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September 28, 1990


The opinion of the court was delivered by: Wexler, District Judge.

Plaintiffs Kenneth and Gussie Hegmann, husband and wife, bring this action for alleged malpractice suffered by Kenneth Hegmann at a Veterans Administration Hospital located in Northport, New York. Plaintiffs sue the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671-2680. Presently before the Court is the government's motion to dismiss for plaintiffs' failure to properly serve the United States under Fed.R.Civ.P. 4(d)(4) within 120 days of the filing of the complaint as required by Fed.R.Civ.P. 4(j). For the reasons below, the motion is granted.


The Veterans Administration formally denied plaintiffs' claim on July 19, 1989, and plaintiffs filed their complaint in this Court on August 11, 1989. Plaintiffs thereafter served the United States Attorney for the Eastern District of New York on August 18, 1989, and the Veterans Administration on August 23, 1989. The government filed its answer with this Court on November 28, 1989, and apparently served it on plaintiffs on November 30, 1989, forty-four days after the expiration of the sixty-day period allowed for in Fed.R.Civ.P. 12(a). See Fed.R.Civ.P. 12(a) ("The United States . . . shall serve an answer to the complaint . . . within 60 days after service [of the complaint] upon the United States attorney. . . ."). In its answer, the government raised as a defense plaintiffs' failure to satisfy the requirements of Rule 4(d)(4) governing service of process on the United States. In particular, the government contended that plaintiffs failed to serve the United States Attorney General. See id. 4(d)(4) (service upon the United States includes sending a copy of the summons and complaint "by registered or certified mail" to the Attorney General at Washington, D.C.). At the time plaintiffs received the answer they still had over ten days in which to serve the Attorney General before expiration of the 120-day time limit of Rule 4(j).*fn1 Instead, on November 30, 1989, plaintiffs rejected the answer as untimely and returned it to the U.S. Attorney's office, where it was received December 4, 1989. The government thereafter served interrogatories, dated December 5, 1989, on plaintiffs. Plaintiffs then brought a motion for a default under Fed.R.Civ.P. 55, which was denied by this Court in a Memorandum and Order dated February 13, 1990.

Following a conference on March 20, 1990 before U.S. Magistrate David F. Jordan, at which one of plaintiffs' attorneys, Jay Viders ("Viders"), purportedly represented that he did not know whether the Attorney General had been served, the government informed plaintiffs' attorneys that it confirmed that service was not made, and requested that plaintiffs stipulate to dismiss the action. Plaintiffs refused to enter into the stipulation. When the parties were unable to resolve the service issue at a conference before the Court on March 26, 1990, the government brought the instant motion. Plaintiffs then served the Attorney General on March 26, 1990, more than seven months after the filing of the complaint.

In opposition to the motion, plaintiffs' attorneys initially contended that the Attorney General had been properly served on September 19, 1989. In this respect, by affidavit in opposition to the motion, Viders stated that upon receiving the answer and noting the government's defense of insufficiency of service of process, he contacted the Civil Classifications Unit ("CCU") of the Attorney General's office to verify service. Affidavit of Jay R. Viders dated April 9, 1989, para. 11 [hereinafter Viders' Affidavit]. Viders claimed that he was informed that the "Summons and Complaint was received and logged in Washington, D.C. on September 19, 1989, issued a Department of Justice number, and assigned an attorney from the United States Attorney General's office." Id. In addition, another of plaintiffs' attorneys, Kenneth Wiesen ("Wiesen"), an associate in Viders' office, stated: "Since the file, handled by another attorney no longer with the firm, contains a memo noting service on the Attorney General's Office, however absent proof of service, we contact [sic] the Civil Classifications Unit of the Attorney General's Office to inquire into this issue." Sur-reply Affirmation of Kenneth B. Wiesen dated June 14, 1990, at 3 (emphasis in original). Plaintiffs, however, did not offer proof that such service had occurred. Rather, the government offered proof that it was the U.S. Attorney's office, not plaintiffs, that had in fact forwarded a copy of the summons and complaint to the Attorney General's office in September 1989. At a conference before the Court on June 25, 1990, Wiesen acknowledged that he did not know whether his office had served the Attorney General within the 120-day period. In any event, the parties were given additional time to submit further or supplemental affidavits and briefs on the motion.


As noted above, Rule 4(d)(4) requires, inter alia, service by registered or certified mail on the Attorney General of the United States, and Rule 4(j) requires that service be made within 120 days of the filing of the complaint unless the plaintiff shows good cause why such service was not made within that period. The rule is clear that it is plaintiffs' burden to show good cause. Similarly, as noted above, any extension of the 120 days after the time has run requires plaintiffs to show that the failure to make service was the result of "excusable neglect." See Fed.R.Civ.P. 6(b).

The record reveals that plaintiffs are unable to show that service was made earlier than March 26, 1990. Accordingly, this Court finds that the Attorney General was not served by plaintiffs before March 26, 1990. Indeed, plaintiffs were unable to offer any proof to this effect at the September 13 hearing. Thus, because plaintiffs did not serve the Attorney General within the 120-day period, they must show good cause why service was not made within that time. Similarly, noting plaintiffs' request for an enlargement of the 120-day period, plaintiffs must show that the failure to serve was the result of "excusable neglect."

Besides maintaining that they have shown good cause and excusable neglect, plaintiffs raise two other arguments in opposition to the motion. First, plaintiffs argue that their failure to timely serve the Attorney General is a technical defect which should be excused because the Attorney General had actual notice of the action. Second, they argue that by waiting to challenge the sufficiency of service until March 1990, after expiration of the 120-day period of Rule 4(j), and after the running of the six-month statute of limitations of 28 U.S.C. § 2401(b) (six months from July 19, 1989 being January 19, 1990), the government waived any such objection. Plaintiffs point out that beyond delaying in bringing the motion, the government participated in discovery (by, inter alia, serving interrogatories and accepting plaintiffs' interrogatories) and motion practice (by opposing plaintiffs' motion to strike the answer and for a default made in December 1989). As discussed below, neither of these two arguments is persuasive. Moreover, plaintiffs have failed to demonstrate good cause or excusable neglect.

As for plaintiffs' claim that the failure to serve was based on good cause and excusable neglect, this Court disagrees. Before the September 13 hearing, the record indicated that plaintiffs' attorneys were informed by someone at the CCU only that the summons and complaint were received at the Attorney General's office, and not that plaintiffs were the source of that filing. However, Wiesen testified at the hearing: "I think that they [the Attorney General's office] said that it was — service was made and filing was — I don't remember the exact wording. My impression was that they acknowledged that service and filing had been made on that date." (Tr. 31).*fn2 Notwithstanding this assertion, the evidence presented at the hearing leaves the Court with strong doubts that plaintiffs' attorneys actually did contact the Attorney General's office prior to expiration of the 120-day period, or, if they did, that they were informed that it was plaintiffs that had sent the summons and complaint to that office before the time expired.*fn3

First, though Wiesen referred specifically to plaintiffs' service on the U.S. Attorney and the Veterans Administration in his affirmation (dated four days after the 120-day period expired) in support of plaintiffs' motion for a default, and attached the affidavits of service as exhibits, he made no reference whatsoever to service on the Attorney General. See Affirmation of Kenneth B. Wiesen dated December 15, 1989, paras. 2, 3.

Second, Wiesen was unable to present, either at the hearing or after, telephone bills reflecting the alleged calls to Washington, D.C. within the 120-day period.

Third, Wiesen testified that the memo in the office file, referred to in his affidavit, did not note that service had been made on the Attorney General but had the word "Serve" on it with the words "U.S. Attorney," "Attorney General," and "Veterans Administration" listed below. (Tr. 38).*fn4 In addition, he testified that he ...

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