14-2396-cv
Mares v. United States


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of October, two thousand fifteen.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                                 Circuit Judges,
                 KIYO A. MATSUMOTO,
                                 District Judge.*
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PETER MARES,
                                 Plaintiff-Appellant,

                         v.                                              No. 14-2396-cv

UNITED STATES OF AMERICA, UNITED STATES
CUSTOMS AND BORDER PROTECTION, JEH
CHARLES JOHNSON, Secretary of the Department of
Homeland Security, STEVEN BUNNELL, General
Counsel of the Department of Homeland Security,
SCOTT K. FALK, Chief Counsel of the Customs and
Border Protection Agency, KEVIN K. McALEENAN,
Deputy Commissioner of the Customs and Border
Protection Agency, J. BELL, Border Patrol Agent, Z.
MEVIOR, Border Patrol Agent, M. DION, Border Patrol


*
 The Honorable Kiyo A. Matsumoto, of the United States District Court for the Eastern
District of New York, sitting by designation.

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Agent, JOHN AND JANE DOES 1–10,
                                 Defendants-Appellees.
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                         JOSE ENRIQUE PEREZ, Law Offices of Jose
                                                 Perez, P.C., Syracuse, New York.

APPEARING FOR APPELLEES:                         MICHAEL S. CERRONE, Assistant United
                                                 States Attorney, for William J. Hochul, Jr.,
                                                 United States Attorney for the Western District
                                                 of New York, Buffalo, New York.

        Appeal from a judgment of the United States District Court for the Western

District of New York (Charles J. Siragusa, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on June 6, 2014, is AFFIRMED.

        Plaintiff Peter Mares appeals from the dismissal of his complaint without

prejudice pursuant to Fed. R. Civ. P. 12(b)(5) and 4(m) for failure timely to serve

process.     See Mares v. United States, No. 13-CV-6187 (CJS), 2014 WL 2531964

(W.D.N.Y. June 5, 2014). On appeal, Mares does not dispute that he failed to serve the

United States, as required to maintain suit against the United States and its officials in

their official or individual capacities. Rather, he challenges the district court’s denial of

an extension of time to complete service under Rule 4(m), which decision we review for

abuse of discretion. See Gerena v. Korb, 617 F.3d 197, 201 (2d Cir. 2010) (observing

that abuse of discretion occurs when ruling is based on error of law or clearly erroneous

view of evidence, or cannot be located within range of permissible decisions).              We

assume the parties’ familiarity with the facts and the record of prior proceedings, which

we reference only as necessary to explain our decision to affirm.

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1.     Service of Process on the United States and Its Officers and Employees

       To serve a federal officer or employee in his official or individual capacity, a

plaintiff must serve both the United States and the officer or employee, as provided in

Fed. R. Civ. P. 4(i). To serve the United States, a plaintiff must send by registered or

certified mail a copy of the summons and complaint both to the United States Attorney

General and to the United States Attorney for the district in which the action is brought.

See id. The rule requires a district court to “allow a party a reasonable time to cure its

failure to” comply with these provisions if certain conditions are met. See Fed. R. Civ.

P. 4(i)(4); Kurzberg v. Ashcroft, 619 F.3d 176, 184–85 (2d Cir. 2010). Moreover,

       [i]f a defendant is not served within 120 days after the complaint is filed,
       the court . . . must dismiss the action without prejudice against that
       defendant or order that service be made within a specified time. But if the
       plaintiff shows good cause for the failure, the court must extend the time
       for service for an appropriate period.

Fed. R. Civ. P. 4(m). Although an extension of time is required when good cause has

been shown (including when the conditions of Rule 4(i)(4) are met, see Fed. R. Civ. P. 4

advisory committee’s note to 1993 amendment), a district court has wide latitude in

deciding when to grant extensions absent good cause. See Zapata v. City of New York,

502 F.3d 192, 195–96 (2d Cir. 2007). Factors relevant to the exercise of this discretion

include, inter alia, the relative prejudice to the parties (including whether the action

would be barred by the statute of limitations and whether defendant had actual notice of

the suit) and whether there is a “justifiable excuse” for the failure properly to serve.

See, e.g., id. at 197–99.



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2.     Application

       Mares does not dispute that he failed to serve the United States under Rule 4(i)(1)

and, thus, failed to effect proper service on any of the defendants in the case. See Mares

v. United States, 2014 WL 2531964, at *5 (explaining specific deficiencies in service

with respect to each defendant). Nor does he argue that good cause for the failure

required an extension under Rule 4(m). Rather, he challenges the district court’s denial

of a discretionary extension in the absence of good cause, arguing that the defects in

service were merely technical and that the government was partially responsible for those

defects because it did not timely inform Mares of the issue.

       At the outset, we note that, at Mares’ urging, the district court framed its

discretionary inquiry by reference to Zankel v. United States, 921 F.2d 432 (2d Cir.

1990). Indeed, Mares continues to rely on Zankel as the relevant authority on appeal.

Zankel identified four factors that would allow a district court to excuse a technical defect

in serving the United States and its officers in the absence of good cause:

       If (1) necessary parties in the government have actual notice of a suit;
       (2) the government suffers no prejudice from a technical defect in service;
       (3) there is a justifiable excuse for the failure to serve properly; and (4) the
       plaintiff would be severely prejudiced if the complaint were dismissed, then
       courts should not construe Rule 4(d)(4) [Rule 4(i)’s predecessor] so rigidly
       as to deny plaintiffs relief from dismissal because of a technical defect in
       service.

Id. at 436 (internal quotation marks omitted); see McGregor v. United States, 933 F.2d

156 (2d Cir. 1991) (construing Zankel). Treating these factors as requirements, the

district court denied Mares an extension because, although he satisfied the first and fourth



                                              4
elements, he did not satisfy the second and third. See Mares v. United States, 2014 WL

2531964, at *8.

      Zankel, however, was decided before the 1993 amendments to the Federal Rules

of Civil Procedure, which in Rule 4(m) afford district courts broad discretion to grant

extensions absent good cause. See Zapata v. City of New York, 502 F.3d at 197; see

generally Henderson v. United States, 517 U.S. 654, 662–63 (1996).            Thus, strict

satisfaction of the four Zankel requirements is no longer necessary. See, e.g., Goldblatt

v. Nat’l Credit Union Admin., 502 F. App’x 53, 55 (2d Cir. 2012) (summary order)

(recognizing Zapata as superseding Zankel standard).        Rather, a district court may

extend the time to serve if, after balancing the relative prejudice to the parties and

considering all relevant factors, it concludes that such an extension is justified. See,

e.g., Zapata v. City of New York, 502 F.3d at 198–99.

      On appeal, Mares does not argue that the district court erred in applying Zankel to

his case and, thus, we do not pursue that point further. See Gross v. Rell, 585 F.3d 72,

95 (2d Cir. 2009) (stating that arguments not raised in principal brief on appeal are

deemed waived). Instead, he faults the district court for concluding that he failed to

satisfy the third factor: “justifiable excuse” for his failure timely to serve. The record

admits no such error. Mares offers no excuse for his service failure. Rather, he faults

the government for failing to move for dismissal before the statute of limitations expired.

But the statute of limitations here expired five days after Mares filed suit, and the

government could not have successfully moved to dismiss before the expiration of

Mares’ 120-day window to serve. By the end of the 120 days, the statute of limitations

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had expired and Mares was unable to refile. See Appellant’s Br. 14 (conceding that

“[b]ecause the complaint was filed just days before the statute of limitations expired, the

claims are now time barred”); Compl. (filed Apr. 11, 2013); id. ¶¶ 27 (listing Apr. 16,

2010, as date of alleged constitutional torts). In these circumstances, defendants can

hardly be charged with unduly delaying their motion to dismiss to take advantage of the

statute of limitations. Cf. Zankel v. United States, 921 F.2d at 434–35, 437 (describing

government conduct that “lulled” plaintiffs into believing service was complete until

statute of limitations had run).

       This is not to say that a district court can never grant an extension in the absence

of a justifiable excuse. See Zapata v. City of New York, 502 F.3d at 198 n.7. But this

court has indicated that we will not disturb a district court’s dismissal for untimely

service absent a plaintiff’s showing of a colorable excuse for his neglect. See id. at 198.

As the plaintiff has not made such a showing here, we identify no abuse of discretion

warranting vacatur.

       We have considered Mares’ remaining arguments, and we conclude that they are

without merit. Accordingly, the district court’s judgment of dismissal is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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