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

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US Court of Appeals for the Ninth Circuit - 990 F.2d 1266 (9th Cir. 1993)

Submitted March 10, 1993. *Decided March 16, 1993


Before WALLACE, Chief Judge, and FARRIS and BRUNETTI, Circuit Judges.


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.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. The Untals' request for oral argument is denied

 **

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