MUNSEE DELAWARE INDIAN NATION et al v. FLEMING et al

Filing 23

MEMORANDUM OPINION: The Court will DISMISS Plaintiffs' Complaint 1 pursuant to Fed. R. Civ. P. 4(m). See attached document for details. A separate order will issue. Signed by Judge Randolph D. Moss on 11/9/2017. (lcrdm3, ) Modified on 11/9/2017 to change document type to opinion (kt).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MUNSEE DELAWARE INDIAN NATION
and WILLIAM LITTLE SOLDIER,
Plaintiffs,
v.

Civil Action No. 16-2388 (RDM)

R. LEE FLEMMING, Director, Office of
Federal Acknowledgment, Bureau of Indian
Affairs, Department of the Interior, et al.,
Defendants.
MEMORANDUM OPINION
On December 7, 2016, this Court ordered Plaintiffs to show cause on or before January 9,
2017, why their action should not be dismissed without prejudice for failure to prosecute
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. See Dkt. 16 at 3. The Court
noted that to avoid dismissal, Plaintiffs were required to serve Defendants in accordance with
Rules 4(a), 4(c), and 4(i) within ninety days of filing the complaint. See id.; see also Fed. R. Civ.
P. 4(m). Ninety days elapsed on December 15, 2016. Id. On Plaintiffs’ motion for additional
time, the Court extended the deadline to respond to this initial show cause order to February 23,
2017. See Minute Order (January 18, 2017).
Plaintiffs replied on January 23, 2017, but failed to address the defects in service that had
previously been identified by this Court. See Dkt. 18. Plaintiff William Little Soldier did file a
document stating that he had sent a “copy of the . . . COMPLAINT” by “Federal Express
Registered Delivery” to the Director of the Bureau of Indian Affairs and the Director of the
Bureau of Indian Affair’s Office of Acknowledgement. Dkt. 18 at 11. In a second show cause

order on May 17, 2017, however, the Court explained that Plaintiffs’ attempt at service was not
“in conformity with Rules 4(a), 4(c), or 4(i), as the Court’s prior order required.” Dkt. 19 at 1.
Because deficiencies in service remained, the Court ordered the Plaintiffs to show cause on or
before June 16, 2017, “why this action should not be dismissed without prejudice for failure to
prosecute pursuant to Rule 4(m).” Id. at 2. Furthermore, Plaintiffs were to “demonstrate
whether ‘good cause’ exist[ed] for their failure timely to effect service, and whether equitable
factors support[ed] granting them an extension of time to do so.” Id.
Plaintiffs suggest that they have satisfied the requirements of Rule 4(c)(2), arguing that
use of Federal Express constitutes service by a non-party, and that they have satisfied the
requirements of Rule 4(i), arguing that Federal Express constitutes a private “mail” service. See
Dkt. 21. But, even if Plaintiffs were correct about both of these contentions, cf. Ilaw v. Dep’t of
Justice, 309 F.R.D. 101, 105 (D.D.C. 2015) (describing as an open question circumstances in
which use of Federal Express can constitute proper service), it remains clear that they have failed
to effect service in the prescribed manner. As Rule 4(i) provides, a plaintiff seeking to sue an
agency of the United States must serve a designated recipient within the office of the “United
States attorney for the district where the action is brought,” “the Attorney General of the United
States at Washington, D.C.,” and the agency named in the suit. Fed. R. Civ. P. 4(i); see also
Koerner v. United States, 246 F.R.D. 45, 48 (D.D.C. 2007). Here, Plaintiffs have only attempted
to serve the Director of the Bureau of Indian Affairs and the Director of the Office of
Acknowledgment. Dkt. 18 at 11. They have not attempted to serve the U.S. Attorney, the
Attorney General, or the Department of the Interior.
Plaintiffs have also failed to identify “good cause” for the failure to effect service in
compliance with Rule 4(i), because “[g]ood cause exists when some outside factor[,] rather than

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inadvertence or negligence, prevented service.” Mann v. Castiel, 681 F.3d 368, 374 (D.C. Cir.
2012) (emphasis added) (alteration, citation, and internal quotation marks omitted). Without
proof of good cause, the Court may consider equitable factors and either dismiss the case or
extend the time for effecting service. See id. at 375−76. “[D]ismissal of a case pursuant to Rule
4(m) is appropriate when the plaintiff’s failure to effect proper service is the result of
inadvertence, oversight, or neglect, and dismissal leaves the plaintiff in the same position as if
the action had never been filed.” Id. at 376 (citations and internal quotation marks omitted).
Service is now nearly a year overdue. The Court has extended Plaintiffs’ deadline by
which to effect service three times. The continued failure to comply with the requirements of
Rule 4(i) can be attributed solely to the “inadvertence, oversight, or neglect” of the Plaintiffs.
See Fed. R. Civ. P. 4(m). Such a dismissal “leaves the [Plaintiffs] in the same position as if the
action had never been filed.” Id.
The Court will, accordingly, DISMISS this action without prejudice. A separate order
will issue.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: November 9, 2017

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