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McGinnis v. Shalala

decided: August 11, 1993.

ROY MCGINNIS, PLAINTIFF-APPELLANT,
v.
DONNA SHALALA, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE. PEGGY MUSMECI, PLAINTIFF-APPELLANT, V. DONNA SHALALA, SECRETARY DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE.



Appeals from the United States District Court for the Eastern District of Louisiana. D.C. DOCKET NUMBER CA91 2603, JUDGE George Arceneaux, Jr., D.C. DOCKET NUMBER CA-91-2440-E, JUDGE Marcel Livaudais, Jr.

Before Garwood, Jones and Emilio M. Garza, Circuit Judges.

Author: Per Curiam

Per Curiam:

Roy McGinnis (McGinnis), appellant in No. 92-3269, and Peggy Musmeci (Musmeci), appellant in No. 92-3568, both filed suit against the Secretary of Health and Human Services (the Secretary) seeking judicial review of his denial of their claims for disability benefits. In each case, the district court dismissed the action under Federal Rule of Civil Procedure 4(j) for failure to effect service of process within 120 days of the filing of the complaint. The two cases were consolidated for appeal due to the similarity of facts and issues of law. We affirm.

Facts and Proceedings Below

The facts of these cases are sufficiently similar that they can be described in tandem. McGinnis and Musmeci (collectively, appellants) filed their complaints against the Secretary on July 5 and July 17, 1991, respectively. Both were represented by counsel Harry E. Forst. Forst sent copies of the summons and complaints by certified mail to the United States Attorney in New Orleans, the United States Attorney General, and the Secretary. The United States Attorney received these service attempts on or about July 16, 1991 (McGinnis), and July 23, 1991 (Musmeci), and shortly thereafter informed appellants by letter that their attempts at service were defective and that he would not file an answer or other pleading until properly served. Forst had summons reissued in both cases on October 21, 1991, which was still within the 120-day period, but failed to effect proper service on the United States Attorney until December 9, 1991. On December 4, 1991, the Secretary moved to dismiss the actions under Rule 4(j) on the ground that more than 120 days had lapsed since appellants had filed their complaints. Each case was automatically referred pursuant to local rule to a magistrate Judge and thereafter traveled a slightly different path to this Court.

The magistrate Judge reviewing McGinnis' complaint filed a report and recommendation in which she recommended that the government's motion to dismiss be denied. The district court, however, ordered that the government's objections to the report be maintained and granted the government's motion. The magistrate Judge in Musmeci's case issued a finding and recommendation recommending that the government's motion to dismiss be granted. The district court adopted the recommendation and dismissed Musmeci's complaint. Both McGinnis and Musmeci timely appealed their dismissals.

Discussion

Rule 4(j) of the Federal Rules of Civil Procedure provides:

"If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion."

It is undisputed in this case that appellants failed properly to serve process within the 120-day period. Rule 4(d)(4) requires inter alia that in suits against the United States a copy of the summons and complaint be delivered to the United States Attorney for the district in which the action is brought (and a copy properly mailed to the Attorney General in Washington, D.C.). "Service" by mail on the United States Attorney does not suffice under Rule 4(d)(4). Prisco v. Frank, 929 F.2d 603 (11th Cir. 1991); McDonald v. United States, 898 F.2d 466 (5th Cir. 1990). Thus, appellants failed properly to serve the United States Attorney when they sent their summons and complaints by certified mail. Appellants do not dispute this. When they finally did effect proper service on December 9, 1991, the 120-day period had long expired, as both suits were filed in mid-July of 1991.

Appellants argue that, because they had good cause for failing to effect timely service of process, it was error for the district courts to dismiss their complaints. They also argue that the government waived any defect in service. Finally, Musmeci (only) argues that, because the magistrate Judge in her case presided as an Article III Judge under 28 U.S.C. § 636(c), the district court lacked jurisdiction to consider a matter appealable to this Court. Each of these arguments lacks merit.

Under Rule 4(j), dismissal of a plaintiff's complaint is required in the absence of a showing of good cause why service was not timely made. Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985). In such cases, the plaintiff bears the burden of proving good cause. Id. at 1305. We review a district court's ruling as to the absence of good cause for abuse of discretion only. McDonald, 898 F.2d at 468; George v. United States Department of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986).

Appellants' counsel argues that the good cause requirement is satisfied in this case because he acted in good faith at all times and because he had the summons and complaints reissued before the expiration of the 120-day period and gave them to his secretary to serve. We cannot agree. We have said that good cause "would appear to require at least as much as would be required to show excusable neglect," Winters, 776 F.2d at 1306 (original emphasis), and that "actions falling into the category of inadvertence, mistake or ignorance of counsel are not excusable neglect and do not establish good cause for extending the 120 day period for service." Traina v. United States, 911 F.2d 1155, 1157 (5th Cir. 1990); accord McDonald, 898 F.2d at 467; Winters, 776 F.2d at 1306.*fn1 We have also sustained dismissals for defective service on grounds that the plaintiff received adequate notice of the defect. Traina, 911 F.2d at 1157; Systems Signs Supplies v. United States Dep't of Justice, 903 F.2d 1011, 1013-14 (5th Cir. 1990). Here, appellants' counsel learned that his initial efforts at service of process were defective soon after the United States Attorney received the complaints and summons. Yet he waited months before he had the summons reissued on October 21, 1991. Even then, he still had three weeks to serve process, but failed to do so. That appellants' counsel had instructed his secretary to serve the papers upon the United States Attorney (explained as a desire to avoid the cost of hiring a process-server) is surely not good cause or (even) excusable neglect. The record reflects that the United States Attorney's office in New Orleans is ...


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