Morrissey v. McAleenan ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PAUL S. MORRISSEY,
Plaintiff,
v. Case No. 1:19-cv-01956 (TNM)
CHAD F. WOLF, Acting Secretary, U.S.
Department of Homeland Security, 1
Defendant.
MEMORANDUM AND ORDER
Plaintiff 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.
Morrissey 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.
1 Chad F. Wolf, the Acting Secretary of Homeland Security, is automatically substituted for
former Acting Secretary Kevin McAleenan. See Fed. R. Civ. P. 25(d).
The 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.” Fed. R. Civ. P. 4(i)(2).
To 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. 1; 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.
That is 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
2
“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.
Second, 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.
That is 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
3
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”).
The 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).
In 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. Id.
Given 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.
4
¶ 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.
Unlike 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.
Recall 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. 2
See Fed. 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.
2 Rule 4(i)(3) provides the requirements for service of “a United States officer or employee sued
in an individual capacity for an act or omission occurring in connection with duties performed on
the United States’ behalf.”
5
Garner, Reading Law: The Interpretation of Legal Texts 107 (2012) (“The expression of one
thing implies the exclusion of others (expressio unius est exclusio alterius)”).
Considering 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 Morrissey a discretionary extension of time to complete service.
For these reasons, it is hereby
ORDERED that Morrissey’s [5] Motion to Reinstate the Case is DENIED.
SO ORDERED.
2019.11.15
15:20:39 -05'00'
Dated: November 15, 2019 TREVOR N. McFADDEN, U.S.D.J.
6