The opinion of the court was delivered by: Reggie B. Walton United States District Judge
On December 1, 2004, the plaintiffs filed this action under the False Claims Act, 31 U.S.C. §3730 et seq. (2000) ("False Claims Act" or "Act"), alleging that the defendant*fn1 violated the Act (1) when despite DynCorp's failure to maintain the adequate number of personnel for post-war security contracts in Afghanistan, it falsified claims and statements to the United States Government in order to get an extension of such contracts and payment for "a full force of security personnel," Complaint ("Compl.") ¶¶13-14, and (2) when DynCorp failed to use adequately trained dogs for explosives detection, it provided false claims and statements to the United States Government so it could be compensated for services that the Unites States believed were being performed by highly reliable and adequately trained dogs, id. ¶¶16, 19. Specifically, the plaintiffs allege that they were "employed by the defendant[, DynCorp] to fulfill the contract to protect the presidential compound in Kabul[, Afghanistan]." Id. ¶10. However, they assert that "the defendant [worked] very hard to keep deficiencies in protection hidden from the State Department," id. ¶10, by, among other things, using "dog handlers and Afghan fighters . . . as palace guards," id. ¶12, to remedy the deficiency in the security "force that was required by DynCorp's contract with the State Department," id. Further, the plaintiffs allege that plaintiff Christopher Cody "reported the failings of his dog['s] [performance ] to his superiors and the defendant knowingly kept [the dog] in rotation for vehicle checks at entrance gates to the compound and thus falsely represented that security work was adequately being performed." Id. ¶17.
Currently before this Court is the defendant's motion to dismiss the plaintiffs' complaint*fn2 ("Def. Mot.") pursuant to Federal Rules of Civil Procedure 12(b)(5) (insufficient service of process), 12(b)(6) (failure to state a claim), and 4(m) (failure to effect service of process within the required allotted time) ("Rule 4(m)").*fn3 Based on the reasons set forth below, the Court finds that the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) (insufficient service of process) must be GRANTED.
In October 2002, the State Department's Diplomatic Security Services assumed responsibility for providing security for President Hamid Karzai, President of the Islamic Republic of Afghanistan, from the United States Military. Compl. ¶9. Some of the security work was then outsourced to DynCorp. Id. "DynCorp commenced providing personal security for President Karzai for a period of six months beginning on October 30, 2002." Id. Plaintiff Cody served as an explosives detection dog handler for DynCorp from June 2, 2003 to June 4, 2004, id. ¶5, with the responsibility of handling explosives detecting dogs at the Presidential Compound gate, id. at 10. Plaintiff Frederick Craycraft served as an armed guard in Qatar and Afghanistan for DynCorp from November 5, 2002 to July 2, 2004, id. ¶6, and while in Afghanistan manned the presidential compound gate, id. at 10.
The plaintiffs assert that "DynCorp was [obligated] to provide and maintain a specific number of qualified protective security personnel to perform personal protective services." However, "[d]uring the course of the plaintiffs' employment, they learned that the defendant's protective security force fell far short of the force that was required by DynCorp's contract with the [United States] State Department." Id. ¶12. To compensate for this deficiency, DynCorp allegedly used dog handlers and Afghanstanian fighters as palace guards. Id. In addition, the plaintiffs allege that the explosives detection dog that plaintiff Cody was provided to conduct his work had an unsatisfactory reliability rating. Id. ¶ 16. The plaintiffs assert that these circumstances violated the False Claims Act because (1) the defendant allowed the United States government, while unaware of the inadequate security personnel and assets, to continue to extend DynCorp's contract in Afghanistan and pay the full price for its services, id. ¶14, and (2) the defendant allowed the United States government to continue to pay for the services of dogs who were underperforming when it believes that it is paying for highly reliable and adequately trained dogs, id. ¶¶ 16, 19.
On December 1, 2004, the plaintiffs filed this action and the matter was placed under sealed on the same day. Compl. at 1. Subsequently, on February 2, 2006, counsel for the United States advised the Court that it would not intervene in this matter and suggested that the complaint be unsealed. Notice that the United States Declines to Intervene and Proceed with the Conduct This Civil Action, and Suggestion that the Complaint be Unsealed (Docket Entry No. 6). On February 9, 2006, the Court ordered that the case unsealed and authorized the plaintiffs' to effect service of process on the defendant. Court Order of February 9, 2006 (Docket Entry No. 7). However, the case was not unsealed by the Clerk of the Court until June 9, 2006, and a summon for the defendant was not issued by the Clerk's office until July 21, 2006.
The Court may dismiss a complaint for ineffective service of process pursuant to Federal Rule of Civil Procedure 12(b)(5) if the plaintiff fails to establish that he or she has properly effectuated service in accordance with Federal Rule of Civil Procedure 4. Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). "[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." Id. (internal quotation marks and citations omitted); see also Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003) (holding that "the plaintiff carries the burden of establishing that he has properly affected service") (citing Light, 816 F.2d at 751).
The defendant asserts that the plaintiffs' complaint should be dismissed because (1) the plaintiffs' failed to serve their summons and complaint within the time prescribed by [Federal Rule of Civil Procedure] 4(m)", Def. Mot. at 1, and (2) the plaintiffs' "complaint is subject to dismissal under Federal Rule of Civil Procedure 12(b)(5)", id. at 2-4.*fn4 In opposition, the plaintiffs respond that they had repeatedly sought to have the Clerk of the Court issue a summons for the defendant but that "the lack of response by the Clerk's office delayed the process by more than five months." Pl. Opp'n at 4. Therefore, the plaintiffs contend that the delay in effecting service of process was not their fault and "request that the Court deem the service made on December 19, 2006 [as] done pursuant to an extension being granted by the Court." Id. Further, the plaintiffs assert that "[their] complaint states a cause of action with sufficient particularity to provide [the] defendant adequate notice of the claim asserted." Id. For the reasons set for below, the Court finds that the defendant's motion must be granted pursuant to Federal Rule of Civil procedure 12(b)(5).
Federal Rules of Civil Procedure 12(b)(5) and 4(m)
The defendant argues that the plaintiffs cannot establish good cause for their failure to timely serve the summons and complaint pursuant to Rule 4(m) because (1) they failed to "contact the Court or take other measures to preserve their ability to serve the Complaint within 120 days of the February 9, 2006[,] unsealing order," Def's Reply at 3; (2) counsel for the plaintiffs' does not provide any proof that he attempted to serve CT Corporation, the registered agent for the defendant, with the Complaint and summons, and a request for a waiver of service of process, id. ;(3) the plaintiffs "erroneously contend that CSC somehow lulled them into inaction," by not responding to their request for a waiver of service of process, id. at 4; and (4) "[e]ven if [it is] assumed that July 13 is the operative date . . . [for when the 120-day period commenced to achieve service of process, the plaintiffs] admit that they did not serve the Complaint until 150 days later--on December 19", id. at 7. In opposition, the plaintiffs respond that (1) "although the Court ordered the complaint to be unsealed on February 9, 2006, [the plaintiffs] were unable to get the Clerk's office to issue a summons," id. at 3, and "unseal the complaint as per the [C]court's order until June 9, 2006," id. at 3. Therefore, the plaintiffs further allege that "the lack of response from the Clerk's office delayed the process by more than five months." Id. at 4. In addition, the plaintiffs assert that they "attempted to secure a waiver of service from [the] defendants but the defendant[sic] chose to ignore the request for waiver, even though their counsel established contact with and spoke to [the plaintiffs'] counsel about the service of the complaint." Id.
As noted previously, when a defendant challenges service of process in a federal court proceeding, the plaintiff "must demonstrate that the procedure [he] employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." Wilson v. Prudential Fin., 332 F. Supp. 2d 83, 87 (D.D.C. 2004) (quoting Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)). In this case, Federal ...