time has already run. The hearing was then held on September
13, 1990. At the hearing, Wiesen testified on plaintiffs'
behalves, and Tova Kaplan ("Kaplan"), Para-legal Specialist of
the Communications Office, Civil Division, Department of
Justice, and Linda Kirk ("Kirk"), Case Control Officer of the
Torts Branch, Civil Division, Department of Justice, testified
on the government's behalf. Kaplan and Kirk were the government
employees who allegedly provided plaintiffs' attorneys with the
information regarding the Attorney General's receipt of the
summons and complaint. Upon the conclusion of the hearing, the
Court reserved decision and gave plaintiffs further opportunity
to submit evidentiary matter to support their contentions. This
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
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,
they were informed that it was plaintiffs that had sent the
summons and complaint to that office before the time
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 believed that the memo was
prepared by a secretary rather than the former attorney.
Fourth, the Court notes that the former attorney neither
appeared at the hearing nor submitted an affidavit. In fact,
when asked the name of the former attorney, Wiesen responded
that he didn't know it. Moreover, Wiesen indicated that he had
not even asked Viders, the principal attorney, the name of the
former attorney. The Court finds Wiesen's responses less than
Fifth, Kaplan and Kirk both denied receiving or preparing a
record of any call from Wiesen or his firm within the 120-day
period. The only call Kaplan testified she received from Wiesen
was on March 27, 1990, confirming plaintiffs' March 26, 1990
service of the summons and complaint on the Attorney General's
office. A record of this call was offered into evidence at the
Lastly, Kirk testified that the computer records of the "Case
Tracking System" of the Attorney General's office showed that
the summons and complaint were received at the Attorney
General's office and entered on the system on September 19,
1989, but that they were not served on the Attorney General
until March 26, 1990. She explained that her branch and the CCU
share the same computer system; consequently, they receive the
same case tracking information. Based on her examination of the
Attorney General's record of this action, as reflected in a
one-page computer print-out entitled "Case Synopsis Inquiry"
("CSI"), she testified that prior to March 26, 1990 the CSI
would have shown "00/00/00" in the portion identified "AG Serv
Date:" (indicating date of service on the Attorney General),
signifying no service had been effected up to that point in
time. Thus, until March 26, 1990, there would have been no
basis for someone (whether from her branch, the CCU or
otherwise) viewing the Attorney General's computer record of
the case to believe that the summons and complaint had been
served rather than merely received. She also testified that her
review of the physical litigation file maintained in the case
by the Department of Justice indicated that the complaint
received at the Attorney General's office in September 1989 had
come from the U.S. Attorney's office.
Based on the record, it appears unlikely that plaintiffs'
attorneys called the Attorney General's office before the
120-day period expired. In any event, the evidence reasonably
indicates no more than that plaintiffs' attorneys, if they did
call, were not informed that "service" had been made by
plaintiffs. Consequently, the Court concludes that plaintiffs'
failure to serve the Attorney General within the prescribed
time was the result of inadvertence, oversight or neglect of
counsel. These, however, do not constitute good cause or
neglect as demanded by Rules 4(j) and 6(b), respectively.
Plaintiffs rely on Jordan v. United States, 694 F.2d 833
(D.C. Cir. 1982), which held:
Where the necessary parties in the government
have actual notice of a suit, suffer no prejudice
from a technical defect in service, and there is a
justifiable excuse for the failure to serve
properly, courts should not and have not construed
Rule 4(d)(4) so rigidly or Rule 60(b) so narrowly
as to prevent relief from dismissal. This is
especially true when dismissal signals the demise
of all or some of the plaintiff's claims.
Id. at 836. In Jordan, the summons and complaint were delivered
to the Attorney General rather than the U.S. Attorney because
of an error by the United States Marshals Service. Id. at
835-36. Unlike Jordan, in the present case, as noted above,
plaintiffs have not shown justifiable excuse (or good cause or
excusable neglect) for their failure to make proper service.
Nor was there merely a technical defect in service. Rather,
there was a complete failure to serve the Attorney General
which was occasioned through the neglect or inadvertence of
plaintiffs' counsel. See, e.g., Wei v. Hawaii, 763 F.2d 370,
372 (9th Cir. 1985) (inadvertence of counsel does not qualify
as good cause for failure to comply with Rule 4(j)).
Plaintiffs' failure to show justifiable excuse for not serving
the Attorney General is fatal under the Rule 4(j) "good cause"
standard as well as the Rule 6(b) "excusable neglect" standard.
While the record reveals that the Attorney General was
forwarded a copy of the summons and complaint by the U.S.
Attorney's office, such notice, in and of itself, does not
excuse plaintiffs from complying with Rule 4(d)(4). The
requirements of Rule 4(d)(4) are mandatory. Messenger v. United
States, 231 F.2d 328, 330-31 (2d Cir. 1956).
As for plaintiffs' argument that the government waived its
right to assert the insufficiency of service, to the contrary,
the government raised the defense in its answer which was
served on plaintiffs before the 120-day period expired. At that
point, plaintiffs still had ample time to serve the Attorney
General, but chose instead to reject the answer and seek a
default. Because the Court denied plaintiffs' motion for a
default, the answer was considered properly interposed. Clearly
then, the government raised the defense at its first
opportunity and before the 120 days expired. Thus, the Court is
not faced with a situation where the government's untimely
answer failed to give plaintiffs adequate notice of the
insufficiency of service before expiration of the 120-day
period. Under those circumstances, the Court would be wary of
allowing the government to take advantage of its unexcused
lateness to the plaintiffs' detriment. Moreover, the fact that
the government, after answering the complaint, served
interrogatories and opposed the motion for a default does not
excuse plaintiffs from the requirements of Rule 4(d)(4) and
Although a dismissal under Rule 4(j) is without prejudice,
strict application of Rule 4(j) in the instant case is
tantamount to dismissal with prejudice because the six-month
statute of limitations expired January 19, 1990. See 28 U.S.C. § 2401(b).
Though this result may appear harsh, as plaintiffs
are harmed by their attorneys' neglect, "`litigants are bound
by the conduct of their attorneys, absent egregious
circumstances which are not present here.'" Wei, 763 F.2d at
372 (quoting Kung v. FOM Inv. Corp., 563 F.2d 1316, 1318 (9th
Cir. 1977)). Consequently, because plaintiffs failed to serve
the Attorney General within the 120-day period and have not
shown good cause or excusable neglect in failing to do so, the
complaint is dismissed.
For the reasons above, the government's motion to dismiss is
granted. Accordingly, the complaint is dismissed without
prejudice, and the Clerk of the Court is directed to close the
file in this case.