Antonio Untal; Cecilia Untal, Plaintiffs-appellants, v. United States of America, Defendant-appellee, 990 F.2d 1266 (9th Cir. 1993)

MEMORANDUM^** 

Antonio and Cecilia Untal appeal the district court's dismissal pursuant to Fed. R. Civ. P. 4(j) of their Federal Tort Claims Act action because they did not personally serve the United States Attorney within 120 days of the filing of the action. We review for an abuse of discretion, Hart v. United States, 817 F.2d 78, 80 (9th Cir. 1987), and we affirm.

Service upon the United States is made by (1) delivering a copy of the summons and complaint to the United States Attorney for the district in which the action is brought, and (2) 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). An action shall be dismissed if service is not made within 120 days after the filing of the complaint, and good cause is not shown as to why service was not made. Fed. R. Civ. P. 4(j). In order to establish good cause, a plaintiff must demonstrate, among other requirements, a justifiable excuse for the defect in service. Whale v. United States, 792 F.2d 951, 953 (9th Cir. 1986).

Here, the Untals' counsel concedes that she did not personally serve the United States Attorney within 120 days of the filing of the complaint. She contends that her mistaken reliance on a proposed amendment to Fed. R. Civ. P. 4(d) (4), which would have permitted service upon the United States Attorney by registered or certified mail, excused her failure to comply with Rule 4(d) (4). This misreading of Rule 4(d) (4) does not constitute a justifiable excuse for the defect in service. See Whale, 792 F.2d at 953. Accordingly, the district court's judgment is

AFFIRMED.