Gary v. Commissioner of Social Security

Filing 10

ORDER directing Plaintiff to cure her deficiency in service within forty-five (45) days. Signed by Magistrate Judge Julie S. Sneed on 2/6/2018. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NICOLE ANN GARY,
Plaintiff,
v.

Case No: 8:17-cv-2710-T-33JSS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
ORDER
THIS MATTER is before the Court sua sponte. Defendant has failed to answer or
otherwise respond to Plaintiff’s Complaint. However, upon review of Plaintiff’s proof of service
(Dkts. 6–8), it appears that Defendant was not properly served. As explained below, Plaintiff shall
cure her service deficiencies within forty-five days.
To serve the Commissioner of Social Security, “a United States officer or employee sued
only in an official capacity,” “a party must serve the United States and also send a copy of the
summons and of the complaint by registered or certified mail to the agency, corporation, officer,
or employee.” Fed. R. Civ. P. 4(i)(2). To serve the United States, Plaintiff must either “deliver a
copy of the summons and of the complaint to the United States attorney for the district where the
action is brought” or “send a copy of each by registered or certified mail to the civil-process clerk
at the United States attorney’s office,” and “send a copy of each by registered or certified mail to
the Attorney General of the United States at Washington, D.C.” Id. at 4(i)(1)(A)–(B).
To prove service, Plaintiff filed a copy of a certified mail receipt addressed to “Robert E.
O’Neil, Unite[d] States Attorney, 400 North Tampa Street Suite 3200, Tampa, FL 33602.” (Dkt.
6.) This certified mailing was is insufficient to serve the United States attorney for this district

because it was not sent to “the civil-process clerk at the United States attorney’s office” under Rule
4(i)(1)(A)(ii).1
Rule 4(i)(4)(A) requires to the Court to “allow a party a reasonable time to cure its failure
to,” in this instance, serve the United States attorney for this district. Fed. R. Civ. P. 4(i)(4)(A)
(“The court must allow a party a reasonable time to cure its failure to . . . serve a person required
to be served under Rule 4(i)(2), if the party has served either the United States attorney or the
Attorney General of the United States.”). Accordingly, Plaintiff shall cure her deficiency in service
within forty-five (45) days.
DONE and ORDERED in Tampa, Florida, on February 6, 2018.

Copies furnished to:
Counsel of Record

1

The remainder of Plaintiff’s service requirements appear satisfied. Specifically, Plaintiff served the Attorney General
of the United States properly (Dkt. 7), see Fed. R. Civ. P. 4(i)(1)(B), and sent a copy, by certified mail, to the Regional
Office of the Social Security Administration pursuant to Rule 4(i)(2) (Dkt. 8).

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