Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1988)

MEMORANDUM^* 

The Andersons brought this action under the Federal Tort Claims Act, 28 U.S.C., Sec. 1346(b) and Sec. 2671 et seq., seeking to recover for personal injuries and property damage incurred in an automobile accident involving appellants and a vehicle owned and operated by the U.S. Postal Service. The Andersons filed their complaint on October 27, 1987, and served the Office of the United States Attorney on October 30, 1987. On March 8, 1988, 133 days after filing the complaint, appellants' counsel sent to the Attorney General of the United States, by certified mail, copies of the summons and complaint. The Attorney General received these documents on March 14, 1988.

On March 18, 1988, the government moved to dismiss this action for lack of jurisdiction under Fed. R. Civ. P. 4(j). The district court granted the motion, finding that the Attorney General had not been timely served. The Andersons now appeal.

ANALYSIS

We review the district court's dismissal of appellants' complaint under Fed. R. Civ. P. Sec. 4(j) for abuse of discretion. Wei v. State of Hawaii, 763 F.2d 370, 371 (9th Cir. 1985).

Service upon the United States is made:

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 ... and by sending a copy of the summons and complaint by registered or certified mail to the Attorney General of the United States....

Fed. R. Civ. P. 4(d) (4).

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

Fed. R. Civ. P. 4(j).

The Andersons filed their complaint on October 27, 1987. Thus, under Rule 4(j), they had until February 24, 1988 to serve the Attorney General. The Andersons missed this deadline.

Failure to comply with Rule 4(d) (4)'s personal service requirement, however, does not always require dismissal of the complaint. The provisions of Rule 4 should be given a liberal and flexible construction, so long as the defendant receives sufficient notice of the complaint. See United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). Thus, we have held that a plaintiff's failure to comply with the technical requirements for personal service under Rule 4(d) (4) does not warrant dismissal where "(a) the party that had to be served personally received actual notice, (b) the defendant would suffer no prejudice from the defect in service, (c) there is a justifiable excuse for a failure to serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were dismissed." Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984).

Clearly, elements (a), (b) and (d) of the Borzeka test are satisfied here. The United States Attorney was well aware of the claims against the government in this case and had begun litigating the early stages of the case. Therefore, the government was not prejudiced by the delay in serving the Attorney General. On the other hand, were this suit dismissed, the Andersons would be left without a remedy for their injuries incurred in the accident. The only question remaining, then, is whether the Andersons have a justifiable excuse (or "good cause" under Rule 4(j)) for their failure properly to serve the Attorney General.

The Andersons contend that their attorney was misled in four instances as to the requirements of proper service. They assert that each constituted good cause excusing their failure to serve properly. The Andersons argue that they were misled: 1) by a clerk in the office of the U.S. Attorney who advised them of a discrepancy between the number appearing on the summons and complaint and the number appearing on a list provided by the clerk of the district court; 2) by the district court's removal of an Order to Show Cause re Dismissal from its calendar; 3) because their attorney followed the same erroneous procedure for serving the United States in other instances without challenge; and 4) by counsel for the government during the "meet and confer" process mandated by the Local Rules.

The first three of these proposed justifications are without merit. First, the clerk of the U.S. Attorneys' Office has no duty to instruct appellants' counsel in the procedural mandates of federal practice. Further, there is no evidence in the record indicating that the clerk or the district court knew of the Andersons oversight, or suggesting how their actions misled the Andersons. Nor can the oversight be excused by the fact that appellants' counsel previously failed to serve the Attorney General in Federal Tort Claims Act cases without challenge. Ignorance of the governing rules does not constitute good cause. See Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987); see also Wei, 763 F.2d at 372.

There may be some merit, however, to the Andersons claim that they were improperly misled by the government. On February 10, 1988, counsel for the parties met pursuant to Local Rule 6 of the Central District of California. In compliance with Local Rules 6.2 and 6.4.2, the parties then filed a "Combined Joint Statement For Early Meeting of Counsel and For Status Conference--Report to Court." Among other things, Rule 6.4.2 requires the parties to include a schedule of law and motion matters contemplated at the time of the meeting. According to the document, the government indicated only that it might file a motion concerning payment of an expert witness. Although it must have contemplated filing a motion to dismiss, the government failed to reveal its intentions. This conduct undermines the purposes of the early meeting of counsel and was sufficiently misleading at least to raise the issue of good cause. Consequently, we remand to the district court for consideration of these facts to determine whether good cause existed for the Andersons failure to serve the Attorney General within the period prescribed by statute.

The Andersons also argue that the district court erred in failing to rule on their motion to strike the government's reply memorandum. The Andersons support their motion to strike by claiming that the government raised new issues in its reply memorandum that were not discussed in either the opening or response briefs. We reject this contention.

As an initial matter, it is apparent from its memorandum of opinion that the district court denied appellants' motion to strike and considered arguments made in the government's reply. We turn, then, to the question of whether the substance of the government's reply brief was improper.

We find no impropriety. Local Rule 7.7 of the Central District of California permits the moving party to file "reply memoranda, declarations, or other evidence" seven days prior to the hearing. The government raised no new issues in its reply. The reply memorandum merely reacted to the appellants' response brief which offered purported justifications for having failed to serve the Attorney General as required.

Each party will bear its own costs for this appeal. AFFIRMED IN PART, VACATED IN PART AND REMANDED.