JOSEPH T. PRISCO, PLAINTIFF-APPELLANT,
v.
ANTHONY M. FRANK, POSTMASTER GENERAL U.S. POSTAL SERVICE, DEFENDANT-APPELLEE
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The court held that mailing a discrimination complaint to the U.S. Attorney's office, rather than delivering it, constitutes defective service under Fed.R.Civ.P. 4(d)(4).
Appellant mailed a discrimination complaint against the U.S. Postal Service to the U.S. Attorney's office, which was returned as improperly served. Th…
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PER CURIAM:
Appellant mailed a discrimination complaint against the U.S. Postal Service to the U.S. Attorney’s office. Appellee alleges the complaint was defectively served because it was mailed rather than delivered to the U.S. Attorney’s office, as is required under Fed.R.Civ.P. 4(d)(4). We agree and affirm the district court’s dismissal of the complaint.
Appellant was an employee of the U.S. Postal Service. In a suit filed May 22,1989 in federal district court, he alleged that his dismissal from employment in August 1985 violated federal discrimination laws. The next day he sent a copy of the summons and complaint by certified mail to the Postmaster General, the U.S. Attorney General, and the Office of the United States Attorney for the Southern District of Florida. In a letter dated June 2, 1989, the AUSA assigned to the case informed appellant that service by mail rather than delivery did not comply with Fed.R.Civ.P. 4(d)(4), and she mailed the summons and complaint back.
On September 27, 1989, the Postmaster General moved to dismiss the complaint based on failure of service within 120 days under Fed.R.Civ.P. 4(j).
On October 13, 1989, appellant personally served the complaint to the U.S. Attorney’s office, 144 days after the complaint was filed.
The district court granted the Postmaster’s motion after concluding that appellant had not complied with Rule 4(d)(4) and had not shown cause for failure to comply under Rule 40.
Rule 4(d)(4) requires plaintiffs to serve copies of a summons and complaint upon “the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action was brought” or to an assigned agent.
Rule 4(d)(4) [emphasis added]. Plaintiff must also send copies “by registered or certified mail” to the U.S. Attorney General in Washington, D.C. Id.
We agree with appellee that the rule’s textual distinction between mailing and delivering should be strictly respected and that mailing copies to the U.S. Attorney's office is insufficient. See Rodriguez v. Tisch, 688 F.Supp. 1530, 1531 (S.D.Fla.1988); Katz v. United States, No. 88-8323-CIV, 1988 U.S. Dist. LEXIS 16589 (S.D.Fla.1988); see also Whale v. United States, 792 F. 2d 951, 953 (9th Cir.1986).
As the district court pointed out, strict adherence to Rule 4(d)(4) is supported by the fact that a more liberal rule allowing service to the U.S. Attorney by mail has been proposed, but not enacted. See Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, 102 F.R.D. 425 (1985) (copies may be delivered or mailed).
When the plaintiff has failed to properly serve the U.S. Attorney, the complaint must be dismissed. See Frasca v. United States, 921 F. 2d 450, 453 (2d Cir.1990); Light v. Wolf, 816 F. 2d 746, 751 (D.C.Cir.1987).
Appellant argues in the alternative that improper service may be excused for “good cause” under Rule 4(j) if cured after 120 days of filing. He argues that misplaced files prevented earlier delivery. However, courts have found “good cause” under Rule 4(j) only when some outside factor such as reliance on faulty advice, rather than inadvertence or negligence, prevented service. See, e.g., Jordan v. United States, 694 F. 2d 833 (D.C.Cir.1982). In this case, appellant had files sufficient to allow a mailed complaint the day after filing and was informed months before the 120-day deadline. Therefore, no cause is established and the district court properly dismissed the case.
AFFIRMED.
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Horenkamp v. VAN Winkle & Co., Inc., 402 F.3d 1129 (11th Cir. 2005)…ffs failure to timely perfect service of process may be excused for “good cause.” Horenkamp’s failure to timely serve Van Winkle, however, was due to mistake. Therefore, the district court concluded, good cause was not shown. See Prisco v. Frank, 929 F. 2d 603, 604 (11th Cir.1991). Nonetheless, the court excused Horenkamp’s untimeliness, holding that it had discretion to do so under Rule 4(m). Noting that Van Winkle had notice of the suit via the request for waiver of service, and that it had now been p…1 / 2
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Lepone-Dempsey v. Carroll Cnty. Comm'rs, 476 F.3d 1277 (11th Cir. 2007)…court shall extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). Good cause exists “only when some outside factor^] such as reliance on faulty advice, rather than inadvertence or negligence, prevented service.” Prisco v. Frank, 929 F. 2d 603, 604 (11th Cir.1991) (per curiam) (discussing “good cause” under the former Rule 4(j)), superseded in part by rule as stated in Horenkamp, 402 F. 3d at 1132 n. 2. Even in the absence of good cause, a district court has the discretion to extend the…
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In re Cooper, 971 F.2d 640 (11th Cir. 1992)…n of [their] claims.” Id. at 3. Therefore, the district court was required to dismiss the action. The federal rules and the Eleventh Circuit cases are unequivocal on this point. Fed.R.Civ.P. 4(j) (“the action shall be dismissed ”); Prisco v. Frank, 929 F. 2d 603, 604 (11th Cir.1991) (per curiam) (“the complaint must be dismissed ”); Schnabel v. Wells, 922 F. 2d 726, 728 (11th Cir.1991) (“dismissal is mandatory ... unless good cause is shown”); id. at 729 (“dismissal without prejudice was mandated by Rule 4(…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jordan v. United States, 694 F.2d 833 (D.C. Cir. 1982)
- Whale v. United States, 792 F.2d 951 (9th Cir. 1986)
- Frasca v. United States, 921 F.2d 450 (2d Cir. 1990)
- Luise Light v. Wolf, 816 F.2d 746 (D.C. Cir. 1987)
- Rodriguez v. Tisch, 688 F. Supp. 1530 (S.D. Fla. 1988)