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Jamil v. U.S.

United States District Court, N.D. California, San Jose Division
Sep 12, 2005
No. 5:05-cv-258 RS (N.D. Cal. Sep. 12, 2005)

Opinion

No. 5:05-cv-258 RS.

September 12, 2005


ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE FOR FAILURE PROPERLY TO SERVE DEFENDANTS


I. INTRODUCTION

Defendants United States of America (the "United States") and the United States Postal Service (the "USPS") seek dismissal of the amended complaint for breach of contract filed by plaintiff Nasir Jamil ("Jamil") on the argument that Jamil: (1) failed to serve the summons and amended complaint on defendants, in accordance with the Court's prior order and the requirements set forth in Fed.R.Civ.Pro. 4(i) and (2) failed to exhaust his administrative remedies prior to filing this action. Jamil, who is pro se, filed no opposition to the motion, which was scheduled to be heard by the Court on August 17, 2005. At the appointed hearing time, Jamil did not appear and, accordingly, an order to show cause as to why the case should not be dismissed was issued. In response, Jamil appeared in Court as ordered on August 31, 2005 and stated that he believes he has exhausted all administrative remedies and that the filing of any further appeals by him would prove futile. Jamil did not address defendants' contention of inadequate service.

Jamil's claim for negligence was dismissed with prejudice in the Court's prior order. See Order filed on May 31, 2005 at p. 5.

Based on all papers filed to date, the oral argument of the parties, and the record in this action, the motion to dismiss is granted without prejudice for failure to serve defendants. As a result, the Court need not reach the alternative grounds for dismissal concerning the exhaustion of administrative remedies.

II. BACKGROUND

The factual background of this action is set forth in the Court's order of May 31, 2005 and the amended complaint does not allege different facts, with the exception of new averments under the heading, "Exhausted all administrative remedies." See Amended Complaint at p. 1. Jamil alleges that on October 23, 2004, he filed a claim against the USPS for the loss of his laptop. Id. at ¶ 1. That claim was denied on November 11, 2004, and appealed by Jamil on November 16, 2004. Id. In addition, Jamil filed a second appeal on November 17, 2004. Id. at ¶ 3. He then filed a third appeal, this time directed to the USPS headquarters, on December 31, 2004, presumably in response to the denial of his prior appeals on December 28, 2004. Id. at ¶ 4. Based on this sequence of events, Jamil contends that he has properly pled the exhaustion of all administrative remedies.

Although not alleged in Jamil's complaint, the USPS acknowledges that Jamil's appeal was denied on December 28, 2004.See Declaration by Marguerite Breault.

Defendants argue, however, that Jamil did not exhaust his remedies prior to the time that he filed his original complaint in state court on December 14, 2004, since he admittedly filed a final appeal on December 31, 2004. Moreover, they note that the record indicates that Jamil has an outstanding appeal to which he has not yet received a response, thereby contending that such fact also supports the dismissal of this action. Even assuming that exhaustion has been completed, defendants aver that they have not been properly served with the summons and amended complaint in this case.

III. STANDARDS

Federal Rule of Civil Procedure 4(m) provides that service of the summons and complaint must be made upon a defendant within 120 days after the filing of the complaint, unless the court for good cause shown extends the time for an appropriate period. Failure to comply with Rule 4 may result in the dismissal without prejudice of the complaint. Id. Rule 4(i) proscribes the manner in which a plaintiff must serve the United States and any of its agencies, corporations, officers, or employees.

IV. DISCUSSION

As noted, defendants move to dismiss Jamil's amended complaint on the basis that the proof of service fails to show that service was effected upon them in the manner prescribed by Fed.R.Civ.Pro. 4(i). Although Jamil contends that service was properly effected, the proof of service submitted to the Court shows only that, on April 29, 2005, a copy of an amended complaint was mailed to Assistant United States Attorney Mark St. Angelo. There is no proof of service indicating that Mr. St. Angelo was subsequently served with the present amended complaint, nor does the submitted proof of service comply with the requirements of Fed.R.Civ.Pro. 4(i)(1)(A) and (B). As a result, it does not appear that service was properly effected on the defendants. Therefore, pursuant to Fed.R.Civ.Pro. 4, the Court dismisses this case without prejudice based upon Jamil's failure to serve defendants in the proper manner.

V. CONCLUSION

For the reasons set forth herein, defendants' motion to dismiss Jamil's amended complaint is granted. Jamil may, assuming his administrative appeal is denied, refile this action and properly serve the defendants with a new summons and complaint. The case management conference set for September 28, 2005 is, therefore, vacated.

IT IS SO ORDERED.


Summaries of

Jamil v. U.S.

United States District Court, N.D. California, San Jose Division
Sep 12, 2005
No. 5:05-cv-258 RS (N.D. Cal. Sep. 12, 2005)
Case details for

Jamil v. U.S.

Case Details

Full title:NASIR JAMIL, Plaintiff, v. UNITED STATES OF AMERICA AND UNITED STATES…

Court:United States District Court, N.D. California, San Jose Division

Date published: Sep 12, 2005

Citations

No. 5:05-cv-258 RS (N.D. Cal. Sep. 12, 2005)

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