Draper v. United States Postal Service

Filing 31

MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 5/31/2018. (ssm)

CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
FlUiD

MAY 3'11018
IN THE UNITED STATES DISTRICT COlJRT
FOR THE V.1ESTERN DISTRICT OF VIRGINIA
CHARLOITESVILLE DIVISION

U1YCLERK

CEDRJCK DRAPER.
Civil Action No. 3: 18CV00009

Plaintiff.
V.

MEMORANDlJM OPINION

UNITED STATES POSTAL SERVICE.

By: 1-lon. Glen E. Conrad
Senior United States District Judge

Defendant.

Cedrick Draper. proceeding

nm

se. filed this action against the United States Postal

Service (Postal Service) in the General District Court for the City of Charlottesville. The Postal
Service removed the case to this court on February 12, 2018. By letter dated March 9, 201 8. an
Assistant United States Attorney (AUSA) advised the plaintiff that it appeared that service had
not been properly effected in accordance with the Federal Rules of Civil Procedure. The AUSA
recommended that the plaintiff consult Federal Rule of Civil Procedure 4(i), which sets forth the
requirements for serving the United States and its agencies, corporations, officers, or employees.
The AU SA also supplied the names of employees designated to accept service of process on
behalf of the United States Attorney for the Western District of Virginia.
The plaintiff responded by letter dated March 15, 2018.

:eM

~ULIAnO
D0()

BY: -·

ln his letter, the plaintiff

acknowledged that the Postal Service had not been properly served with process, and he
.. apologize[d]" for the .. error.'' Docket No. 9. Nonetheless, the plaintiff filed a motion for
summary judgment against the Postal Service that same day.
By order entered May 10, 2018, the court denied the motion for summary judgment, and
directed Draper to serve the Postal Service and provide proof of service to the court by May 28,

2018. 1 On Mo~ 16. 2018. after recci,·ing a rc::ponSl' from Drnpt.'r, the c. .~urt i:>SliCd

allOt her

llt)tkt•

advising Draper that he had not provided proof tlf scrYicc in nccordnncc with Ruk •\( i ). nnd thnt
the case would be dismissed without' prejudice if he Jid no! comply \\ith the court's previous
order.
The ex1ended deadline for dTccting ser\'ice has

pns~cd,

nnd

Drnp~r

hf!s failed to establish

that the Postal Sen·ice was properly ser\'cd with process. By stntute. the Postal

Scr\'ic~

must be

sen·ed ··in the same way one would sen·e the United Stutes under the Fedeml Rules." Dpugloss
v. United States Postal Sen' .. No.3: 17-cv-00250, :?017 U.S. Dist. LEX IS 77011.

n1

*2 (N.D. Ind.

May 22. :.o 17) (citing 39 U .S.C. § 409(b)): sec also Marcus v. Postmaster Gen .. 461 F. App ·x
820. 821 t 11th Cir. 2011) (holding that the Postal Sen· ice must be
Rule 4(i)).

scr\'~d

in accordance with

To sen·e the United States. a plaintiff must send a copy of the summons nnd

complaint by registered or certified mail to the Atlomey General of the United States nnd deliver
a copy of the summons nnd complaint to the United States AUomey for the district where the
action is brought.

Fed. R. Civ. P. 4{i)(l ). Delivery to the United States Attorney may be

effected by { l) delivering a copy of the summons and complaint to the United States Attorney:
(2) delivering a copy of the summons and complaint to an AUSA or clerical employee
designated by the United States Attorney in a writing filed with the court clerk: or (3) sending a
copy of the summons nnd complaint by registered or certified mail to the civil-process clerk at
the United States Attorney's office.

Fed~

R. Civ. P. 4(i)(l)(A)(i)-(ii).

On May 17, 2018, Draper filed a self-styled "cenificate of service." along with a package
receipt from a United Parcel Service (UPS) store.

Docket No. 21.

However, neither the

certificate nor the UPS receipt indicates that the Postal Service was properly sen·ed \\ith process.
1
Based on the filing date of the notice of removal, Draper had until May 14, ::!01& to uccomplish
service on the Postal Service. However. in light of his I!!Q ~status and the particular circumsUlnces prc~entcd.
the court extended the time for Draper to properly serve the Postal Service until Muy ::!8, ::!018.

2

The tracking number on the receipt reveals only that a package was delivered to an unknown
address in Roanoke, Virginia on May 18. .:!0 18. which does not meet the requirements of Rule
4(i). In short, Draper has consistently failed to establish that ··a copy of the summons and of the
complaint'' was sent to the Attorney General of the United States in Washington. D.C. or
delivered to an appropriate person in the United States Attorney's office. Fed. R. Civ. P. 4(i)(:\).
The court has advised Draper on multiple occasions that he must satisfy the service
requirements of Rule 4(i). 2 Despite recei,·ing an extension of time in which to serve the Postal
Service, he has not provided proof of service in accordance with the federal rule. Accordingly,
pursuant to Rule 4(m) and the court's previous order. the court will dismiss the action without
prejudice.

See Fed. R. Civ. P. 4(m) ("lf a defendant is not served within 90 days after the

complaint is filed. the court-on motion or on its own after notice to the plaintiff-must dismiss
the action ·without prejudice against that defendant or order that service be made within a
specified time.").

\.

The Clerk is directed to send a copy of this memorandum opinion and the accompanying

I

I

order to the plaintiff and all counsel of record.
DATED: This

5.J!!. day of~· 2018.
Senior United States District Judge

2
Although the Postal Service may be aware of the pending action, ''[a]ctual notice does not equate \o
sufficient service of process, even under the liberal construction of lhc rules upplicablc to a IrrQ g plaintiif."
Scott v. Md. State Dep't of Labor, 673 F. App'x 299,305 (4th Cir. 2016). Likewise, "[t)he filing of a removal
petition docs not cure a defect in service or constitute a waiver of the right to o~icct to service of process."
Nasserv. Whitepages. Jnc, No. 5:12-cv-00097, 2013 U.S. Dist. LEXIS 73697, at•5 (W.D. Va. May 23. 2013)
(citing City of Clarksdale v. BellSouth Tclecomm .• Inc., 428 f.3d 206, 214 n.IS (5th Cir. 2005)).

3