     07-0542-cv
     Kurzberg v. Ashcroft




1                           UNITED STATES COURT OF APPEALS

2                               FOR THE SECOND CIRCUIT

3                                 August Term, 2009

4    (Argued: November 17, 2009                   Decided: August 30, 2010)

5                               Docket No. 07-0542-cv

6                    -------------------------------------

7        SILVAN KURZBERG, PAUL KURZBERG, YARON SHMUEL, OMER GAVRIEL
8                          MARMARI, ODED OZ ELNER,

9                               Plaintiffs-Appellants,

10                                      - v. -

11       JOHN ASHCROFT, FORMER ATTORNEY GENERAL OF THE UNITED STATES,
12        JAMES W. ZIGLAR, FORMER COMMISSIONER OF THE IMMIGRATION AND
13         NATURALIZATION SERVICE, MICHAEL ZENK, FORMER WARDEN OF THE
14   METROPOLITAN DETENTION CENTER, DENNIS HASTY, FORMER WARDEN OF THE
15   METROPOLITAN DETENTION CENTER, JORDAN, BELIEVED TO BE AN EMPLOYEE
16    OF THE FEDERAL BUREAU OF PRISONS, WHOSE TRUE FIRST NAME AND LAST
17     NAME ARE UNKNOWN TO THE PLAINTIFFS, WHO BELIEVE THEY HEARD HIM
18         CALLED JORDAN, MARIO MACHADO, WILLIAM BECK, RICHARD DIAZ,
19        SALVATORE LOPRESTI, STEVEN BARRERE, MICHAEL DEFRANCISCO AND
20      CHRISTOPHER WITSCHEL, BELIEVED TO BE EMPLOYEES OF THE FEDERAL
21    BUREAU OF PRISONS, C. SHACKS, MOSCHELLO, NORMAN, HOSAIN, MOUNBO,
22        M. ROBINSON AND TORRES, FIRST NAMES UNKNOWN, BELIEVED TO BE
23        EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS, RAYMOND COTTON,
24      COUNSELOR BELIEVED TO BE AN EMPLOYEE OF THE FEDERAL BUREAU OF
25                            PRISONS, KEVIN LOPEZ,

26                   Defendants-Cross-Defendants-Appellees,

27   F. JOHNSON, FIRST NAME UNKNOWN, BELIEVED TO BE AN EMPLOYEE OF THE
28                       FEDERAL BUREAU OF PRISONS,

29            Defendant-Cross-Claimant-Cross-Defendant-Appellee,

30     BIRAR, BUCK, T. CUSH, GUSS, D. ORTIZ, J., PEREZ, LIEUTENANTS,
31      FIRST NAMES UNKNOWN, BELIEVED TO BE EMPLOYEES OF THE FEDERAL
32   BUREAU OF PRISONS, JOHN DOES 1-30, METROPOLITAN DETENTION CENTER
33    CORRECTIONS OFFICERS, "JOHN DOE" BEING FICTIONAL FIRST AND LAST
34          NAMES, INTENDED TO BE THE CORRECTIONS OFFICERS AT THE
35       METROPOLITAN DETENTION CENTER WHO ABUSED THE PLAINTIFFS AND
1         VIOLATED THEIR RIGHTS, JOHN ROES 1-30, FEDERAL BUREAU OF
2     IMMIGRATION AND NATURALIZATION SERVICE AGENTS, "JOHN ROE" BEING
3     FICTIONAL FIRST AND LAST NAMES, INTENDED TO BE THE CORRECTIONS
4       OFFICERS AT THE METROPOLITAN DETENTION CENTER WHO ABUSED THE
5                   PLAINTIFFS AND VIOLATED THEIR RIGHTS,

6                               Defendants,

7     DR. LORENZO, FIRST NAME UNKNOWN, BELIEVED TO BE AN EMPLOYEE OF
8        THE FEDERAL BUREAU OF PRISONS, J. MIELES AND JON OSTEEN,

9                      Defendants-Cross-Defendants,

10        LINDA THOMAS, FORMER ASSOCIATE WARD OF PROGRAMS OF THE
11    METROPOLITAN DETENTION CENTER, ROBERT MUELLER, DIRECTOR OF THE
12    FEDERAL BUREAU OF INVESTIGATION, KEVIN LOPEZ, BELIEVED TO BE AN
13   EMPLOYEE OF THE FEDERAL BUREAU OF PRISONS, KATHLEEN HAWK, FORMER
14               DIRECTOR OF THE FEDERAL BUREAU OF PRISONS,

15                          Cross-Defendants.*

16                 -------------------------------------

17   Before:   SACK and WESLEY, Circuit Judges, and KEENAN, District
18             Judge.**

19             Appeal from the dismissal of a Bivens action on the

20   ground that the plaintiffs failed to serve process on the United

21   States through service on the Attorney General of the United



          *
           The Clerk of the Court is directed to amend the caption as
     set forth above. We do not substitute any of the government-
     official defendants in favor of their successors under Federal
     Rule of Appellate Procedure 43(c)(2), because we understand each
     of the defendants in this Bivens action to be sued in his or her
     individual capacity, see, e.g., Higazy v. Templeton, 505 F.3d
     161, 169 (2d Cir. 2007) ("The only remedy available in a Bivens
     action is an award for monetary damages from defendants in their
     individual capacities."), although the plaintiffs have specified
     as much only for some, not all, of the defendants, see Am. Compl.
     ¶¶ 17-59. "[A]ny misnomer [in the caption] that does not affect
     the substantial rights of the parties may be disregarded." Fed.
     R. App. P. 43(c)(2).
          **
            The Honorable John F. Keenan, of the United States
     District Court for the Southern District of New York, sitting by
     designation.

                                     2
1    States by registered or certified mail, as they were required to

2    do under Federal Rule of Civil Procedure 4(i).   We conclude that

3    the district court's obligation to allow the plaintiffs a

4    reasonable time to cure a service failure was satisfied here

5    inasmuch as the defendants informed the plaintiffs of the failure

6    of service, and the plaintiffs had sufficient time thereafter to

7    cure it.   We also conclude that the defendants did not waive the

8    requirement of service on the United States by failing to raise

9    an improper-service defense by motion or in their pleadings.

10              Affirmed.

11                             ROBERT JOSEPH TOLCHIN, Jaroslawicz &
12                             Jaros, LLC, New York, NY, for
13                             Plaintiffs-Appellants.

14                             DENNIS C. BARGHAAN, JR., Assistant
15                             United States Attorney, for Chuck
16                             Rosenberg, United States Attorney, and
17                             Gregory G. Katsas, Acting Assistant
18                             Attorney General, New York, NY, for
19                             Defendant-Cross-Defendant-Appellee John
20                             Ashcroft and Cross-Defendant Robert
21                             Mueller.

22                             DAVID E. BELL, Crowell & Moring LLP,
23                             Washington, DC, for Defendant-Cross-
24                             Defendant-Appellee Dennis Hasty.

25                             Linda Cronin, Dominick Revellino,
26                             and Rocco G. Avallone,
27                             Cronin & Byczek, LLP, Lake Success, NY,
28                             for Defendant-Cross-Defendnat-Appellee
29                             Elizabeth Torres.

30                             Robert Goldman, Esq., New York, NY, for
31                             Defendant-Cross-Defendant-Appellee
32                             William Beck.

33                             Jerold Wolin, Wolin & Wolin Esqs.,
34                             Jericho, NY, for Defendant-Cross-
35                             Defendant-Appellees Sidney Chase,
36                             Michael DeFrancisco, Richard Diaz, and

                                      3
1                             Mario Machado.

2                             Yvonne Shivers, Levitt & Kaizer,
3                             Attorneys at Law, New York, NY, for
4                             Defendant-Cross-Defendant-Appellee
5                             Raymond Cotton.

 6                            James G. Ryan, Elizabeth Iovino,
 7                            and Jennifer A. McLaughlin,
 8                            Cullen and Dykman LLP, Garden City, NY,
 9                            for Defendant-Cross-Defendant-Appellee
10                            Steven Barrere.

11                            Keith M. Sullivan, Sullivan & Galleshaw,
12                            LLP, Middle Village, NY, for Defendant-
13                            Cross-Defendant-Appellee Kevin Lopez.

14                            Barry M. Lasky and Scott L. Steinberg,
15                            Lasky & Steinberg, P.C., Garden City,
16                            NY, for Defendant-Cross-Defendant-
17                            Appellee C. Shacks.

18                            James F. Matthews, Matthews & Matthews,
19                            Huntington, NY, for Defendant-Cross-
20                            Defendant-Appellee Marcial Mundo, III
21                            ("Mounbo").

22                            James J. Keefe, James J. Keefe, P.C.,
23                            Garden City, NY, for Defendant-Cross-
24                            Defendant-Appellee Salvatore LoPresti.

25                            Gary E. Ireland, Law Offices of Gary E.
26                            Ireland, Esq., New York, NY, for
27                            Defendants-Cross-Defendants-Appellees
28                            Christopher Witschel, Hosain, Moschello,
29                            Norman, and for Defendant-Cross-
30                            Claimant-Cross-Defendant-Appellee F.
31                            Jonnson.

32   SACK, Circuit Judge:
33
34             This is an appeal from the dismissal for failure to

35   serve process on the United States of an action brought under

36   Bivens v. Six Unknown Named Agents of the Federal Bureau of

37   Narcotics, 403 U.S. 388 (1971).   The plaintiffs, five Israeli

38   nationals who were illegally present in the United States on


                                       4
1    September 11, 2001, brought the underlying action in connection

2    with certain alleged particulars of their arrest on that day and

3    confinement thereafter at the Metropolitan Detention Center in

4    Brooklyn.    They have since been removed from the United States by

5    the Immigration and Naturalization Service.    The defendants are

6    then-current and then-former officers of the federal government,

7    including former United States Attorney General John Ashcroft,

8    each of whom is sued in his or her individual capacity for

9    actions taken in connection with his or her employment.1

10               Pursuant to Federal Rule of Civil Procedure 4(i), in

11   order to bring a Bivens action against these defendants, the

12   plaintiffs were required to serve process on both the individual

13   defendants and -- because the individual defendants were sued for

14   acts or omissions occurring in connection with their performance

15   of their duties -- the United States.    In order to serve process

16   on the United States, the plaintiffs were required to deliver a

17   copy of the complaint to the United States attorney for the

18   district in which the action was brought and also send a copy of

19   the summons and complaint by registered or certified mail to the

20   Attorney General.    Here, the plaintiffs failed to comply with

21   Rule 4(i) because they did not effect service on the United

22   States.   The plaintiffs failed to do so despite receiving

          1
            The parties dispute whether the United States is also a
     party to this action. See Appellants' Br. 8; Ashcroft Br. 3-4
     n.3. The plaintiffs did not name the United States as a
     defendant in their Amended Complaint. For purposes of this
     appeal, we assume that the United States is not a separate party.
     That question has no bearing on the resolution of this appeal.

                                       5
1    repeated reminders from the defendants that left the plaintiffs

2    with sufficient time to complete service.

3              Several, but not all, of the defendants, including

4    then-Attorney General Ashcroft, moved to dismiss the action for

5    improper service of process.   The United States District Court

6    for the Eastern District of New York (John Gleeson, Judge)

7    granted the motion and dismissed the action in its entirety.    The

8    court rejected the plaintiffs' argument that the Attorney

9    General's waiver of personal service on himself obviated the

10   requirement of service of process on the United States.   The

11   court also determined that the plaintiffs had been afforded a

12   reasonable time to cure their failure to serve, as is required by

13   Rule 4(i).   Upon a motion for reconsideration by the plaintiffs,

14   the court rejected the argument that the action should not have

15   been dismissed against those defendants who had failed to raise

16   an improper service of process defense by motion or pleading.

17   The court concluded that because these defendants did not have

18   the power to waive the requirement of service on the United

19   States, they did not in fact do so.

20             We agree with the district court for substantially the

21   reasons stated in its rulings, and therefore affirm.   We write

22   primarily to make clear, first, that a district court's

23   obligation to allow a plaintiff reasonable time to cure a failure

24   to effect service of process is satisfied if the service failure

25   is called to the plaintiff's attention by the defendant rather



                                      6
1    than the court, provided that the plaintiff has sufficient time

2    thereafter to complete such service; and second, that an

3    individual defendant in a Bivens action lacks the power to waive

4    the requirement of service of process on the United States.

5                                BACKGROUND

6              The plaintiffs filed an Amended Complaint on September

7    21, 2004, asserting a Bivens action against the defendants, then-

8    current and then-former officers of the United States government,

9    including then-Attorney General John Ashcroft.2   At the

10   conclusion of the 120-day period for service of process provided

11   by Federal Rule of Civil Procedure 4(m), they sought a 60-day

12   extension of time in which to serve all of the defendants.    The

13   district court granted the motion.   Ashcroft, through counsel,

14   then wrote a letter to the plaintiffs' counsel waiving personal

15   service insofar as suit was being brought against him in his

16   individual capacity:

17             As you are aware . . . this office [the
18             United States Attorney's Office for the
19             Eastern District of Virginia] is responsible
20             for the representation of Attorney General
21             John Ashcroft, in his individual capacity. I
22             am in receipt of the waiver of service form
23             that you have sent to me, and the instant
24             correspondence concerns the same.



          2
            In addition to damages, the Amended Complaint sought
     injunctive relief that would not be available in a Bivens action.
     See, e.g., Higazy, 505 F.3d at 169 (supra, note 1). However, in
     their papers submitted to this Court the plaintiffs only seek
     damages, and refer to their lawsuit as a Bivens action. [Blue 3]
     Moreover, the district court treated the lawsuit as a Bivens
     action against the defendants in their individual capacities. We
     therefore treat the underlying lawsuit as a Bivens action.
                                     7
1              My client has authorized me to accept your
2              offer, and thus not require a process server
3              to effectuate personal service upon him. As
4              I am sure you understand, my client's
5              decision in this regard in no way should be
6              construed as waiving any cognizable defenses.

7    Letter of Assistant U.S. Attorney Dennis C. Barghaan, Jr. dated

8    Feb. 2, 2005.

9              After the 60-day extension period expired, Ashcroft,

10   through Barghaan, requested permission from the district court to

11   move to dismiss the case on the ground, inter alia, that the

12   plaintiffs had failed to effect proper service.   He argued that

13   the plaintiffs had failed to comply with then-Federal Rule of

14   Civil Procedure 4(i)(2)(B) because they had not served process on

15   the United States through service upon Ashcroft by registered or

16   certified mail and service upon the relevant United States

17   Attorney's Office.

18             In his written statement to the district court on

19   Ashcroft's behalf, which was copied to plaintiffs' counsel,

20   Barghaan set forth in precise terms what the plaintiffs were

21   required to do:   "Pursuant to Federal Rule 4(i)(2)(B), service

22   upon an officer of the United States sued in his individual

23   capacity requires (1) personal service upon the officer; (2)

24   delivering a copy of the summons and complaint to the United

25   State's Attorney's Office for the district in which the action is

26   pending; and (3) sending a copy of the same to the Attorney

27   General via registered or certified mail."   Letter of Assistant

28   U.S. Attorney Dennis C. Barghaan, Jr. to The Honorable John


                                      8
1   Gleeson dated March 25, 2005 (internal quotation marks omitted).3

2   Barghaan explained that although his February 2, 2005 letter had

3   waived service "upon him," id. (emphasis in original), referring

4   to Ashcroft, it had not purported to waive service upon the

5   United States, id.4    One week later, the plaintiffs requested,

6   nunc pro tunc, a second extension of time to serve process on the

         3
             The rule as then in effect provided:
                Service on an officer or employee of the
                United States sued in an individual capacity
                for acts or omissions occurring in
                connection with the performance of duties on
                behalf of the United States -- whether or
                not the officer or employee is sued also in
                an official capacity -- is effected by
                serving the United States in the manner
                prescribed by Rule 4(i)(1) and by serving
                the officer or employee in the manner
                prescribed by Rule 4(e), (f), or (g).

    Fed. R. Civ. P. 4(i)(2)(B) (pre-2007 amendment).

         The "manner prescribed by Rule 4(i)(1)" for serving the
    United States was, in relevant part, as follows:

                (1) Service upon the United States shall be
                effected (A) by delivering a copy of the
                summons and of the complaint to the United
                States attorney for the district in which
                the action is brought . . . and (B) by also
                sending a copy of the summons and of the
                complaint by registered or certified mail to
                the Attorney General of the United States at
                Washington, District of Columbia . . . .

    Fed. R. Civ. P. 4(i)(1) (pre-2007 amendment).
         4
           The February 2, 2005 letter from Ashcroft's counsel to
    plaintiffs' counsel waiving personal service specifically
    referred to personal service by a process server; it did not
    purport to waive any required service by registered or certified
    mail.
                                    9
1    defendants.    The case was then referred to Magistrate Judge

2    Steven Gold in the Eastern District of New York.    The magistrate

3    judge scheduled a status conference and directed the parties to

4    identify "any outstanding issues to be addressed."    Kurzberg v.

5    Ashcroft, No. 04 Civ. 3950, Order, Docket No. 17 (E.D.N.Y. Apr.

6    20, 2005).

7                In response, Ashcroft, together with three other

8    defendants, submitted a letter to the magistrate judge, copied to

9    plaintiffs' counsel via electronic filing, calling attention once

10   again to the issue of service of process on the United States.

11   The letter asserted that the "plaintiffs have not effectuated

12   proper service upon any of [the defendant signatories]" because,

13   inter alia, "Mr. Ashcroft has only waived personal service upon

14   him," and "[s]ervice upon a federal officer sued in his

15   individual capacity . . . [requires] service upon the Attorney

16   General."    Letter of Assistant U.S. Attorney Dennis C. Barghaan,

17   Jr. to The Honorable Steven M. Gold dated April 29, 2005.      At the

18   status conference, the plaintiffs made an oral motion for

19   additional time to accomplish service of process, which the

20   magistrate judge denied without prejudice to the filing of a

21   formal motion to the same effect.

22               The plaintiffs subsequently made a formal motion, under

23   Federal Rule of Civil Procedure 4(i)(3)(A), as then in force,

24   seeking a "reasonable time . . . to cure the failure to serve any

25   defendant who has not been served with process in this action,"

26   or a second extension of time under Federal Rule 4(m) to effect

                                      10
1    proper service.   Pls.' Declaration in Support of Mot. to Enlarge

2    Time to Serve Summons and Complaint, dated May 12, 2005, at 3.

3    In making their motion, the plaintiffs argued that "[t]here is no

4    question that the Attorney General . . . has been served."   Pls.'

5    Mem. of Law in Support of Mot. to Enlarge Time to Serve Summons

6    and Complaint, dated May 12, 2005, at 2.   In response, Ashcroft

7    stated yet again that the plaintiffs' failure to serve the United

8    States was fatal to their claims:

 9              Plaintiffs cannot argue that effecting
10              service upon the Attorney General personally
11              (through a waiver of service form to his
12              individual capacity counsel in Alexandria,
13              Virginia) is sufficient to effectuate service
14              on the Attorney General officially. This
15              Court has held that this third and final
16              element of individual capacity must be
17              fulfilled regardless of whether the Attorney
18              General has been provided with notice of the
19              summons and complaint in some other fashion.
20   Ashcroft's Mem. in Opp. to Pls.' Motion to Enlarge Time to Serve

21   Summons and Complaint, dated May 26, 2005, at 5 n.4 (emphasis in

22   original).   Ashcroft specifically asserted that the plaintiffs

23   "have yet . . . to [direct] a copy of the summons and complaint

24   to the Attorney General via certified or registered mail in the

25   District of Columbia."   Id. at 8 (emphasis in original).

26              The magistrate judge denied the plaintiffs' motion

27   under Rule 4(i)(3)(A), as then in force, for a reasonable time to

28   cure, but granted their motion in the alternative under Rule 4(m)

29   for a discretionary extension of time to accomplish service of

30   process.   See Kurzberg v. Ashcroft, No. 04 Civ. 3950, Memorandum

31   and Order, Docket No. 58 (E.D.N.Y. Dec. 19, 2005).   In denying

                                     11
1    the plaintiffs' request for a reasonable time to cure under then-

2    Rule 4(i)(3)(A), the court concluded that the cure provision only

3    applied to actions governed by then-Rule 4(i)(2)(A).    He reasoned

4    that Rule 4(i)(2)(A) did not govern the plaintiffs' Bivens action

5    because it only governed actions against government officials who

6    were sued in their official, rather than individual, capacities.

7    He was of the view that "service of process on defendants in a

8    Bivens action is governed by Rule 4(e)," id. at 3-4, the generic

9    provision for serving process on individual defendants, which

10   does not require service on the United States, see id..

11              In explaining his decision to grant a discretionary

12   extension of time under Rule 4(m), the magistrate judge referred

13   to, inter alia, the fact that the statute of limitations would

14   preclude the plaintiffs from re-filing their lawsuit should it be

15   dismissed.   See id. at 6-7.   He ruled, however, that "this will

16   be the final extension of time plaintiffs will be granted by this

17   court."   Id. at 7.   The decision gave no indication that the

18   plaintiffs' failure to serve process on the United States was a

19   defect -- and indeed, its conclusion that service of process was

20   governed by Rule 4(e) implied to the contrary.

21              The time period for completion of service extended

22   under Rule 4(m) elapsed without the plaintiffs serving process on

23   the United States through service on the Attorney General by

24   registered or certified mail.    They did, however, attempt to

25   serve the United States three days before the time period expired

26   by sending a copy of the summons and complaint by first-class

                                      12
1    mail to the mailing address for the Attorney General at the

2    Department of Justice; the attempt was insufficient because it

3    did not make use of registered or certified mail.

4              After the time period granted by the court had expired,

5    several of the defendants, including Ashcroft, moved in the

6    district court to dismiss the action on grounds of improper

7    service of process, including failure to serve the United States

8    through service on the Attorney General by registered or

9    certified mail.   The district court (John Gleeson, Judge)

10   dismissed the case with respect to all of the defendants,

11   including those who had not raised an improper service defense by

12   pleading or motion.   See Kurzberg v. Ashcroft, No. 04 Civ. 3950,

13   2006 WL 2738991, 2006 U.S. Dist. LEXIS 68680 (E.D.N.Y. Sept. 25,

14   2006) ("Kurzberg I").   The court rejected the plaintiffs'

15   argument that personal service on the Attorney General, which

16   had, they asserted, been accomplished by Ashcroft's waiver,

17   obviated the need to serve process on the United States because

18   the Attorney General was already aware of the lawsuit.   The court

19   explained that the drafters of Rule 4(i) had been careful to

20   "keep separate officers' individual and official capacities."

21   Id., 2006 WL 2738991, at *5, 2006 U.S. Dist. LEXIS 68680, at *16.

22   "Rule 4(i), by its plain text, requires service both upon the

23   individual defendant and upon the United States officially; one

24   will not suffice for the other."     Id.

25             The district court also rejected the plaintiffs'

26   argument that they were entitled to a reasonable time to cure

                                     13
1    their failure to serve process on the United States.    The

2    district court acknowledged that it was bound, under Rule 4(i),

3    to "'allow a reasonable time to serve process . . . for the

4    purpose of curing the failure to serve . . . the United

5    States . . . if the plaintiff has served an officer or employee

6    of the United States sued in an individual capacity,'" id., 2006

7    WL 2738991, at *6, 2006 U.S. Dist. LEXIS 68680, at *17-18

8    (quoting Rule 4(i)(3)(B)), which the plaintiffs had accomplished

9    by serving Ashcroft in his individual capacity by means of his

10   waiver.   The court concluded, however, that the plaintiffs had

11   already been afforded a reasonable time to cure their failure to

12   serve process on the United States.   It reasoned that the

13   plaintiffs had been given two extensions of time to effectuate

14   proper service of process, one of which was preceded by "repeated

15   statements of defendants' counsel" explicitly underlining the

16   plaintiffs' failure to serve the United States and the steps they

17   had to take in order to effect proper service.   Id., 2006 WL

18   2738991, at *6, 2006 U.S. Dist. LEXIS 68680, at *20.    The court

19   did not mention the implication contained in the magistrate

20   judge's earlier decision that service of process on the United

21   States was not necessary, nor do the plaintiffs appear to have

22   argued to the district court that they relied on that

23   implication.   The district court's dismissal of the case was

24   effectively with prejudice inasmuch as the statute of limitations

25   on the Bivens claim had run.



                                     14
1              The plaintiffs sought partial reconsideration of the

2    court's ruling, arguing that because several of the defendants

3    had not raised a service of process defense by motion or

4    pleading, such a defense had been waived, and dismissal of the

5    case against those defendants was improper.   The court, rejecting

6    that argument, denied the motion.    See Kurzberg v. Ashcroft, No.

7    04 Civ. 3950, 2006 WL 3717535, 2006 U.S. Dist. LEXIS 90900 (Dec.

8    15, 2006) ("Kurzberg II").   The court noted that it was empowered

9    under Rule 4(m) to dismiss an action "upon motion or on its own

10   initiative" for failure to serve process, id., 2006 WL 3717535,

11   at *1, 2006 U.S. Dist. LEXIS 90900, at *4 (internal quotation

12   marks omitted; emphasis in original), and concluded that the

13   requirement of service upon the United States could not be waived

14   by individual defendants in a Bivens action, even though it was

15   in the context of serving such defendants, among others, that

16   service upon the United States was required, id., 2006 WL

17   3717535, at *3-4, 2006 U.S. Dist. LEXIS 90900, at *11-12.   The

18   court reasoned that the United States had an independent interest

19   in being served with process.   "In this atypical case, when

20   service must be made upon a nonparty [the United States] to allow

21   that nonparty to protect its interests, a named defendant's

22   failure to challenge service of process falls outside the domain

23   of [waiver under Federal Rule of Civil Procedure] 12(h)(1)(B)."

24   Id., 2006 WL 3717535, at *4, 2006 U.S. Dist. LEXIS 68680, at *11-

25   12.



                                     15
1              On appeal the plaintiffs argue that they were never

2    given a reasonable time to cure their failure to serve process on

3    the United States because the court did not, before dismissing

4    the action, make a finding of fact that they had failed to serve

5    the United States.   The plaintiffs also contend that dismissal of

6    the action against those defendants who failed to raise a service

7    of process defense by motion or pleading was improper because the

8    defense was thereby waived.    The plaintiffs do not raise the

9    issue whether the magistrate judge's opinion implied that service

10   on the United States was not required or what the significance of

11   any such implication might be.

12                                 DISCUSSION

13             I.   Standard of Review

14             "We review for an abuse of discretion a district

15   court's Rule 4(m) dismissal for failure to serve process."

16   Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir. 2007).5


          5
            The plaintiffs argue that the standard of review is de
     novo because Rule 4(i) was amended after the district court's
     rulings in this case, and therefore this Court's application of
     Rule 4(i), in its current form, to the facts of this case will
     represent the first such application. However, the amendment at
     issue was "intended to be stylistic only." Advisory Committee
     Notes, 2007 Amendment, Rule 4. The plaintiffs' argument is
     therefore without merit, even if we were to analyze this case
     using the current version of the rules rather than that which was
     in place at the time of the district court's rulings.

          The plaintiffs also argue that the standard of review is de
     novo because the cure provision in Rule 4(i) is mandatory. That
     fact does not affect the standard of review. If the district
     court failed to consider the cure provision, that would qualify
     as an abuse of discretion. See, e.g., United States v. Hasan,
     586 F.3d 161, 168 (2d Cir. 2009) (error of law constitutes, in
     effect, abuse of discretion).
                                     16
1               II.   Service of Process under the Federal Rules

2               Rule 4 of the Federal Rules of Civil Procedure governs

3    the service of process in a civil suit.     Because the district

4    court relied upon the pre-2007 incarnation of the rule in the

5    decisions under review, even though, as noted below, the changes

6    were intended as stylistic only, we use that version also in an

7    attempt to avoid confusion.   We include a reference to the

8    corresponding current version of each provision discussed for the

9    convenience of the reader.

10              The district court dismissed the plaintiffs' action

11   pursuant to Rule 4(m).   Under Rule 4(m),

12              [i]f service of the summons and complaint is
13              not made upon a defendant within 120 days
14              after the filing of the complaint, the court,
15              upon motion or on its own initiative after
16              notice to the plaintiff, shall dismiss the
17              action without prejudice as to that
18              defendant . . . . provided that if the
19              plaintiff shows good cause for the failure,
20              the court shall extend the time for service
21              for an appropriate period.

22   Fed. R. Civ. P. 4(m) (pre-2007 amendment).6

23              In general, the method of serving process on an

24   individual is governed by Rule 4(e), which does not require


          6
              The current version of Rule 4(m) reads:

                If a defendant is not served within 120 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 . . . . 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)
                                      17
1    service on the United States even if the individual is a

2    government employee.    Service on an officer or employee of the

3    United States sued in his or her individual capacity for acts or

4    omissions occurring in connection with his or her performance of

5    duties on behalf of the United States, however, "whether or not

6    the officer or employee is sued also in an official capacity,"

7    requires service of process on both the individual being sued and

8    the United States.    Fed. R. Civ. P. 4(i)(2)(B) (pre-2007

9    amendment).7

10               In order to serve process on the United States, a party

11   must deliver a copy of the summons and complaint to the United

12   States Attorney for the district in which the action is brought,

13   and, of particular importance to this appeal, send a copy of the

14   summons and complaint by registered or certified mail to the

15   Attorney General.    See Fed. R. Civ. P. 4(i)(1)(A-B) (pre- and

16   post-2007 amendment).

17               The Federal Rules contain a "cure provision" requiring

18   the district court to allow a party who has failed to serve

19   process on the United States but is required to do so a

20   "reasonable time" to cure such a failure.    See Fed. R. Civ. P.

21   4(i)(3)(B) (pre-2007 amendment) ("The court shall allow a

22   reasonable time to serve process under Rule 4(i) for the purpose

23   of curing the failure to serve . . . the United States in an

24   action governed by Rule 4(i)(2)(B), if the plaintiff has served




          7
              This requirement is now provided in Rule 4(i)(3).
                                       18
1    an officer or employee of the United States sued in his

2    individual capacity.").8

3              III. Whether The Plaintiffs Had a
4                   Reasonable Time to Cure

5              The plaintiffs argue that they were not afforded a

6    reasonable time to cure their failure to serve process on the

7    United States.9   The crux of their argument is that the district

8    court never "officially determined" that their service of process

9    was "in need of being cured."   Appellants' Br. at 18.   The

10   plaintiffs contend that absent such a determination by the

11   district court, there was nothing to cure.    The extensions of

12   time that were granted to the plaintiffs do not constitute time

13   to cure under the Rule because the extensions followed warnings

14   by the defendants, not the court.



          8
            The current version of the "cure provision," Rule 4(i)(4),
     reads, in relevant part: "The court must allow a party a
     reasonable time to cure its failure to . . . (B) serve the United
     States under Rule 4(i)(3), if the party has served the United
     States officer or employee."
     Fed. R. Civ. P. 4(i)(4).
          9
            The defendants urge us to ignore this argument because the
     plaintiffs failed to raise it before the district court. There,
     the plaintiffs argued that Ashcroft's waiver of personal service
     upon him in his individual capacity sufficed for service of
     process on the United States. There is indeed a "general rule
     that an appellate court will not consider an issue raised for the
     first time on appeal." Greene v. United States, 13 F.3d 577, 586
     (2d Cir. 1994); but see id. ("We will [] sometimes entertain
     arguments not raised in the trial court if the elements of the
     claim were fully set forth and there is no need for additional
     fact finding."). But this is an unusual case inasmuch as the
     district court raised, sua sponte, the argument that the
     defendants ask us to ignore, and discussed it at length. The
     argument was thus raised in the district court, albeit not by the
     plaintiffs.
                                     19
1              We disagree.   Nothing in the language of Rule

2    4(i)(3)(A) suggests that a defect in the service of process can

3    be identified for purposes of permitting the plaintiff to cure

4    the defect only by the court.   The Advisory Committee described

5    the cure provision as requiring that "[a] reasonable time to

6    effect service on the United States must be allowed after the

7    failure is pointed out."   Advisory Committee Notes, 2000

8    Amendment, Rule 4.   Had the Committee meant to require that the

9    error be pointed out by the court, it could easily, and surely

10   would, have said so.

11             Other circuits faced with this issue have concluded

12   that notification to the plaintiff by the defendant, rather than

13   by the court, of a defect in the service of process is sufficient

14   to start the clock on the reasonable amount of time afforded to

15   the plaintiff to cure the defect.    See Flory v. United States, 79

16   F.3d 24, 25 (5th Cir. 1996) (per curiam) ("By raising the defense

17   of defective service well within the expiration of the 120-day

18   period allowed for service . . . the United States allowed

19   plaintiff [] time to cure the defect, which she did not do."

20   (emphasis added)); Tuke v. United States, 76 F.3d 155, 158 (7th

21   Cir. 1996) (concluding that cure provision would not avail a

22   plaintiff who failed to serve the Attorney General after being

23   told twice -- once by defense counsel, and once by an incorrect

24   recipient of the summons and complaint, but neither time by the

25   district court -- that his service of process was defective); see

26   also Hawkins v. Potter, 234 F. App'x 188, 189 n.1 (5th Cir. 2007)

                                     20
1    (per curiam) ("There is no legal requirement that a district

2    court notify the party regarding an insufficiency of service

3    before deciding a reasonable time to cure has past. . . .

4    [N]otice from [the] other party [is] sufficient.").

5              We find no authority to the contrary, and reach the

6    same conclusion.   Indeed, if we were to accept the plaintiffs'

7    proposed requirement of an "official determination" by the court

8    that service of process was defective before the cure provision

9    was triggered, this would effectively require that a motion to

10   dismiss for failure to serve process be granted only after such a

11   motion had already been made once and denied for the purpose of

12   affording the plaintiff a reasonable time to cure.    We do not see

13   why, as a practical matter or in the interests of judicial

14   economy, that should be the case.    There is nothing we perceive

15   to be inherently wrong with requiring plaintiffs to adhere to a

16   rule of procedure when their failure to do so has been correctly

17   pointed out by an adversary.

18             We repeat that the plaintiffs do not argue on appeal

19   that they relied on any implication in the magistrate judge's

20   opinion to the effect that service on the United States under

21   Federal Rule of Civil Procedure 4(i) was not required.   The

22   magistrate judge's conclusion that service of process in a Bivens

23   action is governed by Federal Rule of Civil Procedure 4(e) -- a

24   rule that would not require service on the United States -- was

25   incorrect.   But because the plaintiffs do not assert that they

26   relied on that conclusion or its implications in failing to

                                     21
1    effect proper service, we need not decide the significance of the

2    error.   In any event, the plaintiffs concede that they attempted

3    to serve process on the United States through service on Ashcroft

4    by first-class mail three days before the extension of time

5    expired.   In other words, they plainly knew before the "cure"

6    time had run that they were required to serve the United States.

7    Any claim of reliance on the magistrate judge's misstatement, had

8    it been made before us, likely would have been unpersuasive.

9               For the foregoing reasons, we conclude that the

10   district court did not abuse its discretion in holding that the

11   plaintiffs were not entitled to any more time to cure their

12   defective service of process on the United States.

13              IV.   Whether Service of Process on the United States
14                    Was Waived by Certain Defendants

15              The plaintiffs argue that dismissal of their Bivens

16   action against those of the defendants who did not raise the

17   defense of improper service of process by motion or pleading was

18   improper, because that defense was thereby waived as to those

19   defendants.   We conclude, however, that an individual defendant

20   in a Bivens action is incapable of waiving service on the United

21   States under Federal Rule of Civil Procedure 4(i), and thus

22   incapable of waiving such a defense on its behalf.

23              In general, a defense of insufficient service of

24   process is waived if the party wishing to assert it fails to do

25   so by means of a 12(b) motion or in a responsive pleading.     See

26   Fed. R. Civ. P. 12(h)(1).   But it should go without saying that a

27   person without the power to waive cannot effect a waiver.     See
                                     22
1    Zedner v. United States, 547 U.S. 489, 500-01 (2006) (concluding

2    that criminal defendant cannot waive prospective application of

3    Speedy Trial Act because Act protects not only defendant's right

4    to speedy trial, but also "public interest").    The requirement of

5    serving process on the United States in a Bivens action protects

6    interests of the United States separate and apart from those of

7    the individual defendant who may be said to have waived service,

8    intentionally or otherwise.   The Advisory Committee has explained

9    in this context:   "Service on the United States will help to

10   protect the interest of the individual defendant in securing

11   representation by the United States, and will expedite the

12   process of determining whether the United States will provide

13   representation."   Advisory Committee Notes, 2000 Amendment, Rule

14   4 (emphasis added).   Indeed, the government will provide

15   representation for a federal employee in these circumstances only

16   if the Attorney General (or his or her designee) determines "that

17   providing representation would otherwise be in the interest of

18   the United States."   28 C.F.R. § 50.15(a).   Service of process on

19   the United States thus protects the interest of the United States

20   in choosing whether to provide representation to an individual

21   defendant.   Unless we were to reach the unlikely conclusion that

22   the defendant who does not insist on service by the plaintiff on

23   the Unites States forfeits such representation by the government,

24   that interest is not the defendant's to waive.   It was therefore

25   not waived by the defendants here in failing to raise it before

26   the district court.

                                     23
1              If in another case the failure of the defendant to

2    raise the issue in its pleadings or on motion served to mislead

3    the plaintiff into failure to complete service, there might be

4    relief available to the plaintiff.    For the foregoing reasons,

5    however, we do not see how a finding of waiver by the United

6    States would be a form of such relief.

7              V.    Remaining Arguments

8              The plaintiffs also argue that the district court

9    interpreted the pre-2007 cure provision to require only the

10   allowance of a reasonable time to effectuate service in the first

11   place, rather than to cure a failure of service, whereas the

12   post-2007 version of the cure provision requires the allowance of

13   a reasonable time to cure a defect in the service of process.

14   This argument is without merit even were we to apply the current

15   version of Rule 4.    The old version of the rule, applied by the

16   district court, provided that "the court shall allow a reasonable

17   time to serve process . . . for the purpose of curing the failure

18   to serve."   Fed. R. Civ. P. 4(i)(3)(B) (pre-2007 amendment)

19   (emphasis added).    We think it implausible that the district

20   court did not understand that the provision required it to allow

21   the plaintiffs time to cure a failure to serve process.    Plainly,

22   it did.   See Kurzberg I, 2006 WL 2738991, at *6, 2006 U.S. Dist.

23   LEXIS 68680, at *18 (referring to Rule 4(i)(3)(B) as "cure

24   provision").

25                                CONCLUSION



                                      24
1              Serving process on the United States through service by

2    registered or certified mail on the Attorney General might seem,

3    from a practical standpoint, to be nothing more than a formality

4    inasmuch as the Attorney General, who is charged with determining

5    whether the United States will provide representation to

6    individual defendants, was himself an individual defendant in

7    this lawsuit.   That does not, however, excuse noncompliance with

8    the Federal Rules of Civil Procedure.   The district court did not

9    err in so holding.

10             For the foregoing reasons, we affirm the judgment of

11   the district court.




                                     25
