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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Jose Carlos Guerrero Torres, 9 Plaintiff, 10 vs. 11 12 Carolyn W. Colvin, Acting Commissioner of Social Security Administration, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-13-2300-PHX-LOA ORDER 15 This Social Security appeal is again before the Court on the Plaintiff’s Motion to 16 Allow Plaintiff to Proceed with Claim. (Doc. 20) Despite acknowledging that he has not 17 fully complied with the service requirements on the “United States” pursuant to Rule 4(i), 18 Plaintiff invites the Court “[t]o allow the case to move forward on its merits and direct 19 Defendants to file their Answer. (Id. at 2) Despite established authority to the contrary, 20 Plaintiff has not provided the Court with any case law or other authority that a district court 21 may disregard Rule 4’s formalities for service of process when an unserved defendant 22 purportedly has actual notice of an action or appeal.1 The Court declines Plaintiff’s invitation 23 24 25 26 27 28 1 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. 1 to disregard the formalities of service, but will generously construe Plaintiff’s motion as 2 requesting another extension of time to effectuate valid service. (Doc. 16) The Commissioner 3 of the Social Security Administration (“SSA”) has not appeared in this District Court matter 4 to date.2 5 I. Background 6 Plaintiff filed a complaint on November 11, 2013, appealing the Commissioner’s 7 adverse ruling at the administrative level of his claim for Social Security disability benefits. 8 (Doc. 1) Plaintiff requested in forma pauperis status so he could proceed without prepaying 9 a filing fee or service-of-process costs. (Doc. 2) After screening the complaint pursuant to 10 28 U.S.C. § 1915(e)(2), the Court ordered Plaintiff to file an amended complaint because it 11 failed to state a claim upon which relief could be granted. (Doc. 6) Plaintiff consented to 12 magistrate-judge jurisdiction on December 3, 2013, and filed a timely amended complaint 13 on December 9, 2013. (Docs. 7-8) Upon his counsel’s request that Plaintiff be responsible 14 for service of the summons and complaint, which is contrary to Rule 4(c)(3), Fed.R.Civ.P., 15 the Court ordered that Plaintiff be responsible for service of process on the Commissioner. 16 (Doc. 9) 17 After issuing a Rule 16 scheduling order, the Court ordered Plaintiff to take certain 18 actions, on or before May 30, 2014, or this appeal would be dismissed without prejudice for 19 lack of prosecution or failure to serve process within 120 days per Rule 4(m) without further 20 notice.(Doc. 15) In a prompt response to the Court’s May 19, 2014 Order to Show Cause, 21 Plaintiff moved for an extension of time to serve process, explaining various challenges 22 several attorneys encountered in representing Plaintiff and attempting to timely serve 23 process. (Doc. 16) Plaintiff requested a 6-day extension of time to serve process, representing 24 these challenges resulted in the “Defendants” being served with the amended complaint 25 26 27 Ashcroft, 2009 WL 636191 (N.D. Cal. March 11, 2009) (citing Beecher v. Wallace, 381 F.2d 372, 373 (9th Cir. 1967)). 2 28 Plaintiff’s counsel appears to use the terms “United States” and “Commissioner” synonymously. -2- 1 “[o]n March 17, 2014 - six days after the 120 days expired on March 11, 2014.” (Id. at 1, 2 Exhs. 1 and 2). The Court found that “excusable neglect resulted in Plaintiff’s failure to 3 serve the Commissioner within 120 days after the complaint was filed.” (Doc. 17 at 3) The 4 Court granted Plaintiff an extension to serve the Commissioner and retroactively extended 5 the service-of-process deadline to March 17, 2014, the date Plaintiff’s counsel requested. 6 (Id.) In its Order, the Court did not express an opinion whether Plaintiff had lawfully served 7 the Commissioner pursuant to Rule 4(i), Fed.R.Civ.P. 8 On July 3, 2014, Plaintiff filed the pending motion, indicating that Plaintiff served the 9 Office of General Counsel and the United States Attorney General on March 17 and March 10 25, 2014, respectively. (Doc. 20 at 1) He indicates that “[u]nfortunately, summons were (sic) 11 not issued to the civil process clerk at the Attorney General’s office by mistake.” (Id.) 12 Plaintiff represents the “Attorney General’s” office in Phoenix was notified of the case by 13 phone call on May 19, 2014, and that “[t]wo out of three of the agencies have been served 14 and the Attorney General’s office in Phoenix is well aware of the case[, but] [t]he Attorney 15 General’s Office has indicated to Plaintiff’s attorneys that they will not waive the final 16 service of process.” (Id. at 2) According to Plaintiff, “[d]elaying the case further or 17 dismissing the case would harm only Plaintiff . . . Therefore, we ask the Court to allow the 18 case to move forward on its merits and direct Defendants to file their Answer.” (Id.) 19 II. Service of Process 20 A. Generally 21 “A federal court is without personal jurisdiction over a defendant unless the defendant 22 has been served in accordance with Fed.R.Civ.P. 4.” Benny v. Pipes, 799 F.2d 489, 492 (9th 23 Cir. 1986) (citation omitted); see also S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). 24 “Rule 4 is a flexible rule that should be liberally construed so long as a party receives 25 sufficient notice of the complaint.” United Food & Commercial Workers Union v. Alpha 26 Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984) (citations omitted). “Indeed, ‘the purpose of 27 service is to give the defendant notice of the institution of the proceedings.’” Sweeney v. 28 Darricarrere, 2009 WL 2132696, at *4 (D. Ariz. July 14, 2009) (quoting Charles A. Wright -3- 1 & Arthur R. Miller, Federal Practice and Procedure, Civil 3d § 1094 at 511). “However, 2 Rule 4 is a flexible rule that should be liberally construed so long as a party receives 3 sufficient notice of the complaint.” Direct Mail Specialists, Inc. v. Eclat Computerized 4 Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citation and internal quotation marks 5 omitted). “Nonetheless, without substantial compliance with Rule 4 neither actual notice nor 6 simply naming the defendant in the complaint will provide personal jurisdiction.” Id. 7 (citation and internal quotation marks omitted). 8 B. Extensions of Time to Serve Process 9 Federal Rule of Civil Procedure 4(m) provides that an action against a defendant 10 shall be dismissed without prejudice if that defendant is not served with a copy of the 11 summons and complaint within 120 days after the filing of the complaint, unless the plaintiff 12 can show good cause why service was not made within the 120 day period. The 120-day rule 13 “is intended to force parties and their attorneys to be diligent in prosecuting their causes of 14 action.” Townsel v. Contra Costa Cnty., 820 F.2d 319, 320 (9th Cir. 1987). 15 An appeal to a district court from an adverse ruling on a Social Security benefits 16 claim may be dismissed for failure to properly serve the Commissioner. See White v. 17 Commissioner of Social Sec., 2014 WL 1027523 (E.D. Cal. March 17, 2014); Bodner v. 18 Colvin, 2014 WL 1577477 (D. Nev. April 17, 2014); Synnestvedt v. Astrue, 2010 WL 19 125649 (W.D. Okla. Jan. 7, 2010). Where service is made properly on the United States 20 Attorney, but the complaint names the organization of the United States being sued instead 21 of the United States, service is still proper upon the United States. Doe v. Hagee, 473 22 F.Supp.2d 989 (N.D. Cal. 2007). 23 A district court has broad discretion in deciding whether to extend the time for service 24 of process. U.S. v. 164 Watches, More or Less Bearing on Registered Trademark of Guess? 25 Inc., 366 F.3d 767, 772 (9th Cir. 2004); In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). 26 A district court may, for instance, extend time for service retroactively after the 120-day 27 service period has expired. See Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 28 2003). If the court does not find good cause to extend time for service as contemplated under -4- 1 Rule 4(m), a court may nevertheless extend the time for service upon a showing of excusable 2 neglect. Lemoge v. U .S., 587 F.3d 1188, 1198 (9th Cir. 2009) (citing In re Sheehan, 253 3 F.3d at 512-14). Factors to consider in the exercise of that wide discretion are, inter alia, 4 whether the defendant has suffered prejudice in the delay of service and would the plaintiff 5 be severely prejudiced if his complaint were dismissed. Id. (quoting Boudette v. Barnette, 6 923 F.2d 754, 756 (9th Cir. 1991)). 7 C. Service on the United States or its Agencies 8 Federal Rule of Civil Procedure 4(i) dictates how a plaintiff effectuates service upon 9 the United States and its agencies, corporations, officers, or employees. Under Rule 4(i)(1), 10 Fed.R.Civ.P., a party must first deliver copies of the summons and complaint to the United 11 States Attorney for the district where the action is brought (or to an Assistant United States 12 Attorney or designated clerical employee), or send copies of each by registered or certified 13 mail to the civil-process clerk at the United States Attorney’s Office. See Rule 14 4(i)(1)(A)(i)-(ii), Fed.R.Civ.P. A party must also send copies of the summons and complaint 15 by registered or certified mail to the Attorney General of the United States at Washington, 16 D.C. See Fed.R.Civ.P. 4(i)(1)(B). 17 Importantly for this case, in order to serve a United States agency, like the Social 18 Security Administration, or the SSA’s Commissioner if sued in her official capacity, original 19 process must be served upon the agency or employee if a named defendant by (1) serving 20 the United States pursuant to Fed.R.Civ.P. 4(i)(1)(A),(B); and (2) sending a copy of the 21 summons and complaint by registered or certified mail to the federal agency or employee 22 named as a defendant. See Rule 4(i)(2),3 Fed.R.Civ.P.; Salas v. Dyer, 2011 WL 1158570, at 23 24 25 26 27 28 3 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. -5- 1 *3 (D. Ariz. March 10, 2011), report and recommendation adopted by 2011 WL 1156749 2 (D. Ariz. March 29, 2011). 3 Contrary to Plaintiff’s apparent belief, the United States cannot waive service of 4 process. See Constien v. U.S., 628 F.3d 1207, 1213 (10th Cir. 2010) (citing Rule 4, advisory 5 committee’s note, 1993 Amendments) (“The United States is not expected to waive service 6 for the reason that its mail receiving facilities are inadequate to assure that the notice is 7 actually received by the correct person in the Department of Justice.”), cert. denied, Constien 8 v. U.S., 131 S.Ct. 2884 (2011). The Federal Rules also provide a “cure provision.” Rule 9 4(i)(4), Fed.R.Civ.P., states that “[t]he court must allow a party a reasonable time to cure its 10 failure to . . . serve a person required to be served under Rule 4(i)(2), if the party has served 11 either the United States attorney or the Attorney General of the United States.” 4(i)(4), 12 Fed.R.Civ.P.; Wright v. Colvin, 2014 WL 325647 (D. Neb. Jan. 29, 2014). 13 III. Discussion 14 Here, Plaintiff appears to be attempting to serve the United States, a non-party, rather 15 than the SSA’s Commissioner, the only party-defendant sued herein in her official capacity. 16 See Rule 4(i)(2), Fed.R.Civ.P. 17 The Court finds that excusable neglect resulted in Plaintiff’s failure to serve the 18 Commissioner by the extended service-of-process deadline of March 17, 2014, the date 19 Plaintiff’s counsel misrepresented, likely inadvertently, the Commissioner was lawfully 20 served. Clearly, Plaintiff’s counsel is inexperienced with the federal rules for service and the 21 Court will not prejudice Plaintiff for his lawyer’s inadequacies at this time. The Court 22 discerns the Commissioner will suffer no prejudice if the Court allows one final extension. 23 Moreover, if the Court dismisses this appeal without prejudice, Plaintiff’s appeal will likely 24 be time-barred, if re-filed. 25 The Court will retroactively extend the service deadline to Friday, August 15, 2014 26 to properly serve the Commissioner. Plaintiff and his counsel are forewarned that, due to the 27 28 Rule 4(i)(2), Fed.R.Civ.P. -6- 1 age of this appeal, Plaintiff’s failure to lawfully serve the Commissioner by the August 15, 2 2014 deadline, will result in the dismissal of this appeal. See Jackson v. Hayakawa, 682 F.2d 3 1344, 1347 (9th Cir. 1982). 4 Based on the foregoing, 5 IT IS ORDERED that Plaintiff’s Motion to Allow Plaintiff to Proceed with Claim, 6 doc. 20, is DENIED. In the interest of justice and pursuant to Rule 4(i)(4), Fed.R.Civ.P., the 7 Court hereby extends the time to properly serve the Commissioner with process from March 8 17, 2014, nunc pro tunc, to Friday, August 15, 2014, a reasonable time to complete service. 9 There shall not be any additional extensions to properly serve the Commissioner with 10 process. Plaintiff’s failure to properly serve the Commissioner by the August 15, 2014 will 11 result in the dismissal of this appeal. 12 Dated this 30th day of July, 2014. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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