Abreu Rodriguez et al v. Federal Emergency Management Agency (FEMA) et al

Filing 12

ORDER denying 10 Motion to Dismiss. Signed by Chief Judge Jose A Fuste on 4/6/2010. (mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO C E C IL IA ABREU-RODRÍGUEZ, et al., P la in tif f s , v. F E D E R A L EMERGENCY MANAGEMENT A G E N C Y and CRAIG FUGATE, D e f e n d a n ts . C i v il No. 09-1951 (JAF)

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ORDER O n January 28, 2010, Defendants moved to dismiss Plaintiffs' complaint under Federal R u l e of Civil Procedure 12(b)(5) for insufficient service of process. (Docket No. 10.) Plaintiffs o p p o se d the motion on February 2, 2010. (Docket No. 11.) F ed era l Rule of Civil Procedure 4(m) requires service of process "within 120 days after th e complaint is filed." Unless the plaintiff shows good cause for failing to meet the deadline, w e may choose between dismissal without prejudice and an allowance for service within a s p e c if ied time. Fed. R. Civ. P. 4(m). In a case against the government, Rule 4(i)(1)(A)(i) re q u ire s the plaintiff to serve the summons and complaint to the U.S. attorney for the federal d is tric t where the case is brought. The plaintiff may also "send a copy of [the summons and c o m p l a in t ] by registered or certified mail to the civil-process clerk at the United States a tto rn e y's office." Fed. R. Civ. P. 4(i)(1)(A)(ii). The plaintiff must also "send a copy of [the

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s u m m o n s and complaint] by registered or certified mail to the Attorney General of the United S ta te s at Washington, D.C." Fed. R. Civ. P. 4(i)(1)(B). T h e government argues that Plaintiffs have, without good cause, failed to properly serve th e U.S. Attorney for this district and the Attorney General of the United States within 120 days o f filing their complaint. (Docket No. 10.) In response, Plaintiffs admit this failure, but submit ev iden ce that they have remedied this defect by tendering process to the U.S. Attorney for P u erto Rico and the Attorney General by certified mail. (Docket No. 11.) W e find no reason to dismiss this case. Although Plaintiffs previously failed to conform to the requirements of Rule 4(m) without good cause, we had the discretion to permit them a d d itio n a l time to tender service of process. See Fed. R. Civ. P. 4(m). While Plaintiffs e r ro n e o u s ly sent the copy of their summons and complaint to the United States Attorney for this d i str ic t rather than the "civil-process clerk" at her office, see Fed. R. Civ. P. 4(i)(1)(A)(ii), this d e v ia tio n is venial. Furthermore, Defendants do not argue that this delay has caused them p re ju d ic e . We, therefore, accept Plaintiffs' attempts to rectify their error. A c c o rd in g ly, we hereby DENY Defendants' motion to dismiss (Docket No. 10), and e x p e c t the Defendants to file a responsive pleading forthwith. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 6 th day of April, 2010. s /J o s é Antonio Fusté J O S E ANTONIO FUSTE C h ie f U.S. District Judge