Opinion
Civil Action 03-1974 (HHK).
February 11, 2005
MEMORANDUM OPINION AND ORDER
Plaintiff Devvy Kidd ("Kidd") brings this action against defendant Department of the Treasury ("Treasury") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. Kidd alleges that Treasury has failed to respond to her request for records of correspondence or communication between then-Secretary of the Treasury Paul O'Neill ("O'Neill") and various other government officials "dealing with Bob Schultz and the We the People Foundation." Compl. ¶¶ 5-8; Ex. 1 to Compl. at 1. Treasury responds that Kidd has failed to effectuate proper service of process, and therefore moves the court to dismiss her complaint [#6]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be denied.
Kidd has not numbered or otherwise itemized the exhibits she attaches to her complaint. The court provides exhibit numbers for ease of reference.
I. BACKGROUND
On March 10, 2002, Kidd initiated her FOIA request by sending a letter to Treasury asking for "all notes, which include hand-written material, memorandums, directives, correspondence, inter-agency memorandums, [and] phone records" concerning Bob Schultz and the We the People Foundation, prepared by O'Neill (and his staff) and directed to three other government officials — Daniel Bryant, John Ashcroft, and Charles Rossotti. Ex. 1 to Compl. at 1-2; Compl. ¶ 5. Kidd's request also sought any similar records prepared by the three specified government officials and directed to O'Neill or his staff. Id.
FOIA requires an agency to determine within 20 days of receiving an information request whether to comply with the request, and directs that the agency "shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination." 5 U.S.C. § 552 (6)(A)(i). A FOIA requester is deemed to have exhausted her administrative remedies if the agency fails to comply with this time limit provision. Id. § 552 (6)(C)(i). On July 13, 2002, Kidd sent a letter to Treasury indicating that she had received no response to her records request. Ex. 2 to Compl. at 1. Later, on December 9, 2002, Kidd again wrote to Treasury, stating that she had still received no communication from the agency. Ex. 3 to Compl. at 1. Finally, after receiving no reply to any of these inquiries, Kidd filed the present action in the Eastern District of California on February 5, 2003. The case was transferred to this district on September 24, 2003.
II. ANALYSIS
A. Legal Standard
A motion to dismiss under Fed.R.Civ.P. 12(b)(5) may be granted when the plaintiff has failed to properly effectuate service of process. Likewise, Fed.R.Civ.P. 4(m) directs that if service has not been made upon a defendant within 120 days after the filing of the complaint, the court shall either dismiss the action without prejudice or "direct that service be effected within a specified time."
When a plaintiff sues the United States or one of its agencies, Fed.R.Civ.P. 4(i) provides the relevant service requirements. To properly effectuate service, the plaintiff must provide a copy of the summons and complaint, by specified methods, both to the United States Attorney for the district in which the action is brought, and to the Attorney General of the United States. When a plaintiff sues an agency of the United States, as Kidd does here, she must additionally send a copy of the summons and complaint to the agency by registered or certified mail. Fed.R.Civ.P. 4(i)(2)(A).
The Rule provides that service upon the United States is 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 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 . . .
Fed.R.Civ.P. 4(i)(1)(A), (B) (emphases added).
If the plaintiff fails to comply with these rules, proper service has not been effected, and the defendant may then move to dismiss the complaint under Fed.R.Civ.P. 12(b)(5). The plaintiff then bears the burden of establishing that she has properly effected service of process. Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003) (citing Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (internal citation omitted)).
B. Discussion
In the present suit, it is undisputed that Kidd has properly served both the United States Attorney for the Eastern District of California, where she originally filed this action, and the Department of the Treasury itself. See Exs. A, C, F, G to Def.'s Mot. to Dismiss. It is equally undisputed that Kidd has failed to serve the Attorney General, as required by Fed.R.Civ.P. 4(i)(1)(B). In opposing Treasury's motion to dismiss, Kidd notes that she "mistakenly believed that because the summons was served upon the United States Attorney, who works for the Attorney General, that the Attorney General would be served since it's the same agency." Pl.'s Opp'n at 1. The Rule's language, however, is not opaque or ambiguous: a plaintiff suing the United States must serve both the United States attorney and the Attorney General. As Treasury points out, the agency itself also notified Kidd by letter dated March 11, 2003, that she had failed to accomplish proper service, and instructed her how to remedy the defect. Ex. B to Def.'s Mot. to Dismiss.
Kidd portrays her non-compliance with the Federal Rules as a "slight technical oversight." Pl.'s Opp'n at 2. This characterization is inaccurate, because service of process is essential to provide the defendant sufficient notice of a plaintiff's claims. Henderson v. United States, 517 U.S. 654, 672 (1996) (the "core function" of service of process is to supply notice of a legal action which "affords the defendant a fair opportunity to answer the complaint and present defenses and objections"). Even when a defendant may have actual notice of a plaintiff's claims in the absence of proper service, "strict compliance" with the service provisions of the Federal Rules is mandatory, Baade v. Price, 175 F.R.D. 403, 405 (D.D.C. 1997) (citation omitted), not to burden plaintiffs but to ensure fairness and consistency in judicial proceedings. See McNeil v. United States, 508 U.S. 106, 113 (1993) (citing Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)) ("strict adherence" to procedural requirements "is the best guarantee of evenhanded administration of the law.").
Although Kidd has failed to effect proper service upon Treasury, the court will not grant Treasury's motion to dismiss. The court must provide a pro se plaintiff with "more latitude than litigants represented by counsel to correct defects in service of process and pleadings." Moore v. Agency for Int'l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993). Pro se litigants like Kidd are not exempt from the requirements of the Federal Rules. McNeil, 508 U.S. at 113. Nonetheless, particularly where the government is already aware of plaintiff's claim as it is here, the court will apply a more lenient construction of the Rules to give plaintiff additional time to comply with the service of process requirements. Nix v. Hoke, 62 F. Supp. 2d 110, 117 (D.D.C. 1999) (citing Huskey v. Quinlan, 785 F. Supp. 4, 6 (D.D.C. 1992).
III. CONCLUSION
For the foregoing reasons, the court concludes that Treasury's motion to dismiss must be denied.
ORDER
Accordingly, it is this.
ORDERED, that defendant's motion to dismiss is DENIED; and it is further
ORDERED, that within 30 days of the date of this order plaintiff shall complete service of process upon defendant and provide the court with proof thereof.