(C)(ii) on the same day. Acknowledgements of service, dated September 6, 1985, were subsequently returned. Plaintiff then filed a motion for default judgment on September 10, 1985. Defendants responded with a motion for leave to file a motion to dismiss out of time, contending that the deadline has not run, but requesting leave to file out of time in the event of an adverse ruling.

The Rules do not specifically deal with the question of when service is effected under Rule 4(c)(2)(C)(ii). The court notes, however, that defendants are not required to accept service attempted under this provision. The only sanction for failure to do so is the imposition of costs resulting from the necessity of making personal service. Fed.R.Civ.P. 4(c)(2)(D). If defendants are free to reject service entirely, they are surely to be accorded some flexibility in ■determining the time at which it is accepted. The court therefore concludes that service of process is effected under Rule 4(c)(2)(C)(ii) on the date the acknowledgement is signed, so long as the acknowledgement is made within the requisite 20 days of mailing of the process. Accordingly, it is hereby

ORDERED that plaintiffs motion for default judgment is DENIED without prejudice. The motion may be renewed after September 26, 1985, if plaintiff believes a default exists at that time. Since defendants’ deadline in which to answer or otherwise respond has not run, it is further

ORDERED that defendants’ motion for leave to file a motion to dismiss out of time is DENIED as premature.