Torres v. Colvin

Filing 21

ORDER, Plaintiff's Motion to Allow Plaintiff to Proceed with Claim 20 is denied; the Court extends the time to properly serve the Commissioner with process from March 17, 2014, nunc pro tunc, to August 15, 2014; Plaintiff's failure to properly serve the Commissioner by 8/15/14 will result in the dismissal of this appeal. Signed by Magistrate Judge Lawrence O Anderson on 7/30/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Carlos Guerrero Torres,
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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,

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Defendant.
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No. CV-13-2300-PHX-LOA
ORDER

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This Social Security appeal is again before the Court on the Plaintiff’s Motion to

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Allow Plaintiff to Proceed with Claim. (Doc. 20) Despite acknowledging that he has not

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fully complied with the service requirements on the “United States” pursuant to Rule 4(i),

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Plaintiff invites the Court “[t]o allow the case to move forward on its merits and direct

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Defendants to file their Answer. (Id. at 2) Despite established authority to the contrary,

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Plaintiff has not provided the Court with any case law or other authority that a district court

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may disregard Rule 4’s formalities for service of process when an unserved defendant

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purportedly has actual notice of an action or appeal.1 The Court declines Plaintiff’s invitation

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See, e.g., Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347
(1999) (“An individual or entity named as a defendant is not obliged to engage in litigation
unless notified of the action, and brought under a court’s authority, by formal process.”
(emphasis added); Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Neither
actual notice, nor simply naming the person in the caption of the complaint will subject
defendant[ ] to personal jurisdiction if service was not made in substantial compliance with
Rule 4.”). “Service of process (in the absence of a voluntary appearance or a conscious
waiver) is an indispensable prerequisite to the court’s jurisdiction to proceed.” Liao v.

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to disregard the formalities of service, but will generously construe Plaintiff’s motion as

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requesting another extension of time to effectuate valid service. (Doc. 16) The Commissioner

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of the Social Security Administration (“SSA”) has not appeared in this District Court matter

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to date.2

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I. Background

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Plaintiff filed a complaint on November 11, 2013, appealing the Commissioner’s

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adverse ruling at the administrative level of his claim for Social Security disability benefits.

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(Doc. 1) Plaintiff requested in forma pauperis status so he could proceed without prepaying

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a filing fee or service-of-process costs. (Doc. 2) After screening the complaint pursuant to

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28 U.S.C. § 1915(e)(2), the Court ordered Plaintiff to file an amended complaint because it

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failed to state a claim upon which relief could be granted. (Doc. 6) Plaintiff consented to

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magistrate-judge jurisdiction on December 3, 2013, and filed a timely amended complaint

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on December 9, 2013. (Docs. 7-8) Upon his counsel’s request that Plaintiff be responsible

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for service of the summons and complaint, which is contrary to Rule 4(c)(3), Fed.R.Civ.P.,

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the Court ordered that Plaintiff be responsible for service of process on the Commissioner.

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(Doc. 9)

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After issuing a Rule 16 scheduling order, the Court ordered Plaintiff to take certain

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actions, on or before May 30, 2014, or this appeal would be dismissed without prejudice for

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lack of prosecution or failure to serve process within 120 days per Rule 4(m) without further

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notice.(Doc. 15) In a prompt response to the Court’s May 19, 2014 Order to Show Cause,

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Plaintiff moved for an extension of time to serve process, explaining various challenges

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several attorneys encountered in representing Plaintiff and attempting to timely serve

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process. (Doc. 16) Plaintiff requested a 6-day extension of time to serve process, representing

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these challenges resulted in the “Defendants” being served with the amended complaint

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Ashcroft, 2009 WL 636191 (N.D. Cal. March 11, 2009) (citing Beecher v. Wallace, 381 F.2d
372, 373 (9th Cir. 1967)).
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Plaintiff’s counsel appears to use the terms “United States” and “Commissioner”
synonymously.
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“[o]n March 17, 2014 - six days after the 120 days expired on March 11, 2014.” (Id. at 1,

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Exhs. 1 and 2). The Court found that “excusable neglect resulted in Plaintiff’s failure to

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serve the Commissioner within 120 days after the complaint was filed.” (Doc. 17 at 3) The

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Court granted Plaintiff an extension to serve the Commissioner and retroactively extended

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the service-of-process deadline to March 17, 2014, the date Plaintiff’s counsel requested.

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(Id.) In its Order, the Court did not express an opinion whether Plaintiff had lawfully served

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the Commissioner pursuant to Rule 4(i), Fed.R.Civ.P.

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On July 3, 2014, Plaintiff filed the pending motion, indicating that Plaintiff served the

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Office of General Counsel and the United States Attorney General on March 17 and March

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25, 2014, respectively. (Doc. 20 at 1) He indicates that “[u]nfortunately, summons were (sic)

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not issued to the civil process clerk at the Attorney General’s office by mistake.” (Id.)

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Plaintiff represents the “Attorney General’s” office in Phoenix was notified of the case by

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phone call on May 19, 2014, and that “[t]wo out of three of the agencies have been served

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and the Attorney General’s office in Phoenix is well aware of the case[, but] [t]he Attorney

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General’s Office has indicated to Plaintiff’s attorneys that they will not waive the final

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service of process.” (Id. at 2) According to Plaintiff, “[d]elaying the case further or

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dismissing the case would harm only Plaintiff . . . Therefore, we ask the Court to allow the

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case to move forward on its merits and direct Defendants to file their Answer.” (Id.)

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II. Service of Process

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A. Generally

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“A federal court is without personal jurisdiction over a defendant unless the defendant

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has been served in accordance with Fed.R.Civ.P. 4.” Benny v. Pipes, 799 F.2d 489, 492 (9th

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Cir. 1986) (citation omitted); see also S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007).

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“Rule 4 is a flexible rule that should be liberally construed so long as a party receives

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sufficient notice of the complaint.” United Food & Commercial Workers Union v. Alpha

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Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984) (citations omitted). “Indeed, ‘the purpose of

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service is to give the defendant notice of the institution of the proceedings.’” Sweeney v.

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Darricarrere, 2009 WL 2132696, at *4 (D. Ariz. July 14, 2009) (quoting Charles A. Wright
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& Arthur R. Miller, Federal Practice and Procedure, Civil 3d § 1094 at 511). “However,

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Rule 4 is a flexible rule that should be liberally construed so long as a party receives

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sufficient notice of the complaint.” Direct Mail Specialists, Inc. v. Eclat Computerized

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Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citation and internal quotation marks

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omitted). “Nonetheless, without substantial compliance with Rule 4 neither actual notice nor

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simply naming the defendant in the complaint will provide personal jurisdiction.” Id.

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(citation and internal quotation marks omitted).

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B. Extensions of Time to Serve Process

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Federal Rule of Civil Procedure 4(m) provides that an action against a defendant

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shall be dismissed without prejudice if that defendant is not served with a copy of the

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summons and complaint within 120 days after the filing of the complaint, unless the plaintiff

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can show good cause why service was not made within the 120 day period. The 120-day rule

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“is intended to force parties and their attorneys to be diligent in prosecuting their causes of

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action.” Townsel v. Contra Costa Cnty., 820 F.2d 319, 320 (9th Cir. 1987).

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An appeal to a district court from an adverse ruling on a Social Security benefits

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claim may be dismissed for failure to properly serve the Commissioner. See White v.

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Commissioner of Social Sec., 2014 WL 1027523 (E.D. Cal. March 17, 2014); Bodner v.

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Colvin, 2014 WL 1577477 (D. Nev. April 17, 2014); Synnestvedt v. Astrue, 2010 WL

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125649 (W.D. Okla. Jan. 7, 2010). Where service is made properly on the United States

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Attorney, but the complaint names the organization of the United States being sued instead

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of the United States, service is still proper upon the United States. Doe v. Hagee, 473

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F.Supp.2d 989 (N.D. Cal. 2007).

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A district court has broad discretion in deciding whether to extend the time for service

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of process. U.S. v. 164 Watches, More or Less Bearing on Registered Trademark of Guess?

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Inc., 366 F.3d 767, 772 (9th Cir. 2004); In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001).

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A district court may, for instance, extend time for service retroactively after the 120-day

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service period has expired. See Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir.

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2003). If the court does not find good cause to extend time for service as contemplated under
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Rule 4(m), a court may nevertheless extend the time for service upon a showing of excusable

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neglect. Lemoge v. U .S., 587 F.3d 1188, 1198 (9th Cir. 2009) (citing In re Sheehan, 253

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F.3d at 512-14). Factors to consider in the exercise of that wide discretion are, inter alia,

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whether the defendant has suffered prejudice in the delay of service and would the plaintiff

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be severely prejudiced if his complaint were dismissed. Id. (quoting Boudette v. Barnette,

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923 F.2d 754, 756 (9th Cir. 1991)).

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C. Service on the United States or its Agencies

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Federal Rule of Civil Procedure 4(i) dictates how a plaintiff effectuates service upon

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the United States and its agencies, corporations, officers, or employees. Under Rule 4(i)(1),

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Fed.R.Civ.P., a party must first deliver copies of the summons and complaint to the United

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States Attorney for the district where the action is brought (or to an Assistant United States

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Attorney or designated clerical employee), or send copies of each by registered or certified

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mail to the civil-process clerk at the United States Attorney’s Office. See Rule

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4(i)(1)(A)(i)-(ii), Fed.R.Civ.P. A party must also send copies of the summons and complaint

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by registered or certified mail to the Attorney General of the United States at Washington,

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D.C. See Fed.R.Civ.P. 4(i)(1)(B).

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Importantly for this case, in order to serve a United States agency, like the Social

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Security Administration, or the SSA’s Commissioner if sued in her official capacity, original

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process must be served upon the agency or employee if a named defendant by (1) serving

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the United States pursuant to Fed.R.Civ.P. 4(i)(1)(A),(B); and (2) sending a copy of the

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summons and complaint by registered or certified mail to the federal agency or employee

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named as a defendant. See Rule 4(i)(2),3 Fed.R.Civ.P.; Salas v. Dyer, 2011 WL 1158570, at

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Federal Rule of Civil Procedure 4(i)(2) provides as follows:

(2) Agency; Corporation; Officer or Employee Sued in an Official
Capacity. 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 [in the manner prescribed in Rule 4(i)(1)] and also send a copy
of the summons and of the complaint by registered or certified mail to the
agency, corporation, officer, or employee.
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*3 (D. Ariz. March 10, 2011), report and recommendation adopted by 2011 WL 1156749

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(D. Ariz. March 29, 2011).

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Contrary to Plaintiff’s apparent belief, the United States cannot waive service of

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process. See Constien v. U.S., 628 F.3d 1207, 1213 (10th Cir. 2010) (citing Rule 4, advisory

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committee’s note, 1993 Amendments) (“The United States is not expected to waive service

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for the reason that its mail receiving facilities are inadequate to assure that the notice is

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actually received by the correct person in the Department of Justice.”), cert. denied, Constien

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v. U.S., 131 S.Ct. 2884 (2011). The Federal Rules also provide a “cure provision.” Rule

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4(i)(4), Fed.R.Civ.P., states that “[t]he court must allow a party a reasonable time to cure its

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failure to . . . serve a person required to be served under Rule 4(i)(2), if the party has served

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either the United States attorney or the Attorney General of the United States.” 4(i)(4),

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Fed.R.Civ.P.; Wright v. Colvin, 2014 WL 325647 (D. Neb. Jan. 29, 2014).

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III. Discussion

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Here, Plaintiff appears to be attempting to serve the United States, a non-party, rather

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than the SSA’s Commissioner, the only party-defendant sued herein in her official capacity.

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See Rule 4(i)(2), Fed.R.Civ.P.

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The Court finds that excusable neglect resulted in Plaintiff’s failure to serve the

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Commissioner by the extended service-of-process deadline of March 17, 2014, the date

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Plaintiff’s counsel misrepresented, likely inadvertently, the Commissioner was lawfully

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served. Clearly, Plaintiff’s counsel is inexperienced with the federal rules for service and the

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Court will not prejudice Plaintiff for his lawyer’s inadequacies at this time. The Court

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discerns the Commissioner will suffer no prejudice if the Court allows one final extension.

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Moreover, if the Court dismisses this appeal without prejudice, Plaintiff’s appeal will likely

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be time-barred, if re-filed.

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The Court will retroactively extend the service deadline to Friday, August 15, 2014

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to properly serve the Commissioner. Plaintiff and his counsel are forewarned that, due to the

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Rule 4(i)(2), Fed.R.Civ.P.
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age of this appeal, Plaintiff’s failure to lawfully serve the Commissioner by the August 15,

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2014 deadline, will result in the dismissal of this appeal. See Jackson v. Hayakawa, 682 F.2d

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1344, 1347 (9th Cir. 1982).

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s Motion to Allow Plaintiff to Proceed with Claim,

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doc. 20, is DENIED. In the interest of justice and pursuant to Rule 4(i)(4), Fed.R.Civ.P., the

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Court hereby extends the time to properly serve the Commissioner with process from March

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17, 2014, nunc pro tunc, to Friday, August 15, 2014, a reasonable time to complete service.

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There shall not be any additional extensions to properly serve the Commissioner with

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process. Plaintiff’s failure to properly serve the Commissioner by the August 15, 2014 will

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result in the dismissal of this appeal.

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Dated this 30th day of July, 2014.

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