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WAGNER v. ASHCROFT

March 19, 2003

MARJORY T.H. WAGNER, PLAINTIFF,
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, KATHLENE HAWK-SAWYER, DIRECTOR OF FEDERAL BUREAU OF PRISONS, KEVIN D. ROONEY, ASSISTANT DIRECTOR OF ADMINISTRATION, ROBERT J. NEWPORT, CRAIG H. UNGER, JAMES L. ROPELEWSKI, GERALD O. TUFTO, DEMETRESS F. SMITH, JULIETTE D. WHITE, MARY D. JENKINS, MARY F. JENKINS, LULA STRUNK, STEVEN COLGATE, DEPUTY U.S. ATTORNEY GENERAL, DEFENDANTS.



The opinion of the court was delivered by: Howard G. Munson, Senior Judge

MEMORANDUM — DECISION AND ORDER

INTRODUCTION

Presently before the court are plaintiff's motion for default judgment pursuant to Northern District of New York Local Rule ("L. R.") 7.1(b)(3) and defendants' motion to dismiss plaintiff's amended complaint for failure to prosecute pursuant to Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") and L.R. 41.2(b). See Dkt. No. 11, Pl.'s Mot. for Default J. and Dkt. No. 13, Defs.' Mot. to Dismiss, respectively. Defendants oppose plaintiff's motion, inasmuch as they find it premature at this time. Plaintiff opposes defendants' motion. For the reasons that follow below, plaintiff's motion is DENIED, and defendants' motion is GRANTED.

BACKGROUND

On December 29, 1999, plaintiff, Marjory T.H. Wagner, pro se, filed a complaint pursuant to the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 asserting claims arising out of her employment with the Federal Bureau of Prisons.*fn1 See Dkt. No. 1, Compl. On February 7, 2000, the court ordered plaintiff to file an amended complaint within thirty days, which complied with Rules 8 and 10 of the Fed.R.Civ.P. The court warned plaintiff that her failure to allege specific acts of misconduct as to any of the individuals named in any amended complaint would result in dismissal of the complaint with respect to any such individual. See Dkt. No. 4, Order. On March 13, 2000, plaintiff requested an extension of time to file an amended complaint; the court obliged and ordered a sixty-day extension until May 19, 2000. See Dkt. No. 5. On May 19, 2000, plaintiff filed an amended complaint, which Magistrate Judge Gary L. Sharpe found in compliance with the court's February 7, 2000, order. See Dkt. No. 6, Am. Compl. and Dkt. No. 7, Order, respectively. Plaintiff served the Attorney General's Office in Washington, D.C. with a copy of the summons and the amended complaint on or about August 3, 2000. See Dkt. No. 15, Defs.' Mem. of Law in Supp. of Mot. to Dismiss at 1. On October 23, 2000, plaintiff moved pursuant to L.R. 7.1(b)(3) for entry of default judgment. See Dkt. No. 11. At the time plaintiff filed her motion for default judgment, however, she had not provided the United States Attorney's Office for the Northern District of New York with either a complete copy of the summons and the amended complaint or a copy of her motion for default judgment. See Dkt. No. 12. To date, plaintiff has not effected service on defendants.

The United States Attorney's Office first learned of plaintiff's action on January 23, 2001, when a United States District Court Deputy Clerk contacted the office regarding the Attorney General's failure to respond to plaintiff's motion for default judgment. On January 25, 2001, by written response addressed to the court, the United States Attorney's Office noted that plaintiff had not complied with the requirements for service upon the Attorney General under Fed.R.Civ.P. 4(i)(1)(A) and (2)(A), and that there was no proof of service upon the other defendants at that time. See Dkt. No. 15, Defs.' Mem. of Law in Supp. of Mot. to Dismiss at 2. Plaintiff received a carbon copy of this written response. See Dkt. No. 14, Conan Aff. at Ex. 1. Over the next four months, the United States Attorney's Office sent three additional letters addressed directly to plaintiff notifying her that she needed to properly effect service of her complaint in order for her case to proceed. See Dkt. No. 15, Defs.' Mem. of Law in Supp. of Mot. to Dismiss at 2. In its final letter, the United States Attorney's Office advised that defendants would not respond to plaintiff's complaint until plaintiff had provided it with a copy of the summons and amended complaint, and it warned plaintiff that if she failed to respond in writing, it would seek dismissal of her action. See Dkt. No. 12. Defendants subsequently moved to dismiss for failure to prosecute. See Dkt. No. 13, Defs.' Mot. to Dismiss.

On October 22, 2001, plaintiff moved for appointment of counsel. See Dkt. No. 17. On September 27, 2002, Magistrate Sharpe denied, without prejudice to renew, plaintiff's motion for appointment of counsel. See Dkt. No. 22, Order.

DISCUSSION

I. Default Judgment

Plaintiff moves for default judgment alleging that defendants failed to respond to her complaint.*fn2 Plaintiff's motion is premature, for while she served the Attorney General's Office on August 3, 2000, she has yet to serve the United States Attorney's Office for the Northern District of New York as required by Rule 4(i)(2)(A) of the Fed.R.Civ.P., which states in pertinent part: "Service on . . . an officer or employee of the United States sued only in an official capacity, is effected by serving the United States in the manner prescribed by Rule 4(i)(1)." Rule 4(i)(1)(A) states that:

Service upon the United States shall be effected 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 or to an assistant United States attorney . . . or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney.*fn3
Plaintiff mistakenly believes that the court served the United States Attorney's Office with a copy of her complaint and motion for default judgment. Although the court provided courtesy copies of plaintiff's complaint and motion for default judgment to the United States Attorney's Office, it did not effect service on plaintiff's behalf, nor could it have. The court cannot effect service on a party's behalf. Therefore, contrary to plaintiff's assertion, neither the Department of Justice, nor the United States Attorney's Office "ignored" plaintiff's "service," for plaintiff failed to properly serve them. See Dkt. No. 19 at ¶¶ 17 and 18. The court declines to order default judgment against defendants whom plaintiff has not yet served. Accordingly, plaintiff's motion is DENIED.

II. Dismissal Under Rule 4

Defendants move to dismiss pursuant to Rule 4(m) of the Fed.R.Civ.P., which states:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
As described above, plaintiff failed to comply with Rule 4 and has not served defendants. For purposes of dismissal, plaintiff filed her case over three years ago without having since served defendants. As reason for her failure to serve defendants, plaintiff indicates that during her employment with the Bureau of Prisons, "it was drummed into our heads that the Office of the U.S. Attorney and the Department of Justice were one and the same." Dkt. No. 19 at ΒΆ 2. Therefore, plaintiff assumed that when the United States Marshals served the Attorney General's Office, the United States Attorney for the Northern District of New York was also "notified." Id. While the court accepts plaintiff's explanation as to her initial failure to effect proper service, it hardly excuses her continued failure to serve defendants. That plaintiff was not aware of Rule 4's formalities might allow the court to grant her some measure of additional time to properly effect ...

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