Ocasio-Lozada et al v. USA et al

Filing 19

ORDER DENYING 6 MOTION to dismiss For Failure to Serve as to Luis S. Fraticelli, USA filed by Luis S. Fraticelli, USA. Service of Process Deadline due by 11/12/2009. Signed by Chief Judge Jose A Fuste on 11/2/09.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO RAFAEL OCASIO-LOZADA, et al., Plaintiffs, Civil No. 09-1192 (JAF) v. UNITED STATES OF AMERICA, et al., Defendants.

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ORDER On July 22, 2009, Defendants United States of America and Luis S. Fraticelli moved to dismiss Plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. (Docket No. 6.) 2009 (Docket No. 7); Plaintiffs opposed the motion on August 7, government and Fraticelli replied on

the

August 18, 2009 (Docket No. 14); and Plaintiffs sur-replied on August 25, 2009 (Docket No. 16). As Fraticelli now concedes that he

was properly served with process on May 28, 2009 (Docket No. 14), the sole issue before us is the sufficiency of service on the government. Federal Rule of Civil Procedure 4(m) requires service of process "within 120 days after the complaint is filed." Unless the plaintiff shows good cause for failing to meet the deadline, we may choose between dismissal without prejudice and an allowance for service within a specified time. Fed. R. Civ. P. 4(m). In a case against

the government, Rule 4(i)(1)(A) requires the plaintiff to serve the summons and complaint to the United States attorney for the federal

Civil No. 09-1192 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 district where the case is brought.

-2The plaintiff may also deliver

service to "an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk." Fed. R. Civ. P. 4(i)(1)(A)(i).

The government argues that Plaintiffs have, without good cause, failed to serve the United States attorney for this district.

(Docket Nos. 6, 14.)

Plaintiffs contend that their server, Melissa

Vélez, attempted service on the United States attorney by delivering it to the office for the Federal Bureau of Investigations ("FBI") in Puerto Rico. (Docket Nos. 7; 10; 16.) Vélez states that she visited

the FBI office on May 22, 2009, and was informed that Fraticelli was absent. (Docket No. 10-2.) Vélez then asked whether anyone was present to receive the summons issued to the government, and Milton Ramos, a paralegal, emerged. (Id.) Ramos read the documents,

confirmed that he was authorized to receive service, and signed an acknowledgment. (Id.)

At the threshold, Ramos is neither an assistant United States attorney nor a clerk expressly authorized to receive service of process. See Fed. R. Civ. P. 4(i)(1)(A)(i). Even if established,

Ramos' apparent authority to receive process would be insufficient. See Fed. R. Civ. P. 4(i)(1)(A); see also Blair v. City of Worcester, 522 F.3d 105, 113 (1st Cir. 2008) (citing cases requiring actual authority to receive service of process). Furthermore, any reasonable person should have been aware that the FBI office is distinct from

Civil No. 09-1192 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 that of the United States attorney. Plaintiffs have submitted no proof

-3Other than Vélez' affidavit, of service on Ramos. We,

therefore, lack any basis to assess whether Ramos had implied actual authority to receive summons for the United States attorney.

Accordingly, Plaintiffs have not shown good cause for their error. See Fed. R. Civ. P. 4(m). However, we find no reason to dismiss without prejudice because Plaintiffs will likely re-file their complaint. Meanwhile, eight months have passed since Plaintiffs commenced this case on

February 27, 2009 (Docket No. 1), and they have not attempted to cure their error. As Plaintiffs have wasted judicial resources, we will

truncate the discovery process accordingly. In view of the foregoing, we hereby DENY the government and Fraticelli's motion to dismiss (Docket No. 6). We ORDER Plaintiffs

to properly serve process on the United States pursuant to Federal Rule of Civil Procedure 4(i)(1) on or before November 12, 2009. IT IS SO ORDERED. San Juan, Puerto Rico, this 2nd day of November, 2009. s/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge