Williams v. Shinseki et al

Filing 16

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered on 10 MOTION to Dismiss for Failure to Effect Proper Service filed by Sebastian Ugochukwu, Tammy Follensbee, Eric Shinseki. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MIKEL WILLIAMS,

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Plaintiff,
v.
ERIC SHINSEKI, Secretary of Veterans
Affairs, TAMMY FOLLENSBEE, and
FATHER SEBASTIAN UGOCHUKWU,
Defendants.

Civil Action No.
11-40030-FDS

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MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
SAYLOR, J.
Plaintiff Mikel Williams, proceeding pro se, filed a complaint in this Court on February 9,
2011, alleging violations of federal employment discrimination laws. The Court granted his
motion to proceed in forma pauperis, and the United States Marshals Service served process on
Defendants Eric Shinseki and Sebastian Ugochukwu on May 23 and June 24, respectively.
Defendant Tammy Follensbee was never served. The three defendants now move to dismiss the
action for failure to serve (1) Follensbee, (2) the United States Attorney for this District, and (3)
the Attorney General of the United States.
I.

Defendant Follensbee
Pursuant to Fed. R. Civ. P. 4(c)(1), “[t]he plaintiff is responsible for having the summons

and complaint served within the time allowed by Rule 4(m).” Rule 4(m) requires service within
120 days after the complaint is filed. If a plaintiff fails to serve a defendant in time, “the

court . . . must dismiss the action without prejudice against that defendant or order that service be
made within a specified time.” Fed. R. Civ. P. 4(m). However, “if the plaintiff shows good cause
for the failure, the court must extend the time for service for an appropriate period.” Id.
The complaint in this action was filed on February 9, 2011, and thus more than 120 days
have passed without service on Follensbee. Executing service on a defendant can be a difficult
task for a party proceeding pro se, but it is nonetheless necessary to maintain suit against them.
Pursuant to Fed. R. Civ. P. 4(m), the Court will therefore order the claims against Follensbee
dismissed unless, within 30 days, plaintiff either (1) serves Follensbee or (2) shows good cause
why the time for service should be extended.
II.

Service on the United States
Service on the United States is required when a party sues an officer or employee of the

United States, either in an official capacity or in an individual capacity for an act or omission
occurring in connection with duties performed on behalf of the United States. Fed. R. Civ. P.
4(i)(2)-(3). To serve the United States, a party must (1) “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 (2) “send a copy of each by registered or certified mail to the Attorney
General of the United States at Washington, D.C.” Fed. R. Civ. P. 4(i)(1).
The court must allow a party reasonable time to cure its failure to serve the United States
if the party has served the officer or employee and is suing the person in his or her individual
capacity. Id. 4(i)(4)(B). Even if the party sues the officer or employee in his or her official
capacity, the court may specify an extended period for service. Id. 4(m). The court will therefore
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order dismissal of the complaint unless, within 30 days, plaintiff either serves the United States
Attorney for the District of Massachusetts and the United States Attorney General or (2) shows
good cause why the time for service should be extended.
ORDER
For the foregoing reasons,
1.

The claims against Tammy Follensbee will be dismissed thirty days from the date
of this order unless plaintiff either (1) serves Follensbee or (2) shows good cause
why the time for service should be extended; and

2.

The claims against all defendants will be dismissed thirty days from the date of this
order unless plaintiff either (1) serves the United States by delivering a copy of the
summons and complaint by registered or certified mail to the United States
Attorney for the District of Massachusetts and to the United States Attorney
General, or (2) shows good cause why the time for service should be extended.

So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: October 14, 2011

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