Balbuena v. McHugh et al
Filing
7
Order STRIKING 4 Proof of Service, 3 Proof of Service, 5 Proof of Service filed by Leo J. Hickman, 6 Proof of Service filed by Department of the Army as set out. Miscellaneous deadline set for 3/1/2015 for plaintiff to arrange service as set out.. Signed by Judge Kristi K. DuBose on 12/2/2014. (copy to plaintiff) (cmj)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
BRENDA
E.
BALBUENA,
Plaintiff,
v.
JOHN
M.
McHUGH,
Secretary
Department
of
the
Army,
Agency,
Defendants.
)
)
)
)
)
)
)
)
)
)
CIVIL
ACTION
NO.
14-‐00188-‐KD-‐C
ORDER
On
April
25,
2014,
Brenda
E.
Balbuena
(Balbuena),
an
employee
of
the
U.S.
Army
Corps
of
Engineers,
Mobile
District,
filed
a
pro
se
complaint
alleging
that
she
was
discriminated
against
on
basis
of
“age
and
reprisal”
(doc.
1).
The
summons
were
issued
May
1,
2014
(doc.
2).
Balbuena
sues
John
M.
McHugh
in
his
official
capacity
as
Secretary
of
the
Department
of
the
Army,
the
Department
of
the
Army
as
an
“Agency”,
and
possibly
Leo
J.
Hickman
in
his
capacity
as
Chief
of
Contracting
or
in
his
individual
capacity.
1
On
July
15,
2014,
Balbuena
filed
four
Proofs
of
Service,
which
indicate
that
she
attempted
to
serve
defendants
McHugh,
Hickman
and
the
United
States
Attorney
General
by
certified
mail,
return
receipt
requested.2
There
is
no
Proof
of
Service
as
to
the
United
States
1
Although
Hickman
is
not
identified
in
the
caption
of
Balbuena’s
complaint,
she
identifies
2
Rule
4(i)(2)
applies
to
service
of
an
agency
of
the
United
States
such
as
the
Department
of
the
Army
and
an
officer
or
employee
such
as
McHugh
and
Hickman
sued
in
their
official
capacity.
The
Rule
states
as
follows:
“To
serve
a
United
States
agency
or
corporation,
or
a
United
States
officer
or
employee
sued
only
in
an
official
capacity,
a
party
must
serve
the
United
States
and
also
send
a
copy
of
the
summons
and
of
the
complaint
by
registered
or
certified
mail
to
the
agency,
corporation,
officer,
or
employee.”
Fed.
R.
Civ.
P.
4(i)(2).
To
the
extent
that
Balbuena
sues
Hickman
in
his
individual
capacity,
Rule
4(i)(3)
provides
that
“[t]o
serve
a
United
States
officer
or
employee
sued
in
an
individual
capacity
.
.
.
(whether
or
not
Attorney
for
this
district
or
as
to
the
Department
of
the
Army,
as
an
agency
of
the
United
States.
Balbuena
signed
each
Proof
of
Service
as
the
“Server”
and
listed
her
address.
However,
Balbuena
is
a
party
and
Rule
4(c)(2)
provides
that
“[a]ny
person
who
is
at
least
18
years
old
and
not
a
party
may
serve
a
summons
and
complaint.”
Fed.
R.
Civ.
P.
4(c)(2)
(emphasis
added).
A
similar
circumstance
was
addressed
by
the
Court
of
Appeals
for
the
Eleventh
Circuit
in
Albra
v.
Advan,
Inc.,
490
F.
3d
826
(11th
Cir.
2007).
Albra,
filed
a
pro
se
complaint
against
his
employer
Advan,
Inc.
He
alleged
violations
of
the
Americans
with
Disabilities
Act
and
the
Florida
Omnibus
Aids
Act.
The
return
of
service
to
Advan’s
registered
agent
showed
Albra
as
the
process
server.
The
circuit
court
explained
as
follows:
Albra
argues
that
service
to
Advan
was
proper
because
he
mailed
a
copy
of
the
summons
to
Advan's
registered
agent,
Wayne
Abbott,
who
was
also
named
as
a
defendant
in
the
action.
.
.
.
Federal
Rule
of
Civil
Procedure
4(c)
provides
that
service
of
process
shall
be
effected
by
serving
a
summons
“
together
with
a
copy
of
the
complaint.
...
within
the
time
allowed
under
[Rule
4(m)]
....
by
any
person
who
is
not
a
party
and
who
is
at
least
18
years
of
age.”
Fed.R.Civ.P.
4(c)
(emphasis
added).
A
defendant's
actual
notice
is
not
sufficient
to
cure
defectively
executed
service.
See
Schnabel
v.
Wells,
922
F.2d
726,
728
(11th
Cir.1991)
(interpreting
former
Rule
4(j)),
superseded
in
part
by
rule
as
stated
in
Horenkamp
v.
Van
Winkle
And
Co.,
Inc.,
402
F.3d
1129,
1132
n.
2
(11th
Cir.
the
officer
or
employee
is
also
sued
in
an
official
capacity),
a
party
must
serve
the
United
States
and
also
serve
the
officer
or
employee
under
Rule
4(e),
(f),
or
(g).”
Fed.
R.
Civ.
P.
4(i)(3).
Thus,
in
either
instance
the
United
States
must
be
served.
To
do
so,
Balbuena
must
“(A)(i)
deliver
a
copy
of
the
summons
and
of
the
complaint
to
the
United
States
attorney
for
the
district
where
the
action
is
brought-‐-‐or
to
an
assistant
United
States
attorney
or
clerical
employee
whom
the
United
States
attorney
designates
in
a
writing
filed
with
the
court
clerk—or
(ii)
send
a
copy
of
each
by
registered
or
certified
mail
to
the
civil-‐process
clerk
at
the
United
States
attorney's
office;
[and]
(B)
send
a
copy
of
each
by
registered
or
certified
mail
to
the
Attorney
General
of
the
United
States
at
Washington,
D.C.
.
.
.
“
Fed.
R.
Civ.
P.
4(i)(1).
2
2005).
And
although
we
are
to
give
liberal
construction
to
the
pleadings
of
pro
se
litigants,
“we
nevertheless
have
required
them
to
conform
to
procedural
rules.”
Loren
v.
Sasser,
309
F.3d
1296,
1304
(11th
Cir.2002).
Here,
the
record
demonstrates
that
Albra,
the
plaintiff
in
the
suit,
served
Advan
by
mailing
a
copy
of
the
summons
without
attaching
a
copy
of
the
complaint.
Accordingly,
Albra
failed
to
properly
effect
service
upon
Advan
in
accordance
with
Rule
4(c),
and
the
district
court's
grant
of
Advan's
motion
to
dismiss
was
proper.
Id.
at
828-‐829
(italics
in
original).
For
purpose
of
this
decision,
the
Court
will
assume
that
Balbuena
attached
a
copy
of
the
complaint
to
the
summons
that
she
attempted
to
serve.
3
However,
because
Balbuena
is
the
plaintiff,
and
thus
a
party
in
the
suit,
she
failed
to
properly
effect
service
under
Rule
4(c).
Accordingly,
the
Proofs
of
Service
are
STRICKEN.
See
also
Green
v.
Florida,
2013
WL
5567324
(M.D.
Fla.
Oct.
9,
2013)
(citing
Fed.
R.
Civ.
P.
4(c)(2)
and
4(c)(1)
and
finding
that
the
certificates
of
service
signed
by
plaintiff
did
not
constitute
proper
service
of
process
upon
the
defendants).
““Read
together,
then,
Rules
4(i)(1)
and
4(c)(2)
direct
that
service
upon
the
United
States
be
made
(1)
by
a
person
...
age
18
or
older
(2)
who
is
not
a
party
(3)
either
through
in-‐person
delivery
or
sending
by
certified
mail
a
copy
of
the
summons
and
complaint
to
both
the
Attorney
General
and
the
United
States
Attorney
for
the
judicial
district
where
the
action
is
brought.”
Lindsey
v.
United
States,
448
F.Supp.2d
37,
42
(D.C.Cir.2006)
abrogated
on
separate
grounds,
Ramer
v.
United
States,
620
F.Supp.2d
90,
99
(D.D.C.2009)
(denying
motion
to
dismiss
for
insufficiency
of
service
of
process).
Balbuena
is
not
excused
from
compliance
with
the
Federal
Rules
of
Civil
Procedure
including
the
rules
that
apply
to
effecting
service
upon
the
defendants.
“[B]oth
the
Supreme
3
Rule
4(c)(1)
states
that
“[a]
A
summons
must
be
served
with
a
copy
of
the
complaint.
The
plaintiff
is
responsible
for
having
the
summons
and
complaint
served
within
the
time
allowed
by
Rule
4(m)
and
must
furnish
the
necessary
copies
to
the
person
who
makes
service.”.
3
Court
and
[the
Eleventh
Circuit]
have
concluded
that
a
defendant’s
pro
se
status
in
civil
litigation
generally
will
not
excuse
mistakes
he
makes
regarding
procedural
rules.”
Nelson
v.
Barden,
145
Fed.
Appx.
303,
311
n.10
(11th
Cir.
2005);
accord
Local
Rule
83.9(b)(“All
litigants
proceeding
pro
se
shall
be
bound
by
and
comply
with
all
local
rules
of
this
Court,
and
the
Federal
Rules
of
Civil
...
Procedure,
unless
otherwise
excused
from
operation
of
the
rules
by
court
order.”)
However,
since
Balbuena
is
proceeding
pro
se
and
has
now
been
apprised
again4
of
her
obligation
to
follow
the
Federal
Rules
of
Civil
Procedure,
the
Court
extends
her
deadline
for
service
beyond
the
120-‐day
period
set
forth
in
Rule
4(m)5
of
the
Federal
Rules
of
Civil
Procedure.
Horenkamp
v.
Van
Winkle
&
Company,
Inc.,
402
F.3d
1129,
1132
(11th
Cir.
2005)
(acknowledging
that
the
district
court
has
discretion
to
extend
the
time
for
service).
Therefore,
Balbuena
shall
arrange
service
of
the
Summons
and
Complaint
and
file
Proofs
of
Service
in
a
manner
that
complies
with
the
Federal
Rules
of
Civil
Procedure,
on
or
before
March
1,
2015.
4
The
docket
indicates
that
Balbuena
was
given
a
copy
of
the
Pro
Se
Litigant
Guide.
As
to
service
of
the
summons
and
complaint,
the
Guide
states
as
follows:
(2)
Service
of
Summons
and
Complaint
-‐
Fed.R.Civ.P.
4(c)(2)
states,
“service
may
be
effected
by
any
person
who
is
not
a
party
and
who
is
at
least
18
years
of
age.”
Using
this
method,
you
direct
someone
else
to
deliver
or
serve
a
copy
of
the
complaint
and
summons
on
the
defendant(s).
The
most
common
methods
for
effecting
service
are
certified
mail
with
a
return
receipt,
or
personal
service.
Private
process
servers
will
also
do
this
for
a
fee.
Pro
Se
Litigant
Guide,
p.
5.
5
Rule
4(m)
provides
a
time
limit
for
service
of
120
days.
However
the
Court,
“on
motio
or
on
its
own
after
notice
to
the
plaintiff
-‐-‐
must
dismiss
the
action
without
prejudice
.
.
.
or
order
that
service
be
made
within
a
specified
time.”
Fed.
R.
Civ.
P.
4(m).
4
Additionally,
Balbuena
is
warned
that
failure
to
do
so
may
result
in
dismissal
of
this
action
without
prejudice
for
failure
to
comply
with
this
Court’s
order
and
failure
to
comply
with
the
Federal
Rules
of
Civil
Procedure.
See
Link
v.
Wabash
R.R.,
370
U.S.
626,
630
31,
82
S.Ct.
1386
(1962)
(interpreting
Rule
41(b)
as
not
restricting
the
court’s
inherent
authority
to
dismiss
sua
sponte
an
action
for
lack
of
prosecution);
Mingo
v.
Sugar
Cane
Growers
Co-‐op,
864
F.2d
101,
102
(11th
Cir.
1989)
(“The
district
court
possesses
the
inherent
power
to
police
its
docket[]
.
.
.
[and]
.
.
.
[i]ncident
to
this
power,
the
judge
may
impose
formal
sanctions
upon
dilatory
litigants.
The
sanctions
imposed
can
range
from
a
simple
reprimand
to
an
order
dismissing
the
action
with
or
without
prejudice.”)
Done
and
ordered
the
2nd
day
of
December
2014.
s/
Kristi
K.
DuBose
KRISTI
K.
DuBOSE
UNITED
STATES
DISTRICT
JUDGE
5
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