United States District Court, E.D. North Carolina, Southern Division
MIA C. ALFORD, Plaintiff,
CHUCK ROSENBERG, Director of DEA, and BETH COBERT, Director of OPM, Defendants, and UNITED STATES OF AMERICA, Interested Party.
C. DEVER III Chief United States District Judge
November 14, 2016, Mia Alford ("Alford") filed a
complaint alleging disability discrimination against the Drug
Enforcement Administration ("DEA"), [D.E. 1-1], and
moved for leave to proceed in forma pauperis [D.E. 1, 4]. On
February 6, 2017, Alford filed a corrected complaint and
named Chuck Rosenberg ("Rosenberg") in his official
capacity as the director of the DEA, and Beth Cobert
("Cobert") in her official capacity as director of
the Office of Personnel and Management ("OPM") as
defendants [D.E. 5]. On March 12, 2018, the defendants filed
a motion to dismiss for insufficient service of process under
Federal Rule of Civil Procedure 12(b)(5) [D.E. 16], and filed
a memorandum in support which alleged that neither the United
States Attorney nor the United States Attorney General were
properly served under Rule 4 [D.E. 17]. See Fed.R.Civ.P.
12(b)(5), 4(i)(2). On March 20, 2018, Alford responded in
opposition [D.E. 20]. OnMarch25, 2018, this court directed
the government to file a statement updating the court on the
status of Alford's related suit which the Honorable James
C. Fox had remanded to the Merit Systems Protection Board
("MSPB") [D.E. 21]. On April 30, 2018, the
government responded [D.E. 22]. As explained below, the
government's motion to dismiss is denied.
motion to dismiss made under Rule 12(b)(5) objects to a
defect in the act (or lack) of delivery of the summons and
complaint. See, e.g.. 5B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1353
(3d ed. 2004). Proper service "is necessary for the
court to exercise personal jurisdiction over a
defendant." Stout v. Garner Police Dep't.,
No. 5:15-CT-3105-BO, 2016 WL 8650140, at *2 (E.D.
N.C. Aug. 12, 2016) (unpublished), affd 671
Fed.Appx. 218 (4th Cir. 2016) (per curiam) (unpublished); see
Murphy Bros.. Inc. v. Michetti Pipe Stringing.
Inc.. 526 U.S. 344, 350 (1999). Rule 4(i) establishes
the requirements for "[s]erving the United States and
Its Agencies, Corporations, Officers, or Employees."
Fed.R.Civ.P. 4(i). To serve an agency or officer in an
official capacity, 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... or
officer." Fed.R.Civ.P. 4(i)(2). To serve the United
a party must: (i) deliver a copy of the summons and of the
complaint to the United States attorney for the district
where the action is brought... or; (ii) send a copy of each
by registered or certified mail to the civil-process clerk at
the United States attorney's office... [and] send a copy
of each by registered or certified mail to the Attorney
General of the United States at Washington, D.C......
Fed. R. Civ. P. 4(i)(1). These requirements are not mere
formalities. "The United States Attorney and the
Attorney General are the designated legal representatives of
the government that [Alford] is suing." Cobb v. GC
Servs. LP, No. 3:16-3764, 2017 WL 1856176, at *2 (S.D.
W.Va. May 8, 2017) (unpublished).
has submitted affidavits of service for Rosenberg and Cobert,
but not for the Attorney General or for the United States
Attorney. See [D.E. 12, 13]; Fed.R.Civ.P. 4(1)(1); Wise
v. United States Dep't of Agric, No. 4:13-CV-234-BO,
2014 WL 5460606, at *2 (E.D. N.C. Oct. 27, 2014)
(unpublished), affd. 592 Fed.Appx. 203 (4th Cir.
2015) (per curiam) (unpublished). The government's motion
to dismiss for improper service asserts that Alford did not
serve the United States Attorney or the Attorney General
within the 90 days allotted by Rule 4. See [D.E. 17];
response, Alford makes two arguments. First Alford argues
that serving Rosenberg and Cobert is sufficient because
serving process at the Department of Justice gave the United
States notice of her complaint. See [D.E. 20] 2. Although
notice to the defending parties of pending claims is an
"important aspect of service, [notice] is not [its] only
function." Cobb, 2017 WL 1856176, at *2
(collecting cases). This court does not have personal
jurisdiction over the United States or over Rosenberg and
Cobert in their official capacities until the plaintiff
satisfies the requirements of Rule 4 including serving
process on the Attorney General and the United States
Attorney. See Fed.R.Civ.P. 4(i)(1). Alford presents no
evidence that she complied with these requirements. Cf. [D.E.
12, 13]. Accordingly, this argument fails.
Alford argues that this court's order permitting her to
proceed in forma pauperis and directing the United States
Marshal Service ("USMS") to serve summonses
prepared by Alford excuse her from the requirements of Rule
4. See [D.E. 20] 1; [D.E. 4]. "While pro se litigants
sometimes are entitled to leniency, the Supreme Court has...
never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel." Basnight v.
Potter, No. 2:08-CV-27-F, 2009 WL 1810776, at *2 (E.D.
N.C. June 24, 2009) (unpublished) (quotation omitted)
(emphasis in original); see McNeil v. United States,
508 U.S. 106, 113 (1993). However, Rule 4(m) requires a
district court to extend the time for service "if the
plaintiff shows good cause" for why proper service was
not made within 90 days. Fed.R.Civ.P. 4(m); see Robinson
v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010). When a
plaintiff is allowed to proceed in forma pauperis, the
responsibility for serving pleadings falls to the United
States Marshal Service. See 28 U.S.C. § 1915(d);
Jones v. Hashagen, 419 Fed.Appx. 141, 145 (3d Cir.
2011) (per curiam) (unpublished); Olsen v. Mapes,
333 F.3d 1199, 1204 (10th Cir. 2003). In such cases, defects
in service are not attributable to the plaintiff and create
good cause to excuse a failure to serve. See Olsen,
333 F.3d at 1204-05 (collecting cases); Evans v. United
States, No. 4:16-CV-20, 2016 WL 9331286, at *2 (W.D. Va.
Nov. 15, 2016) (unpublished).
asks this court to allow her time to perfect service by
having the United States Marshal Service serve the United
States. See [D.E. 20] 1. This request is proper, and good
cause exists to grant the request. Thus, the motion to
dismiss [D.E. 16] is denied.
the government's motion to dismiss for insufficient
service of process [D.E. 16] is DENIED without prejudice. The
United States Marshal Service is DIRECTED to serve copies of
the summons and complaint on the Attorney General of the
United States and the United States ...