Vargas-Rodriguez v. United States of America Department of Homeland Security et al, No. 3:2008cv01970 - Document 10 (D.P.R. 2009)
Court Description: OPINION AND ORDER granting 8 MOTION to Quash Service filed by United States Customs and Border Protection, and denying 5 MOTION to Dismiss/Lack of Jurisdiction. Service of Process Deadline due by 3/16/2009.Signed by Judge Salvador E Casellas on 2/27/2009.(THD)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 HECTOR A. VARGAS-RODRIGUEZ 5 Plaintiff 6 7 8 9 CIVIL NO. 08-1970 (SEC) v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al Defendants 10 11 Opinion and Order 12 Before this Court is Co-defendants United States of America, U.S. Customs and Border 13 Protection, and Department of Homeland Security s (collectively Federal Defendants ) Motion 14 to Dismiss (Docket # 5), Federal Defendants Motion to Quash Service (Docket # 8), and 15 Plaintiff s Response in Opposition (Docket # 9) thereto. After reviewing the filings and the 16 applicable law, the Federal Defendants motion to dismiss will be DENIED, and their Motion 17 to Quash Service shall be GRANTED. 18 Federal Defendants pray that this suit be dismissed for failure to effect proper service on 19 the Attorney General of the United States, in accordance with F ED. R. C IV. P. 4(i). See Docket 20 # 5 at 2. After the motion to dismiss was filed on 11/18/2008, Plaintiff was still within the 120 21 days permitted by F ED. R. C IV. P. 4(m). As such, this Court ordered plaintiff to show proof of 22 service on the Attorney General by December 5, 2008. Plaintiff partially complied with this 23 order, filing proof of service on the Department of Justice on December 5, 2009. See Docket 24 # 6 & 6-2. The service was mailed to the Attorney General, and a confirmation receipt from the 25 Attorney General was returned to Plaintiff. However, the service is on its face deficient, because 26 1 08-1970 (SEC) 2 it serves the Department of Justice, and not the Attorney General, as is plainly obvious from a 3 cursory review of the summons. See Docket ## 6-2 & 8-1. 4 Due to this deficiency, Federal Defendants moved to quash the service. Moreover, they 5 assert that the case should be dismissed on grounds of ineffective service for failure to comply 6 with F ED. R. C IV. P. 4(i). Fed. R. Civ. P. 4(i)(2)(B) requires anyone suing an agency or 7 corporation of the United States to serve both the United States and the agency in question. The 8 rule requires that [s]ervice upon the first should be done pursuant to F ED. R. C IV. P. 4(I), which 9 in its relevant part requires that service be effected by: (1) delivering copy of the summons and 10 of the complaint to the United States Attorney for the district in which the action is brought . 11 . ., and (2) by sending a copy of the summons and of the complaint by registered or certified 12 mail to the Attorney General of the United States. Solis-Alarcon v. United States, 432 F. Supp. 13 2d 236, 245 (D.P.R. 2006). 14 A suit may undoubtedly be dismissed for failure to serve process on the Attorney 15 General. Id.; see also Smith v. Rossotte, 250 F. Supp. 23 1266,1269 (D.Ore. 2007). Therefore, 16 if service is not effected within 120 days, this Court shall dismiss the cause of action, unless 17 good cause is shown. See, e.g., Ruiz Varela v. Sanchez Velez, 814 F.2d 821, 822 (1st Cir. P.R. 18 1987); Tracy v. United States, 243 F.R.D. 662, 666 (D. Nev. 2007). However, even belated 19 service on the Attorney General can in certain circumstances cure deficiencies, even the absence 20 of prior notification. Solis-Alarcon, 432 F. Supp. 2d at 245. Furthermore, failure to serve 21 according to F ED. R. C IV. P. 4(I) should not lead to dismissal when: 22 (1) the necessary governmental parties have actual notice of the suit; (2) the 23 government has suffered no prejudice from the defect in service; (3) there is a 24 justifiable excuse for the failure to make proper service; and (4) the plaintiff 25 would be severely prejudiced by a dismissal of the complaint. 26 1 08-1970 (SEC) 2 Gargano v. IRS, 207 F.R.D. 22, 23 (D. Mass. 2002)(referencing Wright & Miller, Federal 3 Practice and Procedure: Civil 3d ยง 1106, 14 n.12.). 4 Here the defective service of process is against the Attorney General, but there is no 5 dispute as per Plaintiff having served the United States Attorney. F ED. R. C IV. P. 4(i)(4) directs 6 this Court to grant a party reasonable time to cure failures to serve under F ED. R. C IV. P. 4(i)(2) 7 if either the Attorney General or United States Attorney has been properly served.1 Furthermore, 8 because the rules for multiple service on the United States of America, and its agencies, are 9 complicated, the Advisory Committee intended for this rule to be interpreted jointly with F ED. 10 R. C IV. P. 15(c) to preclude the loss of substantive rights against the United States or its 11 agencies, corporations, or officers resulting from a plaintiff's failure to correctly identify and 12 serve all the persons who should be named or served. 13 Fed. R. Civ. P. 15(c)(C) states that an amendment to a pleading relates back when: 14 (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity. 15 16 17 18 19 Likewise, an amendment relates back against the United States if timely process is served upon 20 United States attorney or the United States attorney's designee, to the Attorney General of the 21 United States, or to the officer or agency. F ED. R. C IV. P. 15(c)(2). In the present action, 22 23 24 25 26 1 Moreover, when reviewing the year 2000 amendments to this rule the Notes of Advisory Committee assert that: An additional change ensures that if the United States or United States attorney is served in an action governed by paragraph 2(A), additional time is to be allowed even though no officer, employee, agency, or corporation of the United States was served. 1 08-1970 (SEC) 2 Plaintiff s failure to properly serve the Attorney General is a technical defect, and does not 3 warrant dismissal. Zankel v. United States, 921 F.2d 432, 436 (2d Cir. 1990). Furthermore, he 4 served the United States Attorney and the agency within the period required by law. Therefore, 5 once Plaintiff s defective summons is corrected and properly served upon the Attorney General, 6 it will be held as timely. 7 As such, Defendants Motion to Quash Service (Docket # 8) is GRANTED, and 8 Defendant s Motion to Dismiss is temporarily DENIED. Plaintiff is ORDERED to serve the 9 Attorney General and submit evidence of compliance thereof within 15 days. Failure to comply 10 with this ORDER shall result in dismissal. The Clerk of the Court shall issue a summons for 11 service upon the Attorney General in accordance with the terms of this Order. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IT IS SO ORDERED. San Juan, Puerto Rico, this 27 th day of February, 2009. S/Salvador E. Casellas Salvador E. Casellas U.S. District Judge
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