Patel et al v. Wolf et al

Filing 5

ORDER denying 4 Plaintiffs' Motion for Default Judgment. Plfs' time for showing proper service on dfts is EXTENDED to 28 days from the date of this order. Absent proper service appearing of record by that da te, or a showing of cause as to any reason why this action should not then be dismissed or a reason for another permissive extension of the time for service, this action will then be dismissed, w/o prejudice, for failure to effect timely service. Signed by Honorable Stephen P. Friot on 2/17/2021. (llg)

Case 5:20-cv-01099-F Document 5 Filed 02/17/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RITABEN PATEL and
VIPULKUMAR PATEL,
Plaintiffs,
-vsDEPARTMENT OF HOMELAND
SECURITY, CHAD F. WOLF,
Secretary; UNITED STATES
CITIZENSHIP AND
IMMIGRATION SERVICES,
KENNETH T. CUCCINELLI,
Director; and UNITED STATES
CITIZENSHIP AND
IMMIGRATION SERVICES,
BRUCE PAULIN, Field Office
Director, Oklahoma City, OK,
Defendants.

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Case No. CIV-20-1099-F

ORDER
This mandamus action asks the court to compel the United States Citizenship
and Immigration Services and its officials to accept, and to adjudicate in plaintiffs’
favor, plaintiffs’ I-485 Application to Adjust Status. Doc. no. 1. Defendants are
identified in the body of the complaint as Acting Secretary of Homeland Security
Chad F. Wolf; as Acting Director of the United States Citizenship and Immigration
Services Kenneth T. Cuccinelli; and as Field Office Director of the United States
Citizenship and Immigration Services, Oklahoma City, Oklahoma, Bruce Paulin. Id.
at ¶¶ 6-7. Although the complaint does not state that the defendants are named in
their official capacities only, the nature of the allegations indicate that is the case,

Case 5:20-cv-01099-F Document 5 Filed 02/17/21 Page 2 of 4

and the complaint is so construed. At least two of the defendants are no longer
serving in the offices identified in the complaint.1 However, Rule 25(d), Fed. R.
Civ. P., provides that when a public officer named in an official capacity resigns or
otherwise ceases to hold office while the action is pending, the officer’s successor is
automatically substituted as a party. Accordingly, the fact that new officers are now
serving in these capacities does not impact the viability of this action.
The complaint was filed on October 29, 2020. After ninety days, the record
did not reflect service on any defendant. Therefore, on January 29, 2021, the court
ordered plaintiffs to show cause, within fourteen days of the date of that order, as to
any reason why this action should not be dismissed for failure to effect service within
the time limit provided by Rule 4(m), Fed. R. Civ. P. Doc. no. 3. The order advised
plaintiffs that absent a sufficient and timely showing of such cause, and absent any
reason for permissive extension of the time for service, this action would be
dismissed without prejudice under Rule 4(m).
On February 10, 2021 (which is within the fourteen-day period to show
cause), plaintiffs filed a “Motion for Default Judgment Or in the Alternative Motion
for Aid of the Court to Service Defendants.” Doc. no. 4. The motion describes
various attempts to serve the defendants at what the motion describes as their service
addresses in Washington, D.C., including evidence intended to show that service
was made by certified mailings to the defendants on November 24, 2020.2 Although
plaintiffs have submitted tracking documents intended to show that the mailings

1

The current Secretary of Homeland Security is Alejandro Mayorkas. Tracy Renaud is currently
identified on the USCIS website as the Senior Official Performing the Duties of the Director.

2

The process server’s affidavits (doc. no. 4, pp. 8, 18 and 23 of 26, ecf page numbers) indicate that
certified mailings were sent to defendants on November 25, 2020. However, the records showing
what was mailed and to whom (id. at p. 10 of 26), indicate these mailings occurred on
November 24, 2020.

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Case 5:20-cv-01099-F Document 5 Filed 02/17/21 Page 3 of 4

were received, plaintiffs state that none of the recipients have signed and mailed
back any certified mail receipts.
Because the defendants are officers sued in their official capacities, service is
governed by Rule 4(i)(2), Fed. R. Civ. P. As provided there:
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.
Thus, a party serving officers in their official capacities only must not only
“send a copy of the summons and of the complaint by registered or certified mail to
the agency…or officer,” that party must also “serve the United States.” The
requirements for serving the United States are found in Rule 4(i)(1). As provided
there:
(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.
Plaintiff’s motion for default judgment does not address the requirement for
service on the United States as set out above, nor does anything in the record show

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Case 5:20-cv-01099-F Document 5 Filed 02/17/21 Page 4 of 4

compliance with that service requirement. For that reason, the motion for default
judgment is DENIED. Doc. no. 4.
For the same reason, plaintiffs’ arguments and evidence included in their
motion for default judgment do not provide a sufficient reason to avoid dismissal of
this action for failure to timely serve the defendants. Plaintiffs, however, will be
given additional time to either show proper service or show good cause as to why
this action should not be dismissed.
Plaintiffs’ time for showing proper service on the defendants is hereby
EXTENDED to twenty-eight days from the date of this order. Absent proper service
appearing of record by that date, or a showing of cause as to any reason why this
action should not then be dismissed or a reason for another permissive extension of
the time for service, this action will then be dismissed, without prejudice, for failure
to effect timely service.
IT IS SO ORDERED this 17th day of February, 2021.

20-1099p002.docx

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