United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Kelly Stephenson's Motion for
Reconsideration of the Court's order dismissing this case
for failure to effectuate service. He appears to blame a
clerical error for his failure. Invoking Federal Rule of
Civil Procedure 60(b), he argues that he should be allowed
more time to effectuate service, despite the additional time,
instructions, and warning the Court already provided him. For
the reasons discussed below, the Court disagrees and will
exercise its discretion to deny the motion.
brought this action in July 2019, alleging that he had been
unlawfully discriminated against due to his age and
disability. See ECF No. 1 (“Compl.”). He
named a single defendant, Elaine Chao, who was “being
sued here in her official capacity only.” Id.
at ¶ 7. In such cases, Federal Rule of Civil Procedure
4(i)(2) governs service. That rule instructs that when suing
a United States officer or employee in their official
capacity, a plaintiff must send a copy of the summons and the
complaint by registered or certified mail to the defendant
and serve the United States in accordance with Rule
4(i)(1). Fed. R. Civ P. 4(i)(2). Rule 4(i)(1) explains that
to serve the United States, a plaintiff must appropriately
serve the United States attorney for the district where the
action is brought and the Attorney General of the
United States. A plaintiff must complete these steps within
90 days of filing her complaint. Fed.R.Civ.P.
4(m). If a plaintiff fails to do so—absent
a showing of good cause—a court “must dismiss the
action without prejudice against that defendant or order that
service be made within a specified time.” Id.
Stephenson filed his complaint on July 29, 2019. See
Compl. As a result, he had until October 27, 2019 to
effectuate service. See Fed R. Civ. P. 4(m). But, by
that time, the only service-related step he had taken was to
request (and receive) a summons as to Chao. See ECF
Nos. 2, 3. For that reason, on November 20—nearly a
month after the service deadline had passed—the Court
advised Stephenson of his obligation to effectuate service on
the United States Attorney and the Attorney General and
ordered him to do so. See Minute Order of November
20, 2019. Stephenson had neither sought an extension nor
provided any good cause for his failure to effectuate service
at that time. Still, the Court gave him until December 4,
2019—two additional weeks—to file proof of
service. See Id. The Court warned him that failure
to do so could lead to the dismissal of his case without
prejudice. See id.
December 3, Stephenson filed an affidavit affirming that
service had been made on Chao via certified mail.
See ECF No. 4. However, he did not represent that he
so much as tried to serve the United States Attorney or the
Attorney General, as the Court had ordered. See id.
He also did not explain his failure to do so, nor did he
request an extension of time. As a result, under Rule 4(m),
the Court dismissed the complaint without prejudice.
See Minute Order of December 5, 2019.
now moves for reconsideration. See ECF No. 5
(“Mot.”). He asks the Court to vacate its
previous order dismissing the complaint without prejudice and
to allow him an additional 60 days to effectuate service.
Id. at 1.
motion to reconsider a final order is generally treated as a
Rule 59(e) motion if it is filed within the filing time limit
set forth in that rule—as [Stephenson's]
was—and as a Rule 60(b) motion if it is filed
thereafter.” Roane v. Gonzales, 832 F.Supp.2d
61, 64 (D.D.C. 2011). Even so, Stephenson explicitly invokes
only Rule 60(b). See Mot. at 1, 3. Accordingly, the
Court will consider his motion under both rules. Under
either, a movant must clear a high bar and a district court
has considerable discretion in deciding whether to grant
relief. See Piper v. U.S. Dep't of Justice, 312
F.Supp.2d 17, 20 (D.D.C. 2004) (discussing Rule 59(e));
Avila v. Dailey, 404 F.Supp.3d 15, 21 (D.D.C. 2019))
(discussing Rule 60(b)).
Federal Rule of Civil Procedure 59(e), a motion to reconsider
‘is discretionary and need not be granted unless the
district court finds that there is an intervening change of
controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest
injustice.'” Trudel v. SunTrust Bank, 924
F.3d 1281, 1287 (D.C. Cir. 2019) (quotation omitted). It is
not a vehicle “to bring before the Court theories or
arguments that could have been advanced earlier.”
Lightfoot v. D.C, 355 F.Supp.2d 414, 421 (D.D.C.
2005) (quotation omitted).
a party should be granted relief under Rule 60(b) is a matter
left to the district court's discretion.”
Mazengo v. Mzengi, 542 F.Supp.2d 96, 98 (D.D.C.
2008). Rule 60(b) provides six grounds for granting relief
from a final judgment. Most of the six involve an intervening
action or conduct that occurred after the court entered
judgment. See Fed. R. Civ. P. 60(b). Although
Stephenson does not explicitly say so, see Mot. at
1, 3-4, only the first ground for relief could be relevant
here. Rule 60(b)(1) allows for relief due to “mistake,
inadvertence, surprise, or excusable
neglect.” The Supreme Court has articulated four
factors for courts to consider when determining whether
neglect is excusable: “(1) the danger of prejudice to
the party opposing the modification, (2) the length of delay
and its potential impact on judicial proceedings, (3) the
reason for the delay, including whether it was within the
reasonable control of the movant, and (4) whether the movant
acted in good faith.” In re Vitamins Antitrust
Class Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003)
(citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395 (1993)). Courts in this
District have found that the third factor—how much the
movant was to blame for the neglect—is the most
important. See Jarvis v. Parker, 13 F.Supp.3d 74,
78-79 (D.D.C. 2014); see also Elec. Privacy Info. Ctr. v.
U.S. Dep't of Homeland Sec., 811 F.Supp.2d 216, 225
(D.D.C. 2011) (“Relief under Rule 60(b)(1) turns on
equitable factors, notably whether any neglect was
excusable.”). A court considering any motion under Rule
60(b) “must balance the interest in justice with the
interest in protecting the finality of judgments.”
Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C.
Cir. 2004). Additionally, “Rule 60(b) is not ‘a
vehicle for presenting theories or arguments that could have
been raised previously.'” Walsh v. Hagee,
10 F.Supp.3d 15, 19 (D.D.C. 2013) (citation omitted).
alleges that “a clerical error prevented Defendant from
being served properly.” Mot. at 4. He states, without
further explanation, that “the signature card sent to
the U.S. [sic] Attorney's Office and the Attorney General
was lost by the Plaintiffs attorney's mailing sorting
service.” Id. Although Stephenson's
attorney represents that he discovered this error after the
Court's November 20 Order, he alleges nonetheless, and
again without further explanation, that he “was unable
[sic] properly effectuate service by the December 4, 2019
deadline.” Id. He argues that reconsideration
is warranted because otherwise his claims will be
time-barred. See Id. at 5-6. As set forth
below, this explanation—to the extent that it even
makes sense—does not justify the extraordinary relief
Rule 59(e), Stephenson does not argue the existence of
“an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.” Trudel,
924 F.3d at 1287 (quotation omitted). Indeed, his own role in
the failure to effectuate service undercuts any possible
claim of manifest injustice. See Piper, 312
F.Supp.2d at 22-23 (observing that “manifest injustice
does not exist where, as here, a party could have easily
avoided the outcome, but instead elected not to act until
after a final order had been entered” (quotation
omitted)). Rather, he appears to be trying to use this motion
as a vehicle to make arguments in favor of an extension under
Rule 4(m). This he cannot do because he had every opportunity
to request such an extension on or before December 4.
Id. at 22 (noting that “Rule 59(e) motions are
not granted when losing parties enlist the motion to make new
arguments that could have been raised prior to final
judgment”); see also W.C. & A.N. Miller Cos. v.