         10-5244
         Arndt v. Napolitano

                                 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.

 1             At a stated term of the United States Court of Appeals for the Second Circuit,
 2       held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
 3       the City of New York, on the 10th day of September, two thousand twelve.
 4
 5       PRESENT:
 6                       GUIDO CALABRESI,
 7                       SUSAN L. CARNEY,
 8                              Circuit Judges.*
 9       ____________________________________________________________
10
11       JOHN D. ARNDT,
12
13                       Plaintiff-Appellant,
14
15                       -v.-                                                         No. 10-5244-cv
16
17       JANET NAPOLITANO, SECRETARY OF THE
18       DEPARTMENT OF HOMELAND SECURITY,**
19
20                       Defendant-Appellee.
21       ___________________________________________________________


                    *
                      The third judge originally assigned to the panel was unable to hear the case because of
            a health issue. In accordance with our local rules, the two remaining members of the panel, who
            are in agreement, have decided the case. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v.
            Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998).
                    **
                        Effective January 2009, Janet Napolitano became Secretary of the Department of
            Homeland Security, succeeding Michael Chertoff. Under Federal Rule of Appellate Procedure
            43(c)(2), Secretary Napolitano is automatically substituted for Secretary Chertoff as defendant in
            this action. The Clerk of Court is directed to amend the official caption as shown above.
 1   FOR APPELLANT:              Richard H. Wyssling, Law Office of Richard H. Wyssling,
 2                               Buffalo, NY.
 3
 4   FOR APPELLEE:               Joseph J. Karaszewski, Assistant United States Attorney,
 5                               for William J. Hochul, Jr., United States Attorney for the
 6                               Western District of New York, Buffalo, NY.
 7
 8          Appeal from the United States District Court for the Western District of New

 9   York (Richard J. Arcara, Judge). ON CONSIDERATION WHEREOF, it is hereby

10   ORDERED, ADJUDGED, and DECREED that the judgment of the District Court

11   be and it hereby is AFFIRMED.

12          Plaintiff-Appellant John D. Arndt, a former employee of the Transportation

13   Security Administration in the United States Department of Homeland Security,

14   sued Defendant-Appellee Michael Chertoff, then Secretary of the Department of

15   Homeland Security, in Secretary Chertoff’s official capacity, alleging discrimination

16   on the basis of plaintiff’s sex in violation of Title VII of the Civil Rights Act of 1964,

17   42 U.S.C. §§ 2000e et seq. Plaintiff appeals from the October 29, 2010 judgment of

18   the district court, which granted defendant’s motion to dismiss pursuant to Federal

19   Rule of Civil Procedure 12(b)(5) for insufficient service of process under Federal

20   Rule of Civil Procedure 4(m). We assume the parties’ familiarity with the

21   underlying facts, procedural history, and the arguments raised on appeal, which we

22   reference only as necessary to explain our decision.

23          “We review for an abuse of discretion a district court’s Rule 4(m) dismissal for

24   failure to serve process.” Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir.

25   2007). Rule 4 provides, in relevant part:


                                                  2
 1          If a defendant is not served within 120 days after the complaint is
 2          filed, the court—on motion or on its own after notice to the
 3          plaintiff—must dismiss the action without prejudice against that
 4          defendant or order that service be made within a specified time. But if
 5          the plaintiff shows good cause for the failure, the court must extend
 6          the time for service for an appropriate period.
 7
 8   Fed. R. Civ. P. 4(m). To serve process on a federal employee sued in an official

 9   capacity, “a party must serve the United States and also send a copy of the

10   summons and of the complaint by registered or certified mail to the . . . employee.”

11   Id. 4(i)(2). To serve the United States, a party must “deliver a copy of the complaint

12   to the United States attorney for the district in which the action was brought and

13   also send a copy of the summons and complaint by registered or certified mail to the

14   Attorney General.” Kurzberg v. Ashcroft, 619 F.3d 176, 178 (2d Cir. 2010); accord

15   Fed. R. Civ. P. 4(i)(1)(A)-(B).

16          Plaintiff, acting through counsel, filed this action on September 26, 2008. On

17   June 15, 2009, several months after the 120-day time period for service of process

18   had expired, the district court entered an order requiring the parties to show cause

19   why the case should not be dismissed for failure to prosecute. In response, on July

20   1, 2009, plaintiff filed an affidavit of service attesting to service of the complaint

21   and summons on defendant Chertoff.1 The United States Attorney’s Office for the

22   Western District of New York sent plaintiff a letter dated July 8, 2009, advising



               1
                  Also on July 1, 2009, plaintiff moved for an entry of default, which the Clerk entered a
        week later. Defendant moved to set aside the entry of default on the ground that plaintiff had
        not properly served defendant insofar as the United States had not been served. On September
        29, 2009, the entry of default was set aside on plaintiff’s consent.


                                                       3
 1   that the summons and complaint had not been served on the United States, as

 2   required by Rule 4(i). On October 19, 2009, defendant filed a motion to dismiss on

 3   various grounds, including insufficient service of process on the United States.

 4   More than one year later, on October 28, 2010, the district court granted that

 5   motion, dismissing the case without prejudice pursuant to Rule 4(m).

 6         Plaintiff concedes that he served neither the U.S. Attorney for the Western

 7   District of New York nor the United States Attorney General, despite the more than

 8   two years that elapsed between when he filed this action and when the district

 9   court granted defendant’s motion to dismiss. Plaintiff further does not contest

10   receipt of the July 2009 letter nor dispute that he was represented by counsel

11   throughout the pendency of this suit and appeal. Nevertheless, he contends that

12   the district court’s decision in October 2010 not to grant him an extension of time to

13   cure these service defects constituted an abuse of discretion. Plaintiff advances

14   several arguments in support of this contention.

15         First, plaintiff maintains that he reasonably believed that service on the

16   United States was not required because the U.S. Attorney for the Western District

17   of New York had actual knowledge of the suit and the Department of Homeland

18   Security was “served appropriately.” Appellant’s Br. at 10. But the plain language

19   of Rule 4 makes clear that serving the United States as provided is mandatory

20   when suing federal officials in their official capacities. See Fed. R. Civ. P. 4(i)(2)

21   (“To serve a . . . United States officer or employee sued only in an official capacity, a



                                                 4
 1   party must serve the United States . . . .” (emphasis added)). Moreover, plaintiff

 2   does not contend—nor does the record reflect—that the Attorney General had any

 3   knowledge of this action that might be alleged to cure the service defect. As noted

 4   above, formal service on both the U.S. Attorney and the Attorney General is

 5   required by Rule 4.

 6          Second, in tension with his first argument, plaintiff urges that he has shown

 7   “good cause” for the service defects because he believed his process server had

 8   served the United States. Even accepting that plaintiff held this belief at some

 9   point after filing this action, it is undisputed that he knew as of July 2009, when

10   the U.S. Attorney’s Office wrote him on this point, that no such service had been

11   made. Indeed, the affidavit of service he submitted in response to the district

12   court’s order to show cause reflected service of defendant Chertoff alone, and the

13   U.S. Attorney’s Office gave plaintiff written notice on multiple occasions between

14   July and October 2009 that the United States had not been—and needed to

15   be—served.2 See Kurzberg, 619 F.3d at 185 (concluding that “notification to the

16   plaintiff by the defendant, rather than by the court, of a defect in the service of

17   process is sufficient to start the clock on the reasonable amount of time afforded to

18   the plaintiff to cure the defect”). Despite the notice he repeatedly received, plaintiff

19   did not move for an extension of time to serve the United States until July 2010,


                2
                    The U.S. Attorney’s Office advised plaintiff of the service defects in its July 8, 2009
        letter, its July 23, 2009 affidavit in support of defendant’s motion to set aside the entry of default,
        and its October 19, 2009 affidavit in support of defendant’s motion to dismiss for, inter alia,
        insufficient service of process.


                                                        5
 1   twenty-two months after initiating this suit. Because plaintiff has not provided any

 2   cognizable excuse for his inaction and delay after the failure was pointed out to him

 3   as early as July 2009, we reject his claim that the district court abused its

 4   discretion in not extending his time to effect service on the United States. See

 5   Zapata, 502 F.3d at 199.

 6         Third, plaintiff asserts that the district court labored under the

 7   misimpression that in the absence of “good cause,” it had no discretion to grant

 8   plaintiff an extension of time to serve the United States. See id. at 196 (holding

 9   that “district courts have discretion to grant extensions even in the absence of good

10   cause”). We disagree. The district court’s opinion reflects no such misimpression.

11   The court simply chose not to exercise its discretion in light of plaintiff’s persistent

12   and acknowledged failure to cure the service defects. See Arndt v. Napolitano, No.

13   08-CV-721A, slip op. at 7 (W.D.N.Y. Oct. 28, 2010) (“In the absence of any good

14   cause from plaintiff as to why this case is already over two years old with service

15   issues still lingering, the Court will not provide any more opportunities to correct

16   procedural defects in this case.”).

17         Fourth, plaintiff contends that the district court erred in failing to consider

18   the impact that a dismissal would have on the parties. See Zapata, 502 F.3d at 197.

19   This contention is without merit. The district court explicitly recognized that

20   although it was dismissing the action without prejudice, the “dismissal may

21   essentially be with prejudice because the relevant limitations period may have



                                                 6
 1   expired.” Arndt, slip op. at 7. The court concluded, however, that “plaintiff’s failure

 2   to effect proper service long after both a general warning from the Court and the

 3   filing of the pending motion outweighs the likely practical consequences of a

 4   dismissal under [Rules] 12(b)(5) and 4(m).” Id. The district court was entitled to

 5   reach, and act on, this conclusion.

 6          On these facts, we find no abuse of discretion in the district court’s dismissal

 7   of this action for insufficient service of process. We have considered plaintiff’s

 8   remaining arguments and conclude that they are without merit. Accordingly, the

 9   judgment of the district court is AFFIRMED.

10
11                                                   FOR THE COURT:
12                                                   Catherine O’Hagan Wolfe, Clerk
13
14




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