Opinion
Civil No. 04-5094 (RBK), Docket No. 7.
November 21, 2005
ORDER
THIS MATTER having come before the Court upon motion by Defendant John E. Potter, Postmaster General, United States Postal Service ("Defendant"), under Federal Rule of Civil Procedure ("Rule") 12(b)(5) to dismiss the complaint of pro se Plaintiff Alexander Conrad ("Conrad") for insufficient service of process as required by Rule 4(m);
IT APPEARING TO THE COURT that this Court approved Conrad's application to proceed in forma pauperis on November 5, 2004, and that the United States Marshals served a summons on John E. Potter and the USPS in December 2004, in accordance with Conrad's instructions and Rule 4(c)(2);
IT FURTHER APPEARING TO THE COURT that the office of United States Attorney Christopher Christie sent Conrad a letter on February 1, 2005, to inform him that service was incomplete under Rule 4(i)(2), that Conrad replied by later on March 4, 2005, attempting to effectuate service by enclosing a copy of the complaint without including a summons, that the U.S. Attorney's office sent Conrad a second letter on July 6, 2005, notifying Conrad that service remained defective, and that Defendant filed its motion to dismiss less than two weeks later, on July 19, 2005;
IT FURTHER APPEARING TO THE COURT that Conrad filed a letter with this Court on September 6, 2005, requesting the Court deny the motion to dismiss because: "I have not received yet any response to my application for 'pro bono counsel'," and "lack of cooperation from Christopher J. Christie," and because Conrad has a new address "where mail comes to me 2 to 4 weeks late," (Pl.'s Opp. Def.'s Mot. Dismiss, filed September 6, 2005);
THE COURT FINDING that when suing a federal officer, such as the Postmaster General, in his official capacity, the plaintiff must also serve both the United States Attorney and the Attorney General of the United States, pursuant to Rule 4(i); Jones v. Frank, 973 F.2d 872 (1992); Shore v. Henderson, 168 F. Supp. 2d 428, 431 (E.D. Pa. 2001); Boucher v. Potter, 2005 WL 1183148, *2 (S.D. Ind. 2005);
THE COURT FURTHER FINDING that Rule 4(m) permits courts to dismiss suits where "service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint" unless "the plaintiff shows good cause for the failure," Fed.R.Civ.P. 4(m); Abdel-Latif v. Wells Fargo Guard Services, Inc., 122 F.R.D. 169, 171 (D.N.J. 1988), and that "the district court may, in its discretion, extend time even absent a finding of good cause," Petrucelli v. Bohringer Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995);
THE COURT FURTHER FINDING that "[p]ro se litigants are allowed more latitude than litigants represented by counsel to correct defects in service of process and pleadings," Moore v. Agency for Intern. Dev., 994 F.2d 874, 876 (D.C. Cir. 1993); see also Welch v. Folsom, 925 F.2d 666, 667 (3d Cir. 1991), that the prejudice to Defendant for lack of timely service is minimal,MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (citation omitted), and that "Rule 4(i) is a lengthy and complicated rule [and] . . . it is understandable that a pro se litigant might fail to fulfill all of Rule 4(i)'s requirements," Olsen v. Mapes, 333 F.3d 1199, 1205 (10th Cir. 2003);
IT IS HEREBY ORDERED that Conrad should properly serve process on the United States Attorney and the Attorney General of the United States on or before Friday, December 30, 2005. If Plaintiff does not effectuate service within that time, this action will be dismissed sua sponte by this Court pursuant to Federal Rule of Civil Procedure 4(m);
IT IS FURTHER ORDERED that Defendant's motion to dismiss is DENIED.