Unpublished Disposition, 930 F.2d 27 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 27 (9th Cir. 1989)

Claudette DORAN, Plaintiff-Appellant,v.Cheryl Ann ROBERTS-MURRAY, et al., Defendants-Appellees.

No. 89-56217.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1991.Decided March 28, 1991.

Before JAMES R. BROWNING, D.W. Nelson, and Reinhardt, Circuit Judges.


MEMORANDUM* 

On April 4, 1987, plaintiff Claudette Doran was involved in an automobile accident with a United States Postal Service vehicle. Doran submitted an administrative claim to the Postal Service which was denied on October 19, 1988. She then filed a timely complaint pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq., in the United States District Court for the Central District of California on January 27, 1989.

Personal service was effected on the Office of the United States Attorney for the Central District of California on April 28, 1989. However, proper service pursuant to Fed. R. Civ. P. 4(d) (5) was made upon neither the Attorney General of the United States nor the United States Postal Service within the 120 day time limit required by Fed. R. Civ. P. 4(j), which expired on May 27, 1989.

The United States Attorney's Office filed a motion to dismiss the complaint on June 26, 1989, citing Rule 4(j) noncompliance. The district court filed an order granting the motion on August 31, 1989. The court reaffirmed its finding in a November 30, 1989 motion for rehearing. Doran appeals the dismissal, claiming that she had substantially complied with Rule 4(d) (5) and that good cause for the improper service existed. Doran's claim of good cause is based on allegations that the United States misrepresented the sufficiency of the service and "lay in wait" until after the Rule 4(j) time limit had expired in order to dispose of the complaint.

The district court found that Doran had not shown good cause for her failure to properly serve the United States. We affirm.

We review a district court's dismissal of a complaint pursuant to Rule 4(j) under the abuse of discretion standard. Wei v. United States, 763 F.2d 370, 371 (9th Cir. 1985).

The FTCA provides a limited waiver of sovereign immunity that allows claims against the Government when it or one of its agencies has committed a tort. Service upon the United States and one of its agencies must be made pursuant to the requirements specified in Fed. R. Civ. P. 4(d) (5). This rule states that proper service on a federal agency such as the Postal Service is accomplished "by serving the United States and by sending a copy of the summons and complaint by registered or certified mail to such officer or agency." Fed. R. Civ. P. 4(d) (5). Proper service on the United States is accomplished

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 or to an assistant United States attorney or clerical employee designated by the United States attorney ... and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia....

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

The consequence of improper service is explained in Fed. R. Civ. P. 4(j): "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 ... without prejudice...." (Emphasis added). The Attorney General was served on July 25, 1989, 178 days after the suit was filed.

This circuit, in order to avoid the harsh results of Rule 4(j) dismissals due to technical non-compliance with Rules 4(d) (4) and 4(d) (5), adopted a four step test in Borzeka v. Heckler, 739 F.2d 444 (9th Cir. 1984). This test allows for a finding of substantial compliance with the Rules if certain criteria are satisfied. These criteria are: (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 the failure to serve properly; and (d) the plaintiff would be severely prejudiced if his complaint were dismissed. Borzeka, 739 F.2d at 447.

In applying the Borzeka test, the district court in the instant case found that the plaintiff had not satisfied element (c), the "justifiable excuse" or "good cause" requirement1  and dismissed the complaint without prejudice. It is clear that parts (a), (b) and (d) of the Borzeka test have been satisfied. The party to be served personally, the U.S. Attorney, received personal service within the 120 day time limit. The Attorney General and the Postal Service also received copies of the summons and complaint in a timely manner.2  Since there was actual knowledge of the suit by all parties involved, the United States was not prejudiced by the technical non-compliance. Doran, on the other hand, would be severely prejudiced by dismissal because her action is now barred by the statute of limitations.3  To avoid dismissal of her action, however, Doran must also show that good cause for the service error existed. She did not do so.

Doran's counsel based his claim of good cause on (1) an alleged misrepresentation by an unidentified person at the U.S. Attorney's office that service had been properly made, and (2) a claim that the U.S. Attorney purposefully delayed filing its motion to dismiss until after expiration of the 120 day period. Both of these arguments are unconvincing.

The district court determined that Doran had not presented sufficient facts to show that a misrepresentation had been made. The alleged misrepresentation was purported to have been made during a phone call on June 7, 1989.4  The transcript of Doran's 10/30/89 reconsideration hearing showed that Doran's counsel did not know with whom he had spoken and could not articulate how the response he received had given him the "clear impression" that proper service had been made.

Furthermore, since the 120 day time limit for proper service expired on May 27, 1989, any alleged misrepresentation after that date would have had no effect. Thus, the misrepresentation, even if proved, would not have constituted good cause for the lack of proper service.

Appellant also claims that the U.S. Attorney "lay in wait" or "purposefully delayed" filing the motion to dismiss until after the 120 day limit had expired. Doran admits that the U.S. Attorney's office did not learn of the insufficiency of service on the Attorney General until June 6, 1989. This was clearly after the expiration of the 120 day limit. No evidence presented by Doran was sufficient to show a purposeful delay on the Government's behalf.

Absent proof of a misrepresentation or purposeful delay, Doran's failure to serve properly can only be attributed to inadvertence. We agree with the district court that this is the case. Inadvertent error or ignorance of the governing rules does not constitute good cause. Wei v. United States, 763 F.2d 370, 372 (9th Cir. 1985); Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987). Also, even where dismissal would eliminate plaintiff's cause of action, as it may in this case, if good cause cannot be shown dismissal is mandatory. Wei, 763 F.2d at 372.

Under the facts of this case, the district court did not abuse its discretion in dismissing the action. Doran did not show good cause for the improper service. Without such a showing, there is no relief from the requirements of Rule 4(j) under the Borzeka exception. The dismissal of the action by the district court is hereby

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

"Justifiable excuse" and "good cause" have been treated by this court as being interchangeable terms of art. See Whale v. United States, 792 F.2d 951, 953 (9th Cir. 1986). "Good cause" has also been found to be synonymous with "excusable neglect" as contained in Fed. R. Civ. P. 6(b). United States ex. rel. Kenner General Contractors, Inc., 764 F.2d 707, 711 (9th Cir. 1985)

 2

The U.S. Attorney sent copies of the summons and complaint to the Department of Justice and the local postal inspector on 5/3/89. The postal inspector then telefaxed the copies of the summons and complaint to the Postal Service Office in Washington, D.C. on 5/4/89

 3

Complaints against the Government filed under the FTCA must be filed within 6 months of the Government's refusal of the administrative claim. 28 U.S.C. § 2401(b). This period has expired and Doran cannot refile her action

 4

In the 10/30/89 motion for rehearing, Doran's counsel presented an affadavit stating that he had an office telephone record which placed the date of the telephone call on 6/7/89. In his brief before this court, counsel claimed that the call was made "in mid-May." As no documentation was given to substantiate this new claim, it must be assumed that the call was made on 6/7/89