BOLANOS-REYNOSO v. VILSACK

Filing 9

Memorandum Opinion re: 8 Return of Service/Affidavit. See attached Opinion for details. Signed by Judge Trevor N. McFadden on 6/3/2024. (lctnm3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TOMASA GABRIELLA BOLANOSREYNOSO,
Plaintiff,

Case No. 1:24-cv-00547 (TNM)

v.
THOMAS J. VILSACK,
Defendant.

MEMORANDUM OPINION
Plaintiff Tomasa Bolanos-Reynoso brings this suit, alleging that her employer, the U.S.
Department of Agriculture, has failed to accommodate her disabilities under the Rehabilitation
Act of 1973, Pub. L. No. 93-112, 87 Stat. 355, as amended. See Compl. ¶¶ 69–77, ECF No. 1.
Bolanos-Reynoso sued on February 27, 2024. See generally Compl. That meant she had
until May 28 to serve the Defendant, Thomas Vilsack, the Secretary of Agriculture. Fed. R. Civ.
P. 4(m); see also Fed. R. Civ. P. 6(a)(1)(C), (a)(6)(A) (calculating time). The Court reminded
her of this obligation on May 1, over three weeks prior to the deadline. May 1, 2024, Minute
Order. On May 27, her attorney filed what he claimed was proof of service. ECF No. 8.
That service was deficient. Bolanos-Reynoso’s lawsuit is directed at a federal officer in
his official capacity. Compl. ¶ 6. Thus, she must both “serve the United States” and serve that
officer. Fed. R. Civ. P. 4(i)(2). Serving the United States requires her to “deliver a copy of the
summons and of the complaint to the United States attorney” for the forum district or his civilprocess clerk, along with the Attorney General of the United States. Fed. R. Civ. P. 4(i)(1).
The United States was never served. Although Bolanos-Reynoso submitted proof of
service on the defendant officer, ECF No. 8, she submitted nothing to suggest she ever served

either the United States Attorney or the Attorney General. She therefore failed to properly serve
process in this case, and thus defaulted on her Rule 4(m) obligation to do so within 90 days.
That leaves the Court with two options: It “must” either “dismiss the action without
prejudice . . . or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). There
is no reason to again order Bolanos-Reynoso to timely serve process. The Court already did so
once, May 1, 2024, Minute Order, to no avail. And Plaintiff is represented by attorneys who are
familiar enough with federal court practice to abide by Rule 4’s standard rules.
More, there is no basis for an extension of time either. Under Rule 4(m), the Court must
extend the time to serve a defendant if the plaintiff identifies “good cause” to do so. Fed. R. Civ.
P. 4(m). But Bolanos-Reynoso “made no attempt to demonstrate good cause . . . before the
deadline for service . . . passed.” Morrissey v. Mayorkas, 17 F.4th 1150, 1158 (D.C. Cir. 2021).
Separately, Rule 4(i)(4) requires the Court to extend the time for service “if the party has served
either the United States attorney or the Attorney General of the United States.” Fed. R. Civ. P.
4(i)(4)(A). But Bolanos-Reynoso hasn’t served the United States Attorney or the Attorney
General. So this rule does not apply either. Morrissey, 17 F.4th at 1159. Indeed, this provision
implies that an extension is unwarranted where a plaintiff, like Bolanos-Reynoso, has served
neither officer. Accord Morrissey v. Wolf, 333 F.R.D. 1, 3 (D.D.C. 2019), aff’d sub nom.,
Morrissey v. Mayorkas, 17 F.4th 1150 (D.C. Cir. 2021). In sum, there is no reason to extend the
time to serve Defendants.
So, the Court will order that this case be dismissed without prejudice. A separate Order
to that effect will issue today.

2024.06.03
18:02:06 -04'00'

Dated: June 3, 2024

TREVOR N. McFADDEN, U.S.D.J.

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