United States District Court, District of Columbia
PAUL S. MORRISSEY, Plaintiff,
CHAD F. WOLF, Acting Secretary, U.S. Department of Homeland Security,  Defendant.
MEMORANDUM AND ORDER
N. McFADDEN, U.S.D.J.
Paul S. Morrissey moves to reinstate his Complaint. The Court
dismissed it under Federal Rule of Civil Procedure 4(m). This
rule requires a plaintiff to serve a defendant within 90 days
of filing a complaint. Morrissey filed his Complaint on June
28, 2019, so he had to serve the Defendant by September 26.
The Court reminded Morrissey of his obligation under Rule
4(m) and ordered that "by no later than September 26,
2019, the Plaintiff must either cause process to be served
upon the Defendant and file proof of service with the Court
or establish good cause for the failure to do so."
9/12/19 Minute Order. Morrissey did not do so, and the Court
dismissed the Complaint.
represents that he did in fact serve the Defendant before
September 26 and that his counsel's medical appointment
during the week of September 23 prevented him from timely
filing proof of service. See Mot. to Reinstate at
1-2. He asks the Court to accept the exhibits attached to his
motion to reinstate as proof of service. Id. at 3-4.
But these exhibits fail to show that Morrissey properly
served the Defendant.
governing provision is Federal Rule of Civil Procedure
4(i)(2), which tells a plaintiff what he must do to serve
"a United States agency or corporation, or a United
States officer or employee sued only in an official
capacity." The caption of the Complaint names Kevin
McAleenan, then Acting Secretary of Homeland Security, as the
Defendant. Compl. at 1. The Complaint asserts that Morrissey
is bringing his action "against the U.S. Department of
Homeland Security, United States Secret Service
('Defendant' or'Agency')," and that
"Defendant is a federal law enforcement agency under the
Department of Homeland Security." Id. at 1-2.
Morrissey's action is thus one against "a United
States agency or corporation, or a United States officer or
employee sued only in an official capacity."
serve such a defendant, a plaintiff "must serve the
United States and also send a copy of the summons and of
the complaint by registered or certified mail to the agency,
corporation, officer, or employee." Id.
(emphasis added). The exhibits attached to Morrissey's
motion show that he sent a copy of the summons and Complaint
to the service agent for the Department of Homeland Security.
See Mot. to Reinstate Ex. I; Id. Ex. 2. So
far, so good. But they do not show that he has
served "the United States." To serve the United
States, a plaintiff must serve both "the United States
attorney for the district where the action is brought"
and "the Attorney General of the United
States." See Fed. R. Civ. P. 4(i)(1)(A)-(B).
There is no proof Morrissey served either the U.S. Attorney
or the Attorney General, so the Court finds that Morrissey
failed to do so within the 90-day time limit.
not the end of the matter, as Rule 4 requires the Court to
extend the time for service under certain conditions. See
Id. 4(i)(4), 4(m). First, "the court must
extend the time for service for an appropriate period"
if the plaintiff shows "good cause" for the failure
to effect timely service. Id. 4(m). The Court's
September 12 Minute Order directed Morrissey to
"establish good cause" if he failed to serve the
Defendant by September 26. Morrissey's motion to
reinstate does not try to show good cause, presumably because
he thinks he did properly serve the Defendant. The
Court can presume only that Morrissey failed to effect timely
service because he misread or ignored Rule 4(i)(2). But a
misunderstanding of the rule is not good cause. See Mann
v. Castiel, 681 F.3d 368, 374 (D.C. Cir. 2012)
("Good cause exists 'when some outside factor . . .
rather than inadvertence or negligence, prevented
service.'" (quoting Lepone-Dempsey v. Carroll
Cty. Comm 'rs, 476 F.3d 1277, 1281 (11th Cir.
2007))). And, of course, ignorantia juris non
excusat. The Court holds that Morrissey has not shown
good cause for his failure to effect timely service.
the Court "must allow a party a reasonable time to cure
its failure to . . . serve a person required to be served
under Rule 4(i)(2), if the party has served either
the United States attorney or the Attorney General of the
United States." Fed.R.Civ.P. 4(i)(4)(A) (emphasis
added). This provision does not apply here, since Morrissey
has served neither the U.S. Attorney nor the
Attorney General. See Mot. to Reinstate Ex. 1;
id. Ex. 2.
still not the end of the matter, as the Court also considers
whether to grant Morrissey a discretionary extension of time
to complete service. See Fed. R. Civ. P. 4(m)
("If 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'' (emphasis
added)). Most circuits have held that Rule 4(m) permits
district courts to grant discretionary extensions of time
even absent good cause. See Mann, 681 F.3d at
375-76; but see Mendez v. Elliot, 45 F.3d 75, 78-79
(4th Cir. 1995) ("[T]he court may only grant the
extension for good cause."). Some circuits have even
held that Rule 4(m) requires district courts to
consider whether to grant a discretionary extension. See,
e.g., Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d
338, 341 (7th Cir. 1996); but see Thompson v. Brown,
91 F.3d 20, 21-22 (5th Cir. 1996) (rejecting a claim that the
district court erred in "fail[ing] even to consider
whether it should exercise its discretion to grant an
extension" because the plaintiff "failed to ask the
court for an extension of time").
D.C. Circuit has not specified what factors a district court
must weigh when considering whether to grant a discretionary
extension under Rule 4(m), but it has said that
"dismissal of a case pursuant to Rule 4(m) is
appropriate when the plaintiff s failure to effect proper
service is the result of inadvertence, oversight, or neglect,
and dismissal leaves the plaintiff in the same position as if
the action had never been filed." Mann, 681
F.3d at 376 (cleaned up).
Mann, the plaintiffs suggested that a statute of
limitations would bar them from refiling their complaint, but
the district court found that they "had failed to
provide enough information to gauge the legitimacy of their
concern that they would be unable to refile their
complaint." Id. The plaintiffs also "had
not been diligent in correcting the service
deficiencies." Id. The district court found
that the two pro se plaintiffs were not entitled to
"additional latitude" to correct their service
deficiencies because they "had been notified of the
requirements of Rule 4(m)" and were sophisticated
litigants who "worked in tandem with counsel for the
corporate plaintiffs." Id. at 377. The circuit
affirmed the district court's order of dismissal.
Mann, one factor to consider here is whether a
statute of limitations would bar Morrissey from refiling his
action. Morrissey's motion to reinstate does not discuss
this issue, so arguably, as in Mann, Morrissey has
"failed to provide enough information" about
whether there is a legitimate statute of limitations concern.
See Id. at 376. The Court observes, however, that
Morrissey's Complaint alludes to a limitations period
that has long since expired. See Compl. ¶ 7.
The Court will thus assume that Morrissey may be barred from
refiling his action. Yet that is not necessarily enough to
carry the day. Mann does not say that dismissal is
appropriate only when a plaintiff would be able to
refile his action. See 681 F.3d at 376-77'.
Other circuits have held that a district court may decline to
grant a discretionary extension under Rule 4(m) even if a
statute of limitations would prevent a plaintiff from
refiling. See, e.g., Petrucelli v. Bohringer &
Ratzinger, 46 F.3d 1298, 1306 (3d Cir. 1995). It is thus
appropriate to consider this factor in context.
the Mann plaintiffs, Morrissey is not proceeding
pro se, and the Court notified him of his obligation
under Rule 4(m) two weeks before the deadline for service.
These factors weigh against him. See Mann, 681 F.3d
at 377. True, the service requirements for federal agencies
and officials are complex, cf. Espinoza v. United
States, 52 F.3d 838, 842 (10th Cir. 1995), but this does
not cut in Morrissey's favor. The rules provide for some
relief from the complex requirements of Rule 4(i), but they
do not contemplate relief in this case.
that Rule 4(i)(4)(A) requires an extension for compliance
with Rule 4(i)(2) when the plaintiff has served either the
U.S. Attorney or the Attorney General. But no rule provides
relief when, as here, a plaintiff has partially complied with
Rule 4(i)(2) by serving only the agency or official. And the
very next subsection does provide relief when a
plaintiff has served only a federal official, but when
Rule 4(i)(3)-not Rule 4(i)(2)-is the governing
provision.Seeded. R Civ. P. 4(i)(4)(B). The
choice to provide relief for some instances of partial
compliance with Rule 4(i)-but not the instance of partial
compliance we have here-is yet another factor that counsels
against an extension of time. See Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 107 (2012) ("The expression of one
thing implies the exclusion of others (expressio unius
est exclusio alterim)").
all these factors, the Court finds it appropriate to enforce
the time limit in Rule 4(m), even if a statute of limitations
may bar Morrissey from refiling his action. The Court thus
declines to grant ...