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Torres v. Colvin

United States District Court, D. Arizona

July 30, 2014

Jose Carlos Guerrero Torres, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

ORDER

LAWRENCE O. ANDERSON, Magistrate Judge.

This Social Security appeal is again before the Court on the Plaintiff's Motion to Allow Plaintiff to Proceed with Claim. (Doc. 20) Despite acknowledging that he has not fully complied with the service requirements on the "United States" pursuant to Rule 4(i), Plaintiff invites the Court "[t]o allow the case to move forward on its merits and direct Defendants to file their Answer. ( Id. at 2) Despite established authority to the contrary, Plaintiff has not provided the Court with any case law or other authority that a district court may disregard Rule 4's formalities for service of process when an unserved defendant purportedly has actual notice of an action or appeal.[1] The Court declines Plaintiff's invitation to disregard the formalities of service, but will generously construe Plaintiff's motion as requesting another extension of time to effectuate valid service. (Doc. 16) The Commissioner of the Social Security Administration ("SSA") has not appeared in this District Court matter to date.[2]

I. Background

Plaintiff filed a complaint on November 11, 2013, appealing the Commissioner's adverse ruling at the administrative level of his claim for Social Security disability benefits. (Doc. 1) Plaintiff requested in forma pauperis status so he could proceed without prepaying a filing fee or service-of-process costs. (Doc. 2) After screening the complaint pursuant to 28 U.S.C. § 1915(e)(2), the Court ordered Plaintiff to file an amended complaint because it failed to state a claim upon which relief could be granted. (Doc. 6) Plaintiff consented to magistrate-judge jurisdiction on December 3, 2013, and filed a timely amended complaint on December 9, 2013. (Docs. 7-8) Upon his counsel's request that Plaintiff be responsible for service of the summons and complaint, which is contrary to Rule 4(c)(3), Fed.R.Civ.P., the Court ordered that Plaintiff be responsible for service of process on the Commissioner. (Doc. 9)

After issuing a Rule 16 scheduling order, the Court ordered Plaintiff to take certain actions, on or before May 30, 2014, or this appeal would be dismissed without prejudice for lack of prosecution or failure to serve process within 120 days per Rule 4(m) without further notice. (Doc. 15) In a prompt response to the Court's May 19, 2014 Order to Show Cause, Plaintiff moved for an extension of time to serve process, explaining various challenges several attorneys encountered in representing Plaintiff and attempting to timely serve process. (Doc. 16) Plaintiff requested a 6-day extension of time to serve process, representing these challenges resulted in the "Defendants" being served with the amended complaint "[o]n March 17, 2014 - six days after the 120 days expired on March 11, 2014." ( Id. at 1, Exhs. 1 and 2). The Court found that "excusable neglect resulted in Plaintiff's failure to serve the Commissioner within 120 days after the complaint was filed." (Doc. 17 at 3) The Court granted Plaintiff an extension to serve the Commissioner and retroactively extended the service-of-process deadline to March 17, 2014, the date Plaintiff's counsel requested. ( Id. ) In its Order, the Court did not express an opinion whether Plaintiff had lawfully served the Commissioner pursuant to Rule 4(i), Fed.R.Civ.P.

On July 3, 2014, Plaintiff filed the pending motion, indicating that Plaintiff served the Office of General Counsel and the United States Attorney General on March 17 and March 25, 2014, respectively. (Doc. 20 at 1) He indicates that "[u]nfortunately, summons were (sic) not issued to the civil process clerk at the Attorney General's office by mistake." ( Id. ) Plaintiff represents the "Attorney General's" office in Phoenix was notified of the case by phone call on May 19, 2014, and that "[t]wo out of three of the agencies have been served and the Attorney General's office in Phoenix is well aware of the case[, but] [t]he Attorney General's Office has indicated to Plaintiff's attorneys that they will not waive the final service of process." ( Id. at 2) According to Plaintiff, "[d]elaying the case further or dismissing the case would harm only Plaintiff... Therefore, we ask the Court to allow the case to move forward on its merits and direct Defendants to file their Answer." ( Id. )

II. Service of Process

A. Generally

"A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4." Benny v. Pipes , 799 F.2d 489, 492 (9th Cir. 1986) (citation omitted); see also S.E.C. v. Ross , 504 F.3d 1130, 1138 (9th Cir. 2007). "Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." United Food & Commercial Workers Union v. Alpha Beta Co. , 736 F.2d 1371, 1382 (9th Cir. 1984) (citations omitted). "Indeed, the purpose of service is to give the defendant notice of the institution of the proceedings.'" Sweeney v. Darricarrere , 2009 WL 2132696, at *4 (D. Ariz. July 14, 2009) (quoting Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure , Civil 3d § 1094 at 511). "However, Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc ., 840 F.2d 685, 688 (9th Cir. 1988) (citation and internal quotation marks omitted). "Nonetheless, without substantial compliance with Rule 4 neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction." Id. (citation and internal quotation marks omitted).

B. Extensions of Time to Serve Process

Federal Rule of Civil Procedure 4(m) provides that an action against a defendant shall be dismissed without prejudice if that defendant is not served with a copy of the summons and complaint within 120 days after the filing of the complaint, unless the plaintiff can show good cause why service was not made within the 120 day period. The 120-day rule "is intended to force parties and their attorneys to be diligent in prosecuting their causes of action." Townsel v. Contra Costa Cnty ., 820 F.2d 319, 320 (9th Cir. 1987).

An appeal to a district court from an adverse ruling on a Social Security benefits claim may be dismissed for failure to properly serve the Commissioner. See White v. Commissioner of Social Sec ., 2014 WL 1027523 (E.D. Cal. March 17, 2014); Bodner v. Colvin , 2014 WL 1577477 (D. Nev. April 17, 2014); Synnestvedt v. Astrue , 2010 WL 125649 (W.D. Okla. Jan. 7, 2010). Where service is made properly on the United States Attorney, but the complaint names the organization of the United States being sued instead of the United States, service is still proper upon the United States. Doe v. Hagee , 473 F.Supp.2d 989 (N.D. Cal. 2007).

A district court has broad discretion in deciding whether to extend the time for service of process. U.S. v. 164 Watches, More or Less Bearing on Registered Trademark of Guess? Inc ., 366 F.3d 767, 772 (9th Cir. 2004); In re Sheehan , 253 F.3d 507, 513 (9th Cir. 2001). A district court may, for instance, extend time for service retroactively after the 120-day service period has expired. See Mann v. American Airlines , 324 F.3d 1088, 1090 (9th Cir. 2003). If the court does not find good cause to extend time for service as contemplated under Rule 4(m), a court may nevertheless extend the time for service upon a showing of excusable neglect. Lemoge v. U.S. , 587 F.3d 1188, 1198 (9th Cir. 2009) (citing In re Sheehan , 253 F.3d at 512-14). Factors to consider in the exercise of that wide discretion are, inter alia , whether ...


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