Opinion
Case No. 03-2329-JWL
January 8, 2004
MEMORANDUM ORDER
On October 27, 2003, Magistrate Judge Waxse issued an order directing plaintiff to show good cause to this court why service of the summons and complaint was not made upon the defendant and to show good cause to this court why her complaint should not be dismissed for failure to accomplish service within 120 days from the filing of her complaint. On November 14, 2003, plaintiff filed a timely response to the order to show cause in which she makes the conflicting assertions that "[s]ervice in this matter has been effected upon Defendant" but that she has "not received confirmation that service has been effected on Thomas E. White." Despite admitting in her response to the show cause order that she has never received from the United States Postal Service the certified mail receipt indicating proof of service upon Mr. White, she urges in that same response that "service has been made as of September 16, 2003 and . . . that such service was both timely and properly made." At the same time, plaintiff filed returns of service, including certified mail receipts, with respect to the Attorney General of the United States and the United States Attorney for the District of Kansas showing that the Attorney General was served on September 16, 2003 and that the United States Attorney was served on September 12, 2003.
Defendant has filed an objection to the docket entry concerning the returns of service filed by plaintiff regarding the Attorney General and the United States Attorney. Specifically, the docket entry concerning the returns of service states as follows:
"Summons Returned Executed — Certified mail by Susan E Peterson upon Department of Army served on 9/12/2003, answer due 11/12/2003. (Graham, Kevin) (Entered: 11/14/2003)."
According to defendant, the entry is misleading (as it clearly suggests that defendant in this case has been served or, more specifically, that the Secretary of the Army has been served and that such service is complete) and plaintiff should be required to amend the entry. The court agrees with defendant that the docket entry is misleading. However, plaintiff, contrary to defendant's belief, did not enter the information on the docket entry. Rather, plaintiff simply selected the appropriate "event" via the court's electronic case filing system ( i.e., Return of Service of Summons Executed as to USA") and the system then forced plaintiff to select the party upon whom service was executed-either the Department of the Army or plaintiff Susan Peterson. Stated another way, the system would not permit plaintiff to differentiate among the three individuals or entities that must be served in order to fully accomplish service on the Department of the Army. It may be that the electronic case filing system contemplates that the plaintiff will not enter the information until all entities identified in Rule 4(i) have been served and this may further explain why plaintiff in this case did not file the returns of service with respect to the Attorney General and the United States Attorney when she received them in September-presumably she was waiting until she had all three returns to file them simultaneously. In any event, the objection is overruled but the substance of this order controls over any inference someone might draw from the language of the docket entry.
Upon receiving plaintiffs response to the court's show cause order, defendant immediately filed a motion to dismiss plaintiffs complaint on the grounds that plaintiff failed to show good cause in her response to the court's October 27, 2003 show cause order. After plaintiff failed to file a response to the motion to dismiss within the time period provided in D. Kan. Rule 6.1(e)(2), the court issued an order directing plaintiff to show good cause why she failed to respond in a timely fashion. Plaintiff filed a timely response to that show cause order and the court concludes that she has demonstrated good cause for failing to file a response to defendant's motion to dismiss. Moreover, plaintiff has now filed a response to defendant's motion to dismiss, defendant has submitted a reply and, thus, defendant's motion to dismiss is ripe for the court's review.
According to plaintiff, she simply construed defendant's motion to dismiss as a response to plaintiff's response to the show cause order as opposed to an entirely new motion requiring a separate response from plaintiff. The court concludes that this construction was a reasonable one constituting good cause for failing to file a timely response to the motion.
The court agrees with defendant that plaintiff has failed to show good cause in her response to the court's October 27, 2003 order. Her response fails to establish that service was effected on all three individuals identified in Fed.R.Civ.P. 4(i) (and, in fact, establishes that such service was not accomplished as to the Secretary) and yet she affirmatively states that such service was accomplished. Worse yet, while plaintiff's response indicates that she at least attempted to obtain service upon the Secretary, she fails to demonstrate to the court what steps, if any, she took to follow up on the service of the Secretary between September 10, 2003-when she apparently sent the summons and complaint to the Secretary's attorney via certified mail-and November 14, 2003, when she filed her response to the show cause order and still had not received the certified mail receipt concerning the Secretary.
Despite the fact that plaintiff has failed to show good cause, the court nonetheless retains the discretion to direct that service be effected within a specified time. See Edwards v. Potter, 2003 WL 245640, at *1 (10th Cir. Feb. 4, 2003) (if plaintiff fails to show good cause under Rule 4(m), the court retains the discretion to either the dismiss the case without prejudice or direct that service be effected within a specified time). The court concludes that it is appropriate in this case to provide plaintiff within an opportunity to effect proper service on the Secretary of the Army. In so concluding, the court is particularly mindful of Federal Rule of Civil Procedure 4(i)(3), which provides that where there is a failure to serve a required party in an action governed by Rule 4(i)(2)(A) (as this case is), and the plaintiff has at least served either the United States Attorney or the Attorney General of the United States, "[t]he court shall allow a reasonable time to serve process under Rule 4(i) for the purpose of curing the failure to serve." It is undisputed that plaintiff has served both the Attorney General of the United States and the United States Attorney for this district. Rule 4(i)(3), then, counsels that plaintiff be provided an opportunity to cure the failure to serve the Secretary.
It is unclear from the record exactly how plaintiff attempted to serve the Secretary. Plaintiff indicates that she sent a copy of the complaint and summons via certified mail to the Secretary at the U.S. Army installation at Fort Leavenworth, Kansas. The mail was neither accepted nor refused and was apparently left at Fort Leavenworth without first obtaining a signature on the mail receipt. Defendant asserts that it did not sign the receipt because he had determined that service of the documents at Fort Leavenworth was not appropriate. Indeed, plaintiff offers no authority for her contention that service at Fort Leavenworth would be effective. In that regard, the pertinent regulations indicate that the Chief, Litigation Division, shall accept service of process for the Secretary of the Army in his official capacity and those regulations further provide a mailing address for the Litigation Division. See 32 C.F.R. § 516.14 and Pt. 516, App. B.
In sum, while the court declines to dismiss plaintiff's complaint at this time and hereby denies defendant's motion to dismiss, plaintiffs complaint shall be dismissed if plaintiff does not effect proper service on the Secretary of the Army and file the requisite proof of service on or before Friday, February 6, 2004. If plaintiff does not file proof of service by that date, defendant may renew its motion to dismiss.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion to dismiss plaintiff's complaint (doc. #4) is denied; plaintiff is directed to obtain service on the Secretary of the Army and to file the requisite proof of service as to the Secretary no later than February 6, 2004.
IT IS SO ORDERED.