Vargas-Rodriguez v. United States of America Department of Homeland Security et al

Filing 10

OPINION AND ORDER granting 8 MOTION to Quash Service filed by United States Customs and Border Protection, and denying 5 MOTION to Dismiss/Lack of Jurisdiction. Service of Process Deadline due by 3/16/2009.Signed by Judge Salvador E Casellas on 2/27/2009.(THD)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

H E C T O R A. VARGAS-RODRIGUEZ Plaintiff CIVIL NO. 08-1970 (SEC) v. U N IT E D STATES DEPARTMENT OF HOMELAND SECURITY, et al Defendants

O p in io n and Order B e f o re this Court is Co-defendants United States of America, U.S. Customs and Border P r o tection , and Department of Homeland Security's (collectively "Federal Defendants") Motion to Dismiss (Docket # 5), Federal Defendants' Motion to Quash Service (Docket # 8), and P la in tif f 's Response in Opposition (Docket # 9) thereto. After reviewing the filings and the a p p lic a b le law, the Federal Defendants' motion to dismiss will be DENIED, and their Motion to Quash Service shall be GRANTED. Federal Defendants pray that this suit be dismissed for failure to effect proper service on th e Attorney General of the United States, in accordance with FED. R. CIV. P. 4(i). See Docket # 5 at 2. After the motion to dismiss was filed on 11/18/2008, Plaintiff was still within the 120 d a ys permitted by FED. R. CIV. P. 4(m). As such, this Court ordered plaintiff to show proof of se rv ice on the Attorney General by December 5, 2008. Plaintiff partially complied with this o rd e r, filing proof of service on the Department of Justice on December 5, 2009. See Docket # 6 & 6-2. The service was mailed to the Attorney General, and a confirmation receipt from the A tto r n e y General was returned to Plaintiff. However, the service is on its face deficient, because

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08-1970 (SEC) it serves the Department of Justice, and not the Attorney General, as is plainly obvious from a c u rs o ry review of the summons. See Docket ## 6-2 & 8-1. Due to this deficiency, Federal Defendants' moved to quash the service. Moreover, they a ss e rt that the case should be dismissed on grounds of ineffective service for failure to comply w ith FED. R. CIV. P. 4(i). Fed. R. Civ. P. 4(i)(2)(B) requires anyone suing an agency or c o rp o ra tio n of the United States to serve both the United States and the agency in question. The ru le requires that "[s]ervice upon the first should be done pursuant to FED. R. CIV. P. 4(I), which in its relevant part requires that service be effected by: (1) delivering copy of the summons and o f the complaint to the United States Attorney for the district in which the action is brought . . ., and (2) by sending a copy of the summons and of the complaint by registered or certified m a il to the Attorney General of the United States." Solis-Alarcon v. United States, 432 F. Supp. 2 d 236, 245 (D.P.R. 2006). A suit may undoubtedly be dismissed for failure to serve process on the Attorney G e n e ra l. Id.; see also Smith v. Rossotte, 250 F. Supp. 23 1266,1269 (D.Ore. 2007). Therefore, if service is not effected within 120 days, this Court shall dismiss the cause of action, unless g o o d cause is shown. See, e.g., Ruiz Varela v. Sanchez Velez, 814 F.2d 821, 822 (1st Cir. P.R. 1 9 8 7 ); Tracy v. United States, 243 F.R.D. 662, 666 (D. Nev. 2007). However, even belated s e rv ic e on the Attorney General can in certain circumstances cure deficiencies, even the absence o f prior notification. Solis-Alarcon, 432 F. Supp. 2d at 245. Furthermore, failure to serve a c co rd in g to FED. R. CIV. P. 4(I) should not lead to dismissal when: (1 ) the necessary governmental parties have actual notice of the suit; (2) the g o v e r n m e n t has suffered no prejudice from the defect in service; (3) there is a ju s tif ia b le excuse for the failure to make proper service; and (4) the plaintiff w o u ld be severely prejudiced by a dismissal of the complaint.

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08-1970 (SEC) G a rg a n o v. IRS, 207 F.R.D. 22, 23 (D. Mass. 2002)(referencing Wright & Miller, Federal Practice and Procedure: Civil 3d § 1106, 14 n.12.). H e re the defective service of process is against the Attorney General, but there is no d is p u te as per Plaintiff having served the United States Attorney. FED. R. CIV. P. 4(i)(4) directs this Court to grant a party reasonable time to cure failures to serve under FED. R. CIV. P. 4(i)(2) if either the Attorney General or United States Attorney has been properly served.1 Furthermore, b ec au s e the rules for multiple service on the United States of America, and its agencies, are c o m p lic a te d , the Advisory Committee intended for this rule to be interpreted jointly with FED. R . CIV. P. 15(c) "to preclude the loss of substantive rights against the United States or its a g e n cie s, corporations, or officers resulting from a plaintiff's failure to correctly identify and s e rv e all the persons who should be named or served." F e d . R. Civ. P. 15(c)(C) states that an amendment to a pleading relates back when: (C ) the amendment changes the party or the naming of the party against whom a c la im is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period p ro v id e d by Rule 4(m) for serving the summons and complaint, the party to be b ro u g h t in by amendment: (i) received such notice of the action that it will not be prejudiced in d e f en d in g on the merits; and (ii) knew or should have known that the action would have been brought a g a in s t it, but for a mistake concerning the proper party's identity. Likewise, an amendment relates back against the United States if timely process is served upon

20 " U n ite d States attorney or the United States attorney's designee, to the Attorney General of the 21 U n ite d States, or to the officer or agency." FED. R. CIV. P. 15(c)(2). In the present action, 22 23 24 25 26 Moreover, when reviewing the year 2000 amendments to this rule the Notes of Advisory Committee assert that: "An additional change ensures that if the United States or United States attorney is served in an action governed by paragraph 2(A), additional time is to be allowed even though no officer, employee, agency, or corporation of the United States was served."
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08-1970 (SEC) P la in tif f 's failure to properly serve the Attorney General is a technical defect, and does not w a rra n t dismissal. Zankel v. United States, 921 F.2d 432, 436 (2d Cir. 1990). Furthermore, he s e rv e d the United States Attorney and the agency within the period required by law. Therefore, o n c e Plaintiff's defective summons is corrected and properly served upon the Attorney General, it will be held as timely. As such, Defendants' Motion to Quash Service (Docket # 8) is GRANTED, and D e f e n d a n t's Motion to Dismiss is temporarily DENIED. Plaintiff is ORDERED to serve the A tto rn e y General and submit evidence of compliance thereof within 15 days. Failure to comply w ith this ORDER shall result in dismissal. The Clerk of the Court shall issue a summons for serv ice upon the Attorney General in accordance with the terms of this Order.

I T IS SO ORDERED. S a n Juan, Puerto Rico, this 27 th day of February, 2009. S /S a lv a d o r E. Casellas S a lv a d o r E. Casellas U .S . District Judge