Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1986)

MEMORANDUM^** 

Woodrow McGhie and Kathleen McGhie appeal the dismissal under Federal Rule of Civil Procedure 4(j) of their Federal Tort Claims Act (FTCA) action against the United States for failure to serve the United States Attorney General within 120 days of filing the action. The McGhies contend they acted with due diligence by properly serving the United States Attorney in their district, their failure to serve the Attorney General did not prejudice the United States, and therefore that failure should not have resulted in dismissal. In the alternative, they contend that the filing of their first action tolled the statute of limitations and that, therefore, a second action, now pending in district court and not a part of this appeal, which they filed after the district court's dismissal of the first action, is timely.

Because the McGhies have not shown good cause for failure to serve the Attorney General within 120 days of filing the action, the judgment is affirmed.

FACTS

Woodrow McGhie and Kathleen McGhie filed an administrative claim against the United States after their infant son died, shortly after his birth at the Naval Hospital at the Camp Pendleton Marine Corps base. Their claim was denied on August 15, 1985. On November 14, 1985, the McGhies filed this action under the FTCA.

On March 27, 1986, the district court filed a notice of dismissal for want of prosecution under Federal Rule of Civil Procedure 4(j). The McGhies then filed a "Declaration Re: Service of Summons and Complaint" with the proof of service attached. In response, the district court took the hearing for dismissal for want of prosecution off the calendar. On May 16, 1986, the United States filed a motion to dismiss the complaint for failure to serve the Attorney General. The district court granted the motion and dismissed the action without prejudice. The McGhies then filed a second action under the FTCA, and filed this appeal of the dismissal of the first action.

The United States moved to dismiss the second action on the ground that the statute of limitations had run while the first action was pending. The district court declined to rule on the motion and stayed the action pending the outcome of this appeal. The McGhies request a determination in this action as to whether the statute of limitations has run for purposes of their second action.

STANDARD OF REVIEW

This court reviews a district court's order dismissing an action under Federal Rule of Civil Procedure 4(j) for failure to serve for an abuse of discretion. Hart v. United States, 817 F.2d 78, 80 (9th Cir. 1987).

DISCUSSION

The McGhies contend that because they properly served the United States Attorney, they acted with due diligence and put the United States government on notice of their complaint. Therefore, no prejudice resulted from their failure to serve the Attorney General within 120 days of the filing of their action. This contention lacks merit.

Service upon the United States must be made by delivering a copy of the summons and complaint to the United States Attorney for the district in which the action is brought and by sending a copy of the summons and complaint by registered or certified mail to the United States Attorney General. Fed. R. Civ. P. 4(d) (4); Reynolds v. United States, 782 F.2d 837, 838 (9th Cir. 1986) (per curiam). If service is not made within 120 days of the filing of the complaint, the action must be dismissed unless the plaintiff shows good cause for failure to serve. Fed. R. Civ. P. 4(j); Reynolds, 782 F.2d at 838. The negligence or mistake of the process server is not good cause under Rule 4(j) for failure to serve. Hart, 817 F.2d at 81.

The McGhies' attorney contends that because he sent the summons and complaint to the San Diego County Marshal's office for service on the United States as he had done in other similar actions in the past, he acted diligently in attempting to serve the Attorney General and therefore did not intentionally ignore the Federal Rules of Civil Procedure. However, the McGhies' attorney only instructed the marshal to serve the complaint on the United States Attorney, not on the Attorney General as well.

The McGhies have not shown good cause for failure to serve within 120 days of filing their complaint. Partial accomplishment of service is not sufficient. See Hart, 817 F.2d 78; Whale v. United States, 792 F.2d 951 (9th Cir. 1986); Reynolds, 782 F.2d 837. The county marshal's failure to serve the Attorney General is chargeable to the McGhies. Their counsel should have checked the proof of service to determine whether all defendants had been served. See Hart, 817 F.2d at 81. The district court did not abuse its discretion in dismissing the action for failure to serve the Attorney General of the United States.

On appeal, the McGhies contend for the first time that the filing of their first action tolled the FTCA statute of limitations, 28 U.S.C. § 2401. This contention is not properly before this court. The district court dismissed the first action under Rule 4(j) for failure to comply with Rule 4(d) (4). Therefore, the issue on appeal is whether the district court abused its discretion in dismissing the action. That the McGhies' FTCA claim may now be time-barred does not waive the requirements of Rule 4(d) (4) and does not satisfy the good cause requirement. See Hart, 817 F.2d at 81; DeLoss v. Kenner General Contractors, Inc., 764 F.2d 707, 711 n. 5 (9th Cir. 1985). Whether or not the statute of limitations was tolled by the filing of this action is an issue properly before the district court where the second action is now pending.

CONCLUSION

The dismissal is affirmed.