Van Hyning v. United States Department of Veterans Affairs, The
Filing
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MEMORANDUM AND ORDER granting 21 Motion to Dismiss. IT IS FURTHER ORDERED that this action is hereby dismissed without prejudice for failure to serve the defendants within 120 days. Signed by District Judge Richard D. Rogers on 10/2/2013.Mailed to pro se party Robert Van Hyning by regular mail (daw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT M. VAN HYNING,
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Plaintiff,
v.
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS,
Defendant.
Case No. 12-4129-RDR
MEMORANDUM AND ORDER
This matter is presently before the court upon the motion of
defendants United States Department of Veterans Affairs and the
Veterans Affairs Medical Center to dismiss for insufficient service
of process pursuant to Fed.R.Civ.P. 12(b)(5). In addition, the court
has in the past ordered plaintiff to show cause why this case should
not be dismissed pursuant to Fed.R.Civ.P. 4(m) for his failure to
serve the defendants within 120 days after filing the case.
Plaintiff has failed to respond to this order. The court is now
prepared to rule on these matters.
I.
Some review of the history of this case is necessary to
understand the present circumstances. Plaintiff, proceeding pro se,
filed a complaint on October 1, 2012. He named the following
defendants: Secretary of the Department of Veterans Affairs, five
individual defendants, and unnamed administrators at the Veterans
Affairs Medical Center in Topeka. He asserted claims under the
Federal Tort Claims Act. He initially sought leave to proceed in forma
pauperis and appointment of counsel.
After his request to proceed
in forma pauperis was denied, he paid the requisite filing fee.
On February 12, 2013, Magistrate Sebelius ordered plaintiff to
show cause why this case should not be dismissed without prejudice
pursuant to Fed.R.Civ.P. 4(m).
Magistrate Sebelius noted that
plaintiff had failed to make service upon any of the defendants within
120 days. On February 15, 2013, Ira Dennis Hawver entered an
appearance on behalf of plaintiff.
the complaint.
He also filed a motion to amend
This motion was granted by Magistrate Sebelius on
February 19, 2013.
The amended complaint listed only one defendant:
the United States Department of Veterans Affairs.
Given the recent
activity by the plaintiff, the court did not dismiss plaintiff=s case
even though service had yet to be effected.
The docket sheet reflects that nothing occurred from March to
August, 2013. On August 12, 2013, the court again directed plaintiff
to show cause why this case should not be dismissed without prejudice
pursuant to Rule 4(m). On August 19, 2013, plaintiff=s counsel filed
a document indicating that summons had been issued by the clerk of
the court on February 20, 2013 to the United States Department of
Veterans Affairs in Washington, D.C., and returned as served by
certified mail on March 22, 2013. Plaintiff=s counsel offered no
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further explanation in response to the court=s order to show cause.
On August 29, 2013, plaintiff filed a pro se motion to terminate
his counsel. On September 6, 2013, defendant United States Department
of Veterans Affairs filed the instant motion to dismiss. The court
granted plaintiff=s motion on September 18, 2013, and terminated Mr.
Hawver=s representation. The court informed plaintiff in that order
that he would be responsible for responding to all pending matters.
The time period for responding to the defendant=s motion has passed,
and the court has heard nothing from the plaintiff.
II.
In its motion, the Department of Veterans Affairs contends that
plaintiff has not properly effected service upon it.
It points out
that plaintiff has not complied with Fed.R.Civ.P. 4(i) because no
summons has been served on the United States Attorney General or the
United States Attorney=s Office in this district.
A federal court lacks personal jurisdiction over a defendant
if service of process is insufficient under Rule 4.
See Nicks v.
Brewer, 2010 WL 4868172 at * 4 (D.Kan. Nov. 23, 2010). The plaintiff
has the burden of showing by a preponderance of the evidence that
jurisdiction is proper.
United States ex rel. Stone v. Rockwell Int=l
Corp., 282 F.3d 787, 797 (10th Cir. 2002).
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Fed.R.Civ.P. 4(i)(1) governs service of process on the United
States and its agencies.
To serve the United States or its agencies,
a party must:
(A)(i) deliver a copy of the summons and of the complaint
to the United States attorney for the district where the
action is broughtCor to an assistant United States
attorney or clerical employee whom the United States
attorney designates in a writing filed with the court
clerkCor
(ii) send a copy of each by registered or certified mail
To the civil-process clerk at the United States attorney's
office;
(B) send a copy of each by registered or certified mail to
the Attorney General of the United States at Washington,
D.C.;and
(C) if the action challenges an order of a nonparty agency
or officer of the United States, send a copy of each by
registered or certified mail to the agency or officer.
Fed.R.Civ.P. 4(i)(1)(A)-(C).
Counsel for the defendant points out that the record reflects
that plaintiff has served only the Department of Veterans Affairs.
There is no record that he ever served either the United States
Attorney General or the United States Attorney=s Office for this
district.
The court is reluctant to dismiss a case on this basis, but the
present state of record requires such an action.
For most of this
case, plaintiff has been represented by counsel and he has taken no
steps to complete the required service of process.
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Moreover,
plaintiff who is now proceeding pro se has had an opportunity to
respond to the instant motion and has failed to do so.
This case
has been pending for over a year, and the amended complaint has been
on file for over seven months.
During that period, plaintiff has
taken no action to properly serve the defendant.
Accordingly, the
court shall grant defendant=s motion and dismiss this case for
insufficient service of process.
III.
The court shall also dismiss this case pursuant to Rule 4(m).
Rule 4(m) provides as follows:
Time Limit for Service. If a defendant is not served within
120 days after the complaint is filed, the courtCon motion
or on its own after notice to the plaintiffCmust dismiss
the action without prejudice against that defendant or
order that service be made within a specified time. But
if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate
period. This subdivision (m) does not apply to service in
a foreign country under Rule 4(f) or 4(j)(1).
Fed.R.Civ.P. 4(m).
The court notes plaintiff has never responded to the court=s
order to show cause why this action should not be dismissed pursuant
to Rule 4(m).
Plaintiff has made no showing of good cause for his
failure to timely effect service on the defendant.
Thus, the court
believes that dismissal without prejudice is required.
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IT IS THEREFORE ORDERED that defendant=s motion to dismiss (Doc.
# 21) be hereby granted.
The court shall dismiss plaintiff=s amended
complaint without prejudice pursuant to Fed.R.Civ.P. 12(b)(5) for
insufficient service of process.
IT IS FURTHER ORDERED that this action be hereby dismissed
without prejudice pursuant to Fed.R.Civ.P. 4(m) for plaintiff=s
failure to serve the defendant within 120 days of the date of the
filing of the amended complaint.
IT IS SO ORDERED.
Dated this 2nd day of October, 2013, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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