Lion's Gate Center, LLC v. United States Department of Agriculture
Filing
21
ORDER Denying 11 Motion to Dismiss and Granting 20 Petitioner's Extension of Time. Defendant must Answer or otherwise file a responsive pleading by April 3, 2013, by Judge John L. Kane on 3/13/13.(sgrim)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00693-JLK
LION’S GATE CENTER, LLC,
Petitioner,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE,
Respondent.
ORDER DENYING MOTION TO DISMISS AND GRANTING PETITONER’S EXTENSION
OF TIME
Kane, J.
Before me is Defendant’s Motion to Dismiss, Doc. 11. The issue is whether the case
should be dismissed for failure to prosecute/timely perfect service of process, and the matter is
ripe for resolution without recourse to a Reply. Simply, Petitioner's counsel misread the service
requirements of Fed. R. Civ. P. 4 and incorrectly believed his timely service upon the United
States Attorney for the District of Colorado was effective service upon Respondent theUnited
States Department of Agriculture (USDA”) as well; in fact, Fed. R. Civ. P. 4 requires a party
petitioning a United States agency to serve three parties: (1) the U.S. Attorney for the district
where the action is brought; (2) the U.S. Attorney General in Washington, D.C.; and (3) the
agency sued.
When Petitioner’s counsel learned of his error, he immediately served the U.S. Attorney
General in Washington, D.C and the USDA itself in Washington, D.C., but this service was
outside the 120 day deadline imposed by Fed. R. Civ. P. 4. Where a party has failed to effect
timely service, that party may avoid dismissal if it shows “good cause for the failure” to
complete service. Fed. R. Civ. P. 4(m). Additionally, where a petitioner fails to show good
cause, I must still consider whether to award a permissive extension of time. Espinoza v. United
States, 52 F.3d 838, 839 (10th Cir.1995).Whether the negligence or good faith mistake of
counsel here constitutes “good cause,” I declined to decide, because a permissive extension is
warranted. Petitioner’s counsel speedily corrected his mistake and Respondent has not
demonstrated any prejudice that it would suffer from an extension of time being granted. In the
interest of saving this Court and the parties from the duplicative filing that would likely follow a
dismissal, I DENY Respondent’s Motion to Dismiss, Doc. 11, and GRANT Petitioner’s request
for extension of time. Defendant must Answer or otherwise file a responsive pleading by April
3, 2013.
DATED: March 13, 2013
BY THE COURT:
/s/John L. Kane
U.S. Senior District Judge
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