                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2004

Veal v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1116




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                                                                       NOT PRECEDENTIAL

                      THE UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                   ___________

                                         No. 03-1116
                                         ___________

                                         ANN VEAL,

                                               Appellant

                                                v.


                             UNITED STATES OF AMERICA;
                               DOVER AIR FORCE BASE


            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF DELAWARE

                               (Civil Action No. 01-cv-00407)
                      District Judge: The Honorable Gregory M. Sleet
                                        ___________

                        Submitted Under Third Circuit LAR 34.1(a)
                                    January 9, 2004

     BEFORE: BARRY and SMITH, Circuit Judges, and POLLAK, District Judge.*

                                   (Filed: January 9, 2004)

                                         ___________

                                 OPINION OF THE COURT
                                      ___________



* The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of Pennsylvania,
sitting by designation.
SMITH, Circuit Judge.


       Appellant Ann Veal challenges the Orders of the District Court of Delaware

granting the United States’ Motion to Dismiss, denying her Motion to Vacate, and

denying her Motion for Re-Argument. The issue raised on appeal is whether the District

Court abused its discretion in dismissing Veal’s case for failure to timely serve the

Attorney General in her suit brought under the Federal Tort Claims Act (“FTCA”). 1 The

United States filed a Motion for Summary Affirmance in this appeal. Because Veal’s

arguments on appeal present a substantial question concerning the interpretation of Rule 4

(as discussed below), the United States’ M otion for Summary Affirmance is denied.

                                             I.

       Ann Veal filed an administrative claim against the United States Air Force on July

20, 2000, pursuant to the FTCA based on injuries she sustained during a May 27, 2000

visit to the Dover Air Force Base Post Exchange. After that claim was denied by the Air

Force, Veal filed a pro se complaint and petition to proceed in forma pauperis with the

United States District Court for the District of Delaware.2 The District Court granted that

petition and the Complaint was filed on June 15, 2001.


  1
   The District Court had jurisdiction pursuant to the Federal Tort Claims Act, 28 U.S.C.
§ 2671, et seq. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
  2
    Although Veal did initially obtain counsel, that counsel resigned prior to the expiration
of the six month limitations period provided for under the FTCA. Veal is now
represented by counsel in this appeal.

                                             2
       On October 23, 2001, the District Court ordered Veal to show good cause why she

had not yet effected service on the defendants. After she explained the reasons for her

delay, the District Court extended the time for Veal to effect proper service until

November 22, 2001. Veal then contacted the Clerk of the District Court, who provided

her “with instructions and forms to be prepared in order to effectuate service.” Veal Br. at

6. On January 7, 2002, Veal served the Dover Air Force Base and the United States

Attorney. The United States filed a motion to dismiss based on Veal’s failure to serve the

Attorney General as required under Federal Rule of Civil Procedure 4(i)(1)(B).3

       The District Court granted the Motion to Dismiss in an Order dated June 26, 2002.

In that Order, the District Court noted that Veal had “not, to date, shown good cause as to

why the time limit for service should be further enlarged.” In granting the Motion to

Dismiss, the District Court stated:

       In consideration of the plaintiff’s pro se status, and the harsh effect that
       would result from a simple dismissal without prejudice, the court will grant
       the United States’ motion to dismiss, but will allow Veal fifteen days to file
       a motion to vacate. Veal should focus her motion on demonstrating good
       cause for her failure to effect proper service of process as required by Rule
       4(i)(1) and Rule 4(m).

       In her Motion to Vacate and her Reply to the United States’ Opposition to that

Motion, Veal explained that (1) she had relied upon the advice of the clerk in attempting



  3
    The United States also based that M otion to Dismiss on the inclusion of Dover Air
Force Base as an improper party to the suit and that the six-month statute of limitations
provided under the FTCA had run before Veal filed her suit. Neither of these bases are
relevant to this appeal, however.

                                             3
to serve the defendants and had been assured that service on the Dover Air Force Base

and the U.S. Attorney was sufficient; (2) she had, since learning of the need to do so,

served the United States Attorney General; (3) her medical condition(s) had impaired her

ability to proceed with the suit; and (4) her written correspondence with the Clerk’s office

had hindered effective communication of the proper procedures for compliance with Rule

4.

         In an August 27, 2002 Order, the District Court denied Veal’s Motion to Vacate,

noting that the Clerk’s Office “has no duty to provide pro se plaintiffs with step by step

guidance in every case,” and that her “failure to read or understand Rule 4 does not

constitute good cause for her failure to effect proper service in compliance with Rule

4(i).” The District Court Judge also concluded that Veal’s medical condition was “neither

so sudden nor so debilitating as to constitute good cause.” Finally, Veal filed a Motion

for Re-Argument on September 5, 2002, which was denied in an Order dated November

6, 2002, for essentially the same reasons.

                                             II.

         We review the District Court’s denial of an extension of time under Rule 4(m) for

abuse of discretion. MCI Telecom. Corp. v. Teleconcepts, Inc., 71 F.3d 1086 (3d Cir.

1995).

         The Third Circuit has construed Rule 4(m) as requiring a court to extend time for

service where the plaintiff demonstrates good cause. McCurdy v. Amer. Bd. of Plastic



                                              4
Surgery, 157 F.3d 191, 196 (3d Cir. 1998). Such a showing requires a demonstration of

good faith on the part of the party seeking enlargement and some reasonable basis for

noncompliance within the time specified by the rule. MCI, 71 F.3d at 1097. Without the

showing of good cause, the decision whether to grant the request for more time in which

to serve, or to dismiss the complaint, “falls squarely within the Court’s sound discretion.”

Id.

       When entertaining a motion to extend time for service,

       [f]irst, the district court should determine whether good cause exists for an
       extension of time. If good cause is present, the district court must extend
       time for service and the inquiry is ended. If, however, good cause does not
       exist, the court may in its discretion decide whether to dismiss the case
       without prejudice or extend time for service.

Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). The Petrucelli

decision clarified that, “the district court must consider whether any other factors warrant

extending time even though good cause was not shown.” Id. at 1307.

                                            III.

       A review of the District Court’s Orders reveals that there is adequate legal and

factual support for the District Court’s good cause determinations. Reliance upon the

Clerk’s advice did not constitute good cause. See Petrucelli, 46 F.3d at 1307. We agree

with the District Court’s conclusion that Veal’s medical conditions were not “so sudden

nor so debilitating as to constitute good cause.” Cf. Habib v. General Motors Corp., 15

F.3d 72, 74 (6th Cir. 1994); Moorehead v. Miller, 102 F.R.D. 834, 836 (D.V.I. 1984).



                                             5
Veal’s failure to read or understand Rule 4 does not excuse her failure to provide timely

service. Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996). Under our deferential

review of the District Court’s determination as to whether Veal made a showing of good

cause, we find no abuse of discretion.

                                             IV.

       A review of the second required step in the District Court’s analysis of the Motion

to Dismiss for failure to effect timely service is more problematic, however. As noted

previously, Petrucelli and its progeny make clear that a district court must consider

whether any other factors warrant extending time even though good cause was not shown.

46 F.3d at 1307; Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997); MCI, 71 F.3d at

1098. The District Court’s orders, granting the Motion to Dismiss, denying the M otion to

Vacate and denying the Motion for Re-Argument, focus entirely on the first step of the

analysis, i.e., whether Veal had shown good cause. The learned District Judge apparently

failed to recognize that, absent a showing of good cause, he still had the discretion to

determine that the time for service could be extended.4 The presence of several factors in

this case which would frequently weigh in favor of exercising such discretion—including

that Veal was a pro se litigant, that the statute of limitations had run on her claim, and that

the service required was of a kind often found to be confusing—highlights the absence of

  4
   The District Judge did express his recognition of the “harsh effect that would result”
from dismissal without prejudice and allowed the plaintiff additional time to show good
cause. Such an allowance is not, however, tantamount to explicitly performing the
required second step of the Petrucelli analysis.

                                              6
this significant and required step in the District Court’s analysis. Finally, the District

Court’s instruction to Veal in the Order Granting the Motion to Dismiss to focus her

motion to vacate on “demonstrating good cause for her failure to effect proper service of

process” confirms that it viewed the bases for granting an extension too narrowly.

Instead of undertaking the second step in the analysis, the District Court simply repeated

the first. In doing so, the District Court abused its discretion. Boley, 123 F.3d at 760.

                                              V.

       For the foregoing reasons, the United States’ Motion for Summary Affirmance is

denied. We will vacate the Order granting the United States’ Motion to Dismiss Pursuant

to Rule 4(m) and remand for further proceedings consistent with this opinion.


TO THE CLERK:
     Please file the foregoing opinion.
                                            By the Court,

                                             /s/ D. Brooks Smith
                                            Circuit Judge




                                              7
