Conn et al v. United States of America et al
Filing
27
ORDER denying Plaintiff's 18 Motion to Strike Answer. Signed by District Judge Carlton W. Reeves on 05/27/2011 (WB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
JOHN CONN AND PATRICIA CONN
PLAINTIFFS
V.
CAUSE NO. 3:10-CV-00300-CWR-LRA
UNITED STATES OF AMERICA, ET AL.
DEFENDANTS
ORDER DENYING MOTION TO STRIKE ANSWER
After an atypical schedule of starts, stops, stalls, and wrong turns, the above-styled cause
is before the Court on the Plaintiffs’ Motion to Strike Answer [Docket No. 18]. Having reviewed
the parties’ briefs relevant thereto, all evidence submitted therewith, the parties’ arguments at a
hearing on April 21, 2011, and all available authority controlling the question at hand, the Court
has concluded that the motion should be denied.
On May 21, 2010, John and Patricia Conn (hereinafter collectively “Conn”) filed a
medical malpractice suit [Docket No. 1] against the United States of America.1 Conn served
process on the United States attorney and the Veterans Administration that same day [Docket
No. 3]. However, Conn did not immediately serve the Attorney General – a procedural omission
that set into motion a series of events that ultimately has culminated in the dispute at hand.
Sixty days came and went, and without having heard a word of response from the United
States, Conn moved for an entry of default on July 23, 2010 [Docket No. 6]. The clerk entered
the same on July 26, 2010 [Docket No. 7], and Conn immediately moved for a default judgment
1
The Complaint originally named the Defendant as “United States of America, Veterans
Administration d/b/a G.V. (Sonny) Montgomery VA Medical Center.” In the fullness of time,
the Plaintiffs ultimately agreed that the Complaint simply should have named the United States
of America as the Defendant. See Agreed Order [Docket No. 13]. However, this
mischaracterization is not an issue relevant to the question now before the Court.
1
[Docket No. 8]. On July 29, 2010, with still no response forthcoming from the United States, the
Court entered a default judgment in Conn’s favor [Docket No. 9].
The next day, undoubtedly awakened by this undefended turn of events, the United States
stirred and filed a Motion to Set Aside Default Judgment and Clerk’s Entry of Default [Docket
No. 10]. Specifically, the United States argued that because Conn had not sent a copy of the
complaint and summons to the Attorney General, as is required by Rule 4(i)(1)(B) of the Federal
Rules of Civil Procedure, service of process had never been perfected and, therefore, that the
default judgment was void as a matter of law. Defendant’s Memorandum in Support [Docket No.
11] at 2.
Conn did not respond to the United States’ motion, and for a time, neither did the district
court. But the record demonstrates that the parties did not lie altogether dormant. According to
an apparent series of e-mails between the two parties’ attorneys, Conn and the United States
collaborated on an agreed order during August 2010 to set aside the default judgment on the
condition that the United States answer Conn’s Complaint on or before October 1, 2010.2 See
Exhibit A to Motion to Strike Answer [Docket No. 18-1].
That agreed order, according to the e-mails, met with both parties’ approvals, and the
United States avers that it e-mailed the document to the district judge’s chambers on August 11,
2010. See Exhibit 1 to Defendant’s Response [Docket No. 19-1].
Notwithstanding the agreement, October 1 came and went without the United States’
response to the suit. Not until October 8, 2010, did the United States file its Answer [Docket No.
2
In pertinent part, the Agreed Order read, “The Defendant agrees to file an answer on or
before October 1, 2010.” Agreed Order [Docket No. 13] at 1.
2
12], but that was not to be the case’s only filing of unexpected timing. On October 21, 2010, the
district court entered the Agreed Order [Docket No. 13] in which, many weeks earlier, the parties
had agreed to set October 1 as the United States’ deadline to answer.3
Conn moved the Court to strike that Answer on December 9, 2010 [Docket No. 18].
According to Conn, Rule 6(b) of the Federal Rules of Civil Procedure forbade the United States
to file its Answer out of time without the Court’s permission, for which the United States never
asked. In response, the United States argues that Conn’s failure to serve the Attorney General
pursuant to Rule 4(i)(1)(B) of the Federal Rules of Civil Procedure divested the district court of
jurisdiction at the time of the default judgment. Def. Resp. at 1. The United States claims that
Conn waited until August 10, 2010, to serve the Attorney General. See Exhibit 3 to Def. Resp.
[Docket No. 19-3]. Therefore, in the view of the United States, its 60-day window in which to
answer began running on August 10 and ended on October 8 – the date on which it filed its
Answer.
Although the set of facts presented – a delayed but ultimately successful service on the
Attorney General, many weeks after service on the United States – is uncommon, the legal
question presented carries a tone that demands the Court’s caution because “even a properly
made motion to strike is a drastic remedy which is disfavored by the courts and infrequently
granted.” Int’l Longshoremen’s Assoc., S.S. Clerks Local 1624, AFL-CIO v. Virginia Int’l
Terminals, Inc., 904 F. Supp. 500, 504 (E.D. Va. 1995). But “[i]f the court determines the
defenses to be insufficient as a matter of law, immaterial, or impertinent the granting of a motion
3
Given the Order’s establishment of a deadline long since past, the presumption must be
indulged that the district court issued its command with nunc pro tunc effect. See, e.g., Fowler v.
Equitable Trust Co., 141 U.S. 384, 393-94 (1891).
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to strike is appropriate.” F.D.I.C. v. Butcher, 660 F. Supp. 1274, 1277 (E.D. Tenn. 1987)
(granting motion to strike). See also Directv, Inc. v. Young, 195 Fed. Appx. 212, 215 (5th Cir.
2006) (affirming a district court’s decision to strike an untimely answer under Rule 12); De
Vargas v. Brownell, 251 F.2d 869, 871 (5th Cir. 1958); Anchor Hocking Corp. v. Jacksonville
Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976) (“[M]otions to strike . . . are granted only
where clearly warranted.”) (granting motion to strike).
“When an act may or must be done within a specified time, the court may, for good
cause, extend the time . . . .” Fed. R. Civ. P. 6(b)(1). However, in this case, the United States
clearly never asked for any extension of time beyond October 1, 2010, in which to answer
Conn’s Complaint, although its Answer did not emerge until October 8, 2010. Therefore, in
order for that filing to have been timely, the United States must be correct in its argument that its
60-day responsive period did not begin until Conn sent copies of his complaint and summons to
the Attorney General in August 2010.
When a plaintiff sues the United States, service of process must comply with Rule 4(i) of
the Federal Rules of Civil Procedure, which states in relevant part:
(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.
(1) United States
To serve the United States, a part 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 designated 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.[ ]
4
Service upon the United States is not complete until the plaintiff complies with the
requirements relevant to both the United States attorney and the Attorney General. Flory v.
United States, 79 F.3d 24, 26 (5th Cir. 1996); Peters v. United States, 9 F.3d 344, 345 (5th Cir.
1993). Moreover, it is fundamental to the American system of civil procedure that “the duty to
answer only arises after service has been perfected.” Jenkens & Gilchrist v. Groia & Co., 542
F.3d 114, 123 n.6 (5th Cir. 2008). Therefore, logic alone would lead to the conclusion that the
United States’ responsive period cannot begin until both the United States attorney and the
Attorney General have received copies of the summons and complaint.
But “[t]he life of the law has not been logic,” O.W. Holmes, The Common Law 1 (1881),
and as the case at bar demonstrates, neither is it always the lifeblood of the Federal Rules of
Civil Procedure. Although service upon the Attorney General logically seems a prerequisite to
the United States’ duty to answer, Rule 12(a)(2) unmistakably requires the United States to
“serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the
United States attorney.” The rule makes no mention at all of the plaintiff’s duty to serve the
Attorney General.
That is not to say, of course, that a plaintiff’s failure to serve the Attorney General will
go without consequence. Typically, the omission comes before a court when the plaintiff forgets
to serve the Attorney General altogether and thereby fails to perfect service of process within
120 days of the filing of the complaint. See Fed. R. Civ. P. 4(m). In such instances, the typical
penalty is dismissal of the action without prejudice. See, e.g., Flory, 79 F.3d at 25; George v.
U.S. Dept. of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986). But Conn’s tardiness in serving the
Attorney General does not rise to such a level. According to the United States, the Attorney
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General received copies of Conn’s Complaint and summons on August 10, 2010. Exhibit 3 to
Response to Motion to Strike [Docket No. 19-3]. This demonstrates that Conn completed service
of process on the United States well within 120 days of initiating his suit on May 21, 2010.
But service on the Attorney General is relevant only to the question of whether Rule 4(m)
stands violated; the duty in no way affects the timetable facing the United States, which must
“serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the
United States attorney.” Fed. R. Civ. P. 12(a)(2).
A review of authority demonstrates that this incongruity’s appearances in the nation’s
courts are rare. One of the earliest and most insightful meditations on the matter emerged in
1956, when the Second Circuit called attention to the fact that Rule 4 uses different words to
describe the prescribed manners of service on the United States attorney and the Attorney
General. Specifically, Rule 4(a)(1)(A)(i) requires that a plaintiff seeking to serve the United
States deliver a copy of the summons and complaint to the United States attorney; in contrast,
Rule 4(a)(1)(B) demands merely that a plaintiff send copies of the documents by registered or
certified mail to the Attorney General. Regarding the linguistic distinction, the learned Judge
Medina opined:
Since the delivery and the mailing required by [Rule 4] will normally be
accomplished on different days, the selection of the date of delivery as the date fixing
the time to answer imported not that mailing also was not mandatory but only that
of the two dates, which normally would be separated only by a day or two, the date
of delivery was considered a more appropriate measuring post – perhaps because the
bilateral transaction involved in a delivery was a more reliable than a wholly
unilateral act such as mailing.
Messenger v. United States, 231 F.2d 328, 330 (2nd Cir. 1956) (superseded on other grounds by
Rule as stated in Frasca v. United States, 921 F.2d 450, 452 (2nd Cir. 1990)).
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The Messenger Court’s reasoning continued to carry the day nearly a half-century later in
the Northern District of Illinois, when a district judge agreed with a plaintiff that the United
States’ 60-day responsive period began running at the time of service upon the United States
attorney, notwithstanding a delay in service on the Attorney General.
Although [Rule 4] does require Plaintiff to give notice to the U.S. Attorney General,
pursuant to [Rule 12], Defendants’ time to respond was not dependent upon notice
to the Attorney General, but depended on the Plaintiff obtaining service on the U.S.
Attorney. Therefore, . . . Defendants were in default after Plaintiff’s [delayed] notice
to the U.S. Attorney General.
Macri v. Yamauchi, 2002 WL 390223, *2 (N.D. Ill. 2002).
Likewise, this Court is compelled to hold that, so long as a violation of Rule 4(m) does
not result therefrom, a delay in service on the United States attorney and the Attorney General
does not alter the deadline for the filing of the United States’ answer, which is due within 60
days after delivery of a copy of the summons and of the complaint to the United States attorney.
In the case at bar, the summons returned executed against U.S. Attorney Don Burkhalter
on May 21, 2010. The United States’ Answer, therefore, was due no later than July 20, 2010.
Thereafter, by virtue of the parties’ agreement, the district court extended the United States’
deadline to October 1, 2010, but the Answer still did not emerge until October 8, 2010. That
filing was untimely.
The peculiarity of this holding is not lost on the Court. The core purpose of service of
process is “to supply notice of the pendency of a legal action, in a manner and at a time that
affords the defendant a fair opportunity to answer the complaint and present defenses and
objections.” Henderson v. United States, 517 U.S. 654, 672 (1996). It might seem incongruent, at
the very least, that the Rules of Civil Procedure could require the United States to answer even
7
before service thereon has been perfected. However, because the United States attorney has the
responsibility to represent the United States and its government agencies and officials, service
upon her provides the government a fair opportunity to answer and provide any defenses – even
the claim of insufficiency of service of process for having failed to serve the Attorney General.
This notwithstanding, under circumstances like those comprising the case at bar, Rule 12(a)(2)
plainly requires just that.4
Rule 12(f) of the Federal Rules of Civil Procedure provides that “[t]he court may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Notwithstanding the clear untimeliness of the United States’ answer, this Court is
compelled to decline to exercise its authority under Rule 12(f) for two reasons.
First, when a party argues for the striking of a pleading, Rule 12(f)(2) requires that the
motion be filed “either before responding to the pleading or, if a response is not allowed, within
21 days after being served with the pleading.” Because the Rules provide for no response to an
answer, Conn should have moved to strike the United States’ Answer on or before October 29,
2010. Instead, Conn delayed until December 9, 2010.
Second, motions to strike pleadings generally should not be granted absent a showing of
prejudice to the moving party. Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306
F.2d 862, 868 (5th Cir. 1962); Mullins v. Chevron Oil Co., 344 F. Supp. 1063, 1067 (E.D. La.
1972). Conn has not argued convincingly that the United States’ delay has resulted in prejudice
to his ability to try his case. Conn contends that the United States has cost him more than nine
4
“Failure to read a rule is the antithesis of good cause. Ignorance may be an explanation
but it is not an excuse.” Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996) (Easterbrook, J.).
8
months, but in truth, the delay only cost him a week’s time – that is, the lapse between October
1, 2010, when the parties agreed that the United States would answer, and October 8, when it
actually did. And more than six months of that period of time – namely, from the moment on
which Conn filed his Motion to Strike on December 9, 2010, until the present day – has been
spent solely addressing the question of whether the United States should be permitted to answer.5
More importantly, no suggestion has been made by either party that the delay has resulted in lost
evidence that would deprive the Court of an opportunity to hold a meaningful trial.
This lack of prejudice does not absolve the United States of its clear failure to comport
with the dictates of Rule 12(a)(2), but it does compel the Court to bring this case back onto a
more commonly trodden path with the hope that both parties will refocus their energies toward
abiding by the Rules of Civil Procedure and ushering this case forward.
Toward that end, the Plaintiffs’ Motion to Strike Answer [Docket No. 18] is denied.
SO ORDERED this Twenty-Seventh day of May 2011.
/s/ Carlton W. Reeves
Hon. Carlton W. Reeves
United States District Court Judge
5
The Court does not make this point with the intention of belittling the importance of the
issue at hand but rather to illustrate the fact that not every hour that has passed since October 8
can be attributed to the United States’ dilatoriness.
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