Wayson v. Rundell
Order on Motion to Dismiss
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
MARK N. WAYSON,
ORDER AND OPINION
Motion at Docket 25]
I. MOTION PRESENTED
At docket 25, defendant Linda Rundell moves to dismiss plaintiff’s complaint for
insufficient service pursuant to Federal Rule of Civil Procedure 12(b)(5). At docket 27,
plaintiff Mark Wayson opposes the motion. Plaintiff’s reply is filed at docket 28. Oral
argument was not requested, and it would not assist the court.
This action arises out of Linda Rundell’s alleged finding, as acting state director
of the Bureau of Land Management (“BLM”), that Mark Wayson “forcibly committed a
crime against BLM employee Carol Hammond.”1 On December 20, 2005, Mark
Wayson, who is pro se, filed a complaint against Linda Rundell in the Superior Court for
the State of Alaska, Fourth Judicial District at Fairbanks, alleging that Rundell damaged
his reputation and violated his constitutional rights. In December 2005, Wayson mailed
Complaint at 2, doc. 1.
a copy of the complaint and summons by certified mail with restricted delivery to Linda
Rundell, 1474 Rodeo Road, Santa Fe, New Mexico, 87505, which is the street address
for the New Mexico State BLM Office. Wayson received a signed receipt for delivery of
the certified mail stamped December 27, 2005.2 Although Wayson paid the fee for
restricted delivery to Linda Rundell, C.J. Fimple, a NebArk Courier employee, signed for
the certified letter.3
On January 13, 2006, Wayson filed an amended complaint against Rundell in
state court alleging the same violations of his constitutional rights.4 Defendant Rundell,
through her counsel the United States Attorney, removed this matter to federal court
pursuant to 28 U.S.C. § 2679(d)(2), following the United States Attorney’s certification
that Rundell “was acting within the scope of her employment with the [BLM] at the time
of the allegations in Plaintiff’s Complaint.”5 The Notice of Removal states that on
December 27, 2005, Rundell “was working at the BLM office and the office was served
with a copy of the Summons and Complaint,” but that the United States Attorney was
not served copies of the pleadings.6 Copies of the complaint and summons were
attached to the Notice of Removal.
On February 6, 2006, defendant Rundell moved to substitute the United States
as defendant for common law tort allegations and to change the case caption to reflect
that plaintiff is suing Rundell in both her individual and official capacities.7 Wayson
opposed the motion on the grounds that he is not asserting any common law claims and
The briefings and attachments do not explain the relationship, if any, between NebArk
and the New Mexico BLM Office.
Doc. 4, exh. 1.
Notice of Removal at 2, doc. 1.
is only asserting a Bivens claim against defendant Rundell in her individual capacity.8
Consequently, by order dated May 15, 2006, the court denied as moot defendant’s
motion to substitute and vacated the United States Attorney’s certification that
defendant Rundell acted within the scope of her employment.9 By minute order dated
May 16, 2006, the court advised the parties that the only claims in this case are
plaintiff’s claims against defendant Rundell in her individual capacity.
By minute order dated April 27, 2006, the court directed plaintiff to file proof of
service on defendant. On May 8, 2006, plaintiff informed the court that he had mailed a
copy of the complaint and summons by certified mail and restricted delivery to Linda
Rundell at 1474 Rodeo Road, Santa Fe, New Mexico, 87505, and that plaintiff had
received a signed acknowledgment of the restricted delivery stamped December 27,
By minute order dated July 19, 2006, the court noted that an answer had not
been filed by the defendant served in this case and directed plaintiff to “require an
answer immediately or apply for default within 20 days from the date of the minute
order” if the time for an answer has expired.10 On July 25, 2006, defendant Rundell filed
the underlying motion requesting the court to dismiss plaintiff’s complaint for failure of
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(5) allows a defendant to move to dismiss a
complaint on the grounds of “insufficiency of service of process.” Rule 4(m) provides
that “if service of the summons and complaint is not made upon a defendant within 120
days after the filing of the complaint, the court...shall dismiss the action without
Doc. 12 at 1.
Doc. 21. The court’s order at docket 21 also denied as moot plaintiff’s motion at docket
5 for a hearing on the certification and defendant’s motion at docket 13 to dismiss as
defendants the United States and Rundell in her official capacity.
prejudice as to that defendant or direct that service be effected within a specified time.”
“[I]f the plaintiff shows good cause for the failure, the court shall extend the time for
service for an appropriate period.”12
Rule 4(i)(2)(B) further provides:
Service on an officer or employee of the United States sued in an individual
capacity for acts or omissions occurring in connection with the performance of
duties on behalf of the United States - whether or not the officer or employee is
sued also in an official capacity - is effected by serving the United States in the
manner prescribed by Rule 4(i)(1) and by serving the officer or employee in the
manner prescribed by Rule 4(e)...
Rule 4(i)(1) requires a plaintiff to serve the United States by serving the United States
Attorney for the district in which the action is brought, the Attorney General of the United
States, and the officer or agency. Rule 4(e) provides that unless otherwise provided by
federal law, service upon an individual may be effected in any judicial district of the
(1) pursuant to the law of the state in which the court is located, or in which
service is effected...or (2) by delivering a copy of the summons and of the
complaint to the individual personally or by leaving copies thereof at the
individual’s dwelling house or usual place of abode with some person of suitable
age and discretion then residing therein or by delivering a copy of the summons
and of the complaint to an agent authorized by appointment or by law to receive
service of process.
Defendant argues that plaintiff’s complaint should be dismissed because the time
limit for service has expired under Rule 4(m) and plaintiff “did not serve Ms. Rundell
properly under Rule 4(i)(2)(B) for service of a federal officer sued in her individual
capacity and he did not serve her properly in her individual capacity as required by Rule
4(e)...”13 Defendant specifically alleges that plaintiff failed to serve the United States
Attorney and the Attorney General pursuant to Rule 4(i)(1), and also failed to satisfy the
applicable rules for individual service in the states of Alaska or New Mexico.
Fed. R. Civ. P. 4(m)
Doc. 25 at 6.
Plaintiff opposes the motion to dismiss on the grounds that he properly served
defendant Rundell with copies of the complaint and summons by certified mail and
restricted delivery at her work address, “the only address available to Plaintiff.”14
Plaintiff further argues that the United States Attorney’s Notice of Removal makes moot
defendant’s argument that service was defective.
“Rule 4 is a flexible rule that should be liberally construed so long as a party
receives sufficient notice of the complaint.”15 “However, neither actual notice nor simply
naming the defendant in the complaint will provide personal jurisdiction without
‘substantial compliance with Rule 4.’”16 As set out above, Rule 4(e) provides that
service upon an individual may be effected in any judicial district of the United States
pursuant to the law of the state in which service is effected.
Here, service was effected by mail in New Mexico. Defendant acknowledges
that under New Mexico District Court Rules of Civil Procedure, service may be made by
mail, provided: 1) a copy of process is delivered to the party’s actual place of business
to the person apparently in charge, 2) a copy of the summons and complaint is mailed
by first class mail to the party’s last known address, and 3) a copy of the summons and
complaint is sent to the party’s actual place of employment.17 Defendant argues that
service was insufficient because plaintiff did not send a copy of the process to the
person apparently in charge of Rundell’s place of business or to her last known
address. Plaintiff alleges that service was sufficient under the New Mexico District
Court rule for personal service because the address for the New Mexico BLM office is
the “only address available to Plaintiff” and Rundell is the person apparently in charge of
her place of business as she is the State Director for the New Mexico BLM Office.18
Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (quotation and citation omitted).
Id. (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982).
Doc. 25 at 8 (citing N.M. Dist. Ct. R. Civ. P. 100(F)(3)).
Doc. 27 at 1.
Based on the above, the court finds that plaintiff substantially complied with
Federal Rule of Civil Procedure 4(e), and defendant Rundell received sufficient service
as an individual. It is undisputed that plaintiff failed to serve the United States Attorney
and the Attorney General as is required under Rule 4(i)(1). It is also undisputed that the
United States Attorney received actual notice of the complaint and summons in this
matter as is evidenced by the Notice of Removal. However, under controlling case law,
defendant’s actual notice does not cure plaintiff’s insufficient service of the United
States Attorney and the Attorney General under Rule 4(i)(1).19 Accordingly, the court
directs plaintiff to effect proper service on the United States Attorney and the Attorney
General and file proof of such service within twenty-five (25) days from the filing of this
order. If plaintiff fails to do so, this case will be dismissed without prejudice.
For the reasons set out above, defendant’s motion to dismiss at docket 25 is
DENIED. It is further ORDERED that within twenty-five (25) days from the filing of this
order, plaintiff shall file proof of service on the United States pursuant to Federal Rule of
Civil Procedure 4(i)(1) which shall be accomplished by sending a copy of the summons
and complaint by registered or certified mail to the United States Attorney’s Office, 222
West 7th, #9, Anchorage, Alaska, 99513, 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, United States Department of Justice, 950 Pennsylvania Avenue, NW,
Washington, D.C., 20530-0001.
DATED at Anchorage, Alaska, this 15th day of September 2006.
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
Jackson, 682 F.2d at 1347.
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