DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.
A former prisoner filed this lawsuit against the Federal Bureau of Prisons, a federal employee and other unknown defendants pursuant to the Federal Tort Claims Act. I granted the motion to substitute the United States for the named defendants as the proper party. The United States has now moved to dismiss the case for inadequate service of process pursuant to Fed. R. Civ. P. 12(b)(5).
Plaintiff Nicholas Martello, who had earlier been convicted of federal drug charges, was returned to the custody of
Before his 2012 incarceration, while not in custody, Mr. Martello underwent surgery to repair his left patella tendon, which involved the implantation of orthopedic hardware (a wire). During his subsequent incarceration, he complained that the wire holding the tendon snapped and he was in "unbearable pain." In May 2012, he was transferred to the Federal Correctional Institution in Otisville ("Otisville") where he was eventually examined by Dr. Diane Sommer. On September 25 and October 9, 2012, X-ray evaluations confirmed that the hardware had failed. The wire was successfully removed on December 7, 2012. Mr. Martello stayed at Otisville until January 22, 2013, at which time he was released from BOP custody.
Mr. Martello filed an administrative tort claim received by the Northeast Regional Office of the BOP on December 5, 2012. He alleged that employees of the BOP were negligent in failing to address his medical needs. He sought damages in the amount of $10,000. The claim was denied on June 4, 2013. Upon this denial, Mr. Martello had the right to file a suit regarding his claim in an appropriate court within six months of the date of the response. See 28 C.F.R. § 543.32 (g).
Mr. Martello did not exercise this right until December 4, 2013, the last day before the six months limitation period expired. He brought this action pursuant to the Federal Tort Claims Act, claiming that he received inadequate medical care during this incarceration. Specifically, he alleged four claims: Count I against the BOP for negligence; Count II against Dr. Sommer for negligence; Count III against Dr. Sommer for violations of his civil rights; and Count IV against unknown defendants for negligence.
Mr. Martello served his complaint via Certified Mail on the Federal Bureau of Prisons in Washington, D.C. on February 3, 2014 and on Dr. Sommer on February 4, 2014. He served the United States Attorney's Office on April 29, 2014. He did not serve the Attorney General with this original complaint.
On June 24, 2014, the defendants moved to substitute the United States as the proper defendant to plaintiff's negligence claims. While that motion was pending, defendants also moved to transfer the case to the Southern District of New York. On December 1, 2014, I denied the motion to transfer but granted the motion to substitute the United States as the proper party for Count I and Count II. On February 24, 2015, I dismissed Count III pursuant to the parties' stipulation of dismissal.
On February 2, 2015, over a year after Mr. Martello initiated this litigation, the government moved to dismiss for insufficient service of process with respect to Count I and Count II pursuant to Fed. R. Civ. P. 12(b)(5). Mr. Martello filed his opposition on February 23, 2015, contending that he timely served the United States after it became a party to the suit.
He again served the United States Attorney's Office via certified mail on March 12, 2015. The Office of Attorney General was served for the first time on March 17, 2015 by certified mail.
This motion to dismiss for insufficient service of process implicates four different
The timing of service of process is governed by
Finally,
The threshold question is whether Mr. Martello timely served the United States. The government argues that Mr. Martello failed to serve the United States properly before the expiration of the 120-day period and I must agree.
Rule 4(i)(2) is clear about how a plaintiff can accomplish service upon an agency or employee sued in an official capacity. The plaintiff must, in addition to serving the agency or the employee, serve the United States by delivering a copy of the summons and of the complaint: (A) to the United States attorney for the district in which the action is brought, to their designated representative, or to the civil-process clerk at the United States attorney's office; and (B) to the Attorney General of the United States at Washington, D.C. See, e.g., Gargano v. I.R.S., 207 F.R.D. 22, 22-23 (D.Mass.2002); Canini v. U.S. Dep't. of Justice Fed. Bureau of Prisons, No. 04 Civ. 9049(CSH), 2008 WL 818696, at *3 (S.D.N.Y. Mar. 26, 2008) (holding that because the United States, not the Federal Bureau of Prisons, was the proper defendant for this action, service upon only the Bureau was not sufficient.)
In the present case, because the plaintiff filed his claims against the BOP, a government agency, and Dr. Sommer, acting in her official capacity at the BOP's Otisville facility, Rule 4(i)(2) required the plaintiff to serve the United States on or before April 3, 2014, when the 120 days period expired. The plaintiff, however, did not serve the United States Attorney until April 29, 2014.
The plaintiff argues that Fed. R. Civ. P. 4(m) allows him to make service on the United States within 120 days after it was substituted as a party in the suit. This is a misunderstanding of Rule 4(m). It is true that "an amended complaint that adds defendants to an action must be served upon such defendants `within 120 days after the amended complaint is filed.'" Brait Builders Corp. v. Mass. Div. of Capital Asset Mgmt., 644 F.3d 5, 9 (1st Cir.2011). However, a case under the Federal Tort Claims Act does not fall within that category. The plaintiff here did not amend his complaint to add the United States as a new party; instead, the government was substituted for the original parties as a matter of law because the exclusive remedy provision under the FTCA, 28 U.S.C. § 2679, renders the United States the proper party to the suit. This distinction is more than nominal. Substituting the United States as the proper party under the Federal Tort Claims Act is different from adding a new party to an amended complaint.
First, Fed. R. Civ. P. Rule 4(i) specifically requires that the plaintiff serve the United States even when the lawsuit is initially filed against a federal agency officer or employee acting in an official capacity. Fed. R. Civ. P. 4(i)(2). An additional 120-day period after the United States is substituted would undermine this rule. It would give no incentive for a plaintiff to serve the United States in a timely fashion, since additional time for service of process could be granted when the substitution takes place later. See 28 U.S.C. § 2679(d). In allowing the substitution of the United States as a party, the FTCA
Second, unlike the circumstances involved in adding an entirely new party in an amended complaint, there is no need for an additional 120-day period after the substitution of the United States under the FTCA. For amended complaints, the principal reason for an additional 120 days to serve process is to avoid a perverse result under the relation-back provisions of Fed. R. Civ. P 15(c). See, e.g., City of Merced v. Fields, 997 F.Supp. 1326, 1338 (E.D.Cal. 1998) (concluding that absent the additional 120-day period, the relation-back doctrine would be unduly restricted because it would only be of use when the statute of limitations for a party's action expired between the beginning and the end of the 120-day period for service). Because substitution under the FTCA does not pose challenges related to relation back, however, the basic 120 day period is appropriate when, as here, effective notice to the United States was available. See generally Fed. R. Civ. P. 15(c)(2), Advisory Committee Notes, 1966 Amendment (recognizing that substitution of the United States should generally result in relation back under the Federal Rules of Civil Procedure).
I find the time period for service of process on the United States started to run on December 4, 2013 (the initial filing date), not from the date when the United States was substituted as a proper party under Federal Tort Claims Act. Accordingly, I conclude that Mr. Martello failed to effect timely service upon the United States.
Faced with the government's motion to dismiss for inadequacy of service, Mr. Martello requested in his opposition an extension of the time period to make service on the United States to March 13, 2015. Fed. R. Civ. P. 4(i)(4), Fed. R. Civ. P. 4(m) and Fed. R. Civ. P. 6(b) independently give the court discretion to extend the time period for service of process. However, Rule 4(i)(4) does not apply in the present case because the plaintiff did not serve either the United States Attorney or the Attorney General of the United States before the expiration of the 120-day time period as required by that provision. Fed. R. Civ. P. 6(b) is also unavailable to plaintiff, see infra note 2. Consequently, I focus instead on Rule 4(m).
In general, if it is established — as it has been here — that proper service of process was not made within the 120-day time period, Fed. R. Civ. P. 4(m) offers two avenues for extending the prescribed time period for the service of a complaint, one mandatory, one discretionary. Cf. United States v. Tobins, 483 F.Supp.2d 68, 77 (D.Mass.2007) (citing In re Sheehan, 253 F.3d 507, 512 (9th Cir.2001)). If the plaintiff has met his burden of establishing "good cause" for the untimely service, the court must extend the time for service. Id. By contrast, "[i]f there is no good cause, the court has the discretion to dismiss without prejudice or to extend the time period." Id. See also Fed. R. Civ. P. 4, Advisory Committee Notes, 1993 Amendment (authorizing relief "even if there is no good cause shown.")
In considering whether good cause exists to justify an extension, courts look at four factors:
McIsaac v. Ford, 193 F.Supp.2d 382, 383 (D.Mass.2002) (quoting 4B WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: Civil 3d § 1137, at 342 (2002)).
The plaintiff here does not appear pro se or in forma pauperis. Nor has he shown diligence in trying to effect service. He served the United States Attorney's Office twenty-six days after 120-day period expired (Doc. No. 7 and Doc. No. 8), and the Attorney General almost a year thereafter. There is no indication that these followed previous, unsuccessful attempts at service. He did not seek enlargement of time period until he was forced to respond the defendant's motion to dismiss for inadequate service. See McIsaac, 193 F.Supp.2d at 383 ("Last minute attempts at service, absent some explanatory justification, do not establish good cause.") Moreover, nothing in the record suggests that the United States or another third party has engaged in misleading conduct that caused this delay. Compare Benjamin v. Grosnick, 999 F.2d 590, 592 (1st Cir. 1993) (good cause shown when plaintiffs relied on deputy sheriff's sworn representations about the return of service.)
The plaintiff suggests that his misunderstanding about the substitution of the United States as the proper party should constitute a good cause for the extension of the time period for service. That position is not compelling. Courts should not reward the party's failure to pay attention to rules. See, e.g., Riverdale Mills Corp. v. U.S. Dep't of Transp., 225 F.R.D. 393, 395 (2005) ("Neglecting to conduct adequate research and comply with a relatively clear rule (i.e. Rule 4) does not constitute good cause for failing to serve process.")
Finding that Mr. Martello failed to demonstrate good cause for his delay of service upon the United States, I am not obligated to provide an extension, but still may do so.
First, there is no doubt that the United States Attorney's Office received actual notice of the lawsuit when Mr. Martello belatedly effected service on April 29, 2014 (Doc. No. 7 and Doc. No. 8). Yet it was not until over nine months later that the United States moved to dismiss for inadequacy of service.
Second, nothing in the record reveals any cognizable prejudice from belated formalization of service to the government in defending the present case. Indeed, the government received actual notice at a relatively early stage, has been defending the case since its notice of appearance on May 14, 2014, and has been engaging in preliminary motion and scheduling practice, all before raising its concerns about service. I cannot find — and the government could not articulate at its hearing on this motion — any way the government would be prejudiced in defending the case. See Riverdale Mills Corp., 225 F.R.D. at 395 ("[T]the FAA will not be prejudiced by an extension of the time for service because the FAA has long had notice of this dispute and has had ample time, during several phases of litigation, to anticipate the present appeal and develop a response."); Tobins, 483 F.Supp.2d at 80 (finding that defendant would not be subject to prejudice because he received notice of the action and failed to show any actual harm to his ability to defend the action as a result of the delay in service). Compare Lezdey, Civil Action No. 12-11486-RWZ, 2013 WL 704475, at *5 (refusing to extend time for service in part because it was unclear whether the defendant had received actual notice or whether it would suffer prejudice as a result of the extension).
Third, and most importantly, a dismissal of Mr. Martello's suit under Rule 4(m) would as a practical matter be with prejudice since the six-month statute of limitations has lapsed. This final point should be given substantial weight in considering an extension under Rule 4(m), because the Rule was specifically contemplated to provide for extensions in such cases. See Fed. R. Civ. P. 4(m), Advisory Committee Note, 1993 Amendments ("Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action....")
The government, relying on McIsaac v. Ford, 193 F.Supp.2d 382 (D.Mass.2002) argues that the case must be dismissed even though the statute of limitations has run out. The plaintiff in McIsaac filed suit two days before the expiration of the statute of limitations but did not make service upon defendants before the 120-day time period for service ran out. McIsaac, 193 F.Supp.2d at 382. On the last day for service, the plaintiff asked the U.S. Marshal's Office and the Suffolk County Sheriff's
With respect, I do not believe a bright-line test, such as that promulgated in McIsaac, is warranted for a discretionary extension under Rule 4(m). Nothing in Fed. R. Civ. P. 4(m) requires that the request for an extension be made before the standard period for service has expired. Rather, the Advisory Committee Notes recognize the court's discretion to provide relief. Crevier, Civil Action No. 05-40184-FDS, 2007 WL 120237, at *5 (finding that McIsaac runs counter to the language of the Advisory Committee notes to the 1993 amendment to Rule 4(m) and thus granting extension when statute of limitations on all plaintiff's claims expired and there was little danger of prejudice to the defendant). Moreover, the purpose of the rules for service is to "supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections." Henderson v. United States, 517 U.S. 654, 672, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). That purpose appears essentially to have been met in this case.
Given that the United States received actual notice at the outset of this litigation and no potential prejudice against government has been suggested, it is not unfair to grant an extension under Rule 4(m) to Mr. Martello, who, if the case is dismissed, would be completely deprived of the opportunity to seek relief for his alleged injuries. See, e.g., Tobins, 483 F.Supp.2d at 81 (granting extension for service when the statute of limitations has run out on nearly all claims and the defendant, having received actual notice, demonstrated no prejudice in defending the action). Accordingly, I will exercise my discretion to extend the service date here to March 17, 2015, when the plaintiff finally satisfied the Fed. R. Civ. P. 4(i) protocol for service on the United States by at last making service on the Attorney General. Cf. Fed. R. Civ. P. 15(c)(2).
The United States questions my discretion to extend the period for service on the basis of Fed. R. Civ. P. 4(m) by contending that this court's Local Rule 4.1 mandates a dismissal of the case. In considering this contention, it will be useful to restate the precise language of Local Rule 4.1(b).
The government asserts that the case must be dismissed under Local Rule 4.1 because Mr. Martello failed to move for an enlargement of time or show good cause within fourteen days after the expiration of the 120-day service period. The government contends that the word "shall" in Local Rule 4.1(B) imposes a mandatory, not a discretionary obligation upon the court.
It is settled that a local rule carries the force of law within its sphere. United States v. Lopez-Matias, 522 F.3d 150, 153 (1st Cir.2008). But a local rule must be viewed in the context of 28 U.S.C. § 2071(a), which both grants and constrains the rule-making power of the courts by directing that "rules shall be consistent with Acts of Congress and [federal rules of practice, procedure and evidence]." Id. (quoting Air Line Pilots Ass'n v. Precision Valley Aviation, 26 F.3d 220, 224 (1st Cir.1994)); see also Fed. R. Civ. P. 83, Advisory Committee Notes, 1985 Amendment ("Rule 83, which has not been amended since the Federal Rules were promulgated in 1938, permits each district to adopt local rules not inconsistent with the Federal Rules by a majority of the judges.").
The case law is split about whether Local Rule 4.1 should be given controlling force in this context. Compare Furtado v. Napolitano, No. 09-11030-RGS, 2010 WL 577938, at *3 (D.Mass. Feb. 12, 2010) ("Local Rule 4.1 makes clear that the 120-day service period may not be extended where, as here, a plaintiff fails to make a good cause showing for an extension within ten days of the expiration of the 120-day deadline."), with Tobins, 483 F.Supp.2d at 81 (finding that the government was not required to move for an enlargement of time under Local Rule 4.1 before the court could extend service deadlines). See also United States v. Lezdey, Civil Action No. 12-11486-RWZ, 2013 WL 704475, at *5 (D.Mass. Feb. 26, 2013) (finding no good cause for insufficient process in part because the plaintiff never sought an enlargement of time under Fed. R. Civ. P. 6(b) as prescribed by Local Rule 4.1); Boldiga v. Federal Bureau of Prisons, No. 14-12135-MBB, 2015 WL 3505261, at *8 (D.Mass. Jun. 3, 2015) (Local Rule 4.1 "mandates" dismissal if motion to enlarge is not filed).
I decline to make the enforceability of Local Rule 4.1 a categorical imperative, when, as here, it conflicts with a national rule of procedure. The Local Rule is essentially a housekeeping provision warning parties that clerks are authorized to enter dismissals when the period for service has expired and no extension of time has been afforded. More specifically, the Local Rule only governs "those who seek to show good cause for the failure to make service within the 120 day period." My decision does not rest on plaintiff's showing of good cause — indeed, I find he has failed to — but on my discretionary authority to extend the time for service without good cause. The Local Rule's instructions for how good cause is to be shown do not apply when good cause need not be shown. Accordingly, I will not dismiss the case simply on the ground that Mr. Martello failed to move for an enlargement of time in the manner required by Local Rule 4.1 when Local Rule 4.1 was not in fact deployed by the clerk to dismiss the case before a request for an extension was made.
For reasons set forth more fully above, I grant a discretionary extension of time under Rule 4(m) to Mr. Martello to effect
In Hospital del Maestro v. N.L.R.B., 263 F.3d 173 (1st Cir.2001), the First Circuit made clear that courts should focus on the reason for the delay when making determinations under Rule 6(b):
Id. at 174 (quoting Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir.2000)); see also Dimmitt v. Ockenfels, 407 F.3d 21, 24 (1st Cir.2005) ("[A]mong the factors enumerated in Pioneer, by far the most critical is the asserted reason for the mistake.") Subsequent case law has faithfully followed this approach. See, e.g., Crevier, Civil Action No. 05-40184-FDS, 2007 WL 120237, at *4 (finding no excusable neglect when the "plaintiff supplied the Court with no reason why service was not at least attempted within the 120-day window of Rule 4(m), much less why that delay was `excusable.'")
Mr. Martello has submitted no explanation, other than inattentiveness, for why he failed to effect service upon the United States before the 120-day time period expired on April 3, 2014. Mere failure to follow the rules does not ordinarily constitute excusable neglect. See Dimmitt, 407 F.3d at 24 ("[C]ounsels' inattention or carelessness, such as a failure to consult or to abide by an unambiguous court procedural rule, normally does not constitute `excusable neglect.'") Without good reason for delay, a discretionary extension for Mr. Martello to effect service on the United States would not be proper under Rule 6(b).
