Hicks v. McHugh

Filing 13

ORDER - IT IS THEREFORE ORDERED that this case is hereby dismissed without prejudice for failure to serve the summons and complaint within the 120 days required by Fed. R. Civ. P.4(m). Signed by District Judge Julie A. Robinson on 10/22/14. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NANCY HICKS,

)
)
)
Plaintiff,
)
)
vs.
)
)
JOHN MCHUGH, SECRETARY
)
OF THE DEPARTMENT OF THE ARMY, )
)
Defendant.
)
)

Case No. 13-4065-JAR-JPO

ORDER
On April 29, 2014, this Court filed an Order (Doc. 10) on Plaintiff Nancy Hick’s
Response to a second Order to Show Cause issued by Magistrate Judge James P. O’Hara in this
matter. The first Order to Show Cause required Plaintiff to show good cause by February 20,
2014, why this case should not be dismissed without prejudice for lack of service under Fed. R.
Civ. P. 4(m). By the deadline, Plaintiff filed her returns of the summons, showing they were
executed,1 and explained that the returns had been inadvertently filed in another case. The Court
found that Plaintiff had sufficiently explained the delay, and that the delay was unintentional and
did not prejudice Defendant.
Judge O’Hara issued a second Order to Show Cause on April 14, 2014, as to why this
case should not be dismissed for failure to prosecute under Fed. R. Civ. P. 41(b). Plaintiff
responded, claiming that Defendant has failed to plead or otherwise defend, despite timely
service. Plaintiff also sought a clerk’s entry of default under Rule 55(a) and asked that a hearing

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Docs. 4, 5.

be set to determine damages.
In its April 29, 2014 Order, the Court explained that it was unable to find that Defendant
was properly served. Fed. R. Civ. P. 4(i) governs service of the United States and its agencies:
(1) United States. To serve the United States, 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
brought—or to an assistant United States attorney or clerical
employee whom the United States attorney designates in a writing
filed with the court clerk—or
(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.
(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 and also send a copy of the
summons and of the complaint by registered or certified mail to the
agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United
States officer or employee sued in an individual capacity for an act
or omission occurring in connection with duties performed on the
United States’ behalf (whether or not the officer or employee is
also sued in an official capacity), a party must serve the United
States and also serve the officer or employee under Rule 4(e), (f),
or (g).
(4) Extending Time. The court must allow a party a reasonable
time to cure its failure to:
(A) 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; or
(B) serve the United States under Rule 4(i)(3), if the party has
served the United States officer or employee.
The Court explained that while the record shows that Plaintiff effected service on the Office of
the Attorney General and on the Secretary of the Army, it does not reflect that a copy of the

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summons and complaint was served on the United States Attorney, as required by Rule
4(i)(1)(A).
Nonetheless, the Court allowed Plaintiff an additional period of thirty days to cure her
failure to serve the United States Attorney’s office in this matter. On May 28, 2014, Alias
Summons were returned executed once again on John McHugh, Secretary of the Army,2 however
there is no indication in the record that Plaintiff served the United States Attorney’s Office for
the District of Kansas, as directed in the Court’s last Order.
Under Rule 4(m), the Court must dismiss the action without prejudice if a defendant is
not served within 120 days after the Complaint is filed. If the Plaintiff shows good cause for the
failure to serve within this time limit, the Court must extend the time for service. This Court has
provided Plaintiff with the appropriate period to cure its service deficiency yet Plaintiff has
failed to do so. Accordingly, the Court dismisses this case without prejudice pursuant to Fed. R.
Civ. P. 4(m).
IT IS THEREFORE ORDERED that this case is hereby dismissed without prejudice
for failure to serve the summons and complaint within the 120 days required by Fed. R. Civ. P.
4(m).
IT IS SO ORDERED.
Dated: October 22, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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Docs. 11, 12.

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