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Kurzberg v. Ashcroft

September 25, 2006

SILVAN KURZBERG, PAUL KURZBERG, YARON SHMUEL, OMER GAVRIEL MARMARI, AND ODED OZ ELMER, PLAINTIFF,
v.
JOHN ASHCROFT, FORMER ATTORNEY GENERAL OF THE UNITED STATES, JAMES W. ZIGLAR, FORMER COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE, MICHAEL ZENK, FORMER WARDEN OF THE METROPOLITAN DETENTION CENTER, DENNIS HASTY, FORMER WARDEN OF THE METROPOLITAN DETENTION CENTER, KATHLEEN HAWK, FORMER DIRECTOR OF THE FEDERAL BUREAU OF PRISONS, LINDA THOMAS, FORMER ASSOCIATE WARDEN OF THE METROPOLITAN DETENTION CENTER, ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, KEVIN LOPEZ, S. CHASE, MARIO MACHADO, WILLIAM BECK, RICHARD DIAZ, C. SHACKS, SALVATORE LOPRESTI, STEVEN BARRERE, J. MIELES, MICHAEL DEFRANCISCO, MOUNBO [SIC], M. ROBINSON, TORRES [SIC], RAYMOND COTTON, NORA LORENZO, LIEUTENANT BIRAR, LIEUTENANT BUCK, LIEUTENANT T. CUSH, LIEUTENANT GUSS, LIEUTENANT D. ORTIZ, AND LIEUTENANT J. PEREZ, BELIEVED TO BE EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS, JOHN DOES 1-30, BEING FICTIONAL FIRST AND LAST NAMES, CORRECTIONS OFFICERS AT THE METROPOLITAN DETENTION CENTER, JOHN ROES 1-30, BEING FICTIONAL FIRST AND LAST NAMES, FEDERAL BUREAU OF INVESTIGATION AND /OR IMMIGRATION AND NATURALIZATION SERVICE AGENTS, AND THE UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

The plaintiffs are five Israeli nationals who were illegally present in the United States on September 11, 2001. They allege they were arrested that day on immigration violations and detained thereafter in the Metropolitan Detention Center in Brooklyn until they were eventually deported. Their allegations are strikingly similar to those in Elmaghraby v. Ashcroft, 2005 WL 2375202 (E.D.N.Y. 2005), and Turkmen v. Ashcroft, 2006 WL 1662663 (E.D.N.Y. 2006); indeed many are lifted verbatim from those complaints. Unlike in those cases, however, I have no occasion to turn to the merits of the plaintiffs' claims, for despite having been given generous extensions of time in which to effect proper services of process upon the United States, the plaintiffs' counsel has failed to do so. Specifically, counsel has been steadfast in his refusal to serve the United States by registered or certified mail, as required by the governing rule of procedure. As a result, the action is dismissed.

BACKGROUND

The plaintiffs filed the initial complaint in this matter on September 13, 2004, and then filed an amended complaint on September 21, 2004. On January 11, 2005 -- the last of the 120 days allowed for service of process under Fed. R. Civ. P. 4(m) -- the plaintiffs' counsel sought an additional 60 days in which to effect service because doing so had "proved more difficult than ... anticipated ...." That request was granted on January 14, 2006, and the plaintiffs soon made some headway: On February 2, 2005, counsel for defendant John Ashcroft wrote a letter to plaintiffs' counsel agreeing to waive personal service upon Ashcroft:

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

My client has authorized me to accept your offer, and thus not require a process server to effectuate personal service upon him. As I am sure you understand, my client's decision in this regard in no way should be construed as waiving any cognizable defenses.

Letter of Assistant U.S. Attorney ("AUSA") Dennis C. Barghaan, Jr. dated February 2, 2005.

On March 25, 2005, however, more than a week after the plaintiffs' 60-day extension had expired, Ashcroft's counsel filed a letter requesting permission to move to dismiss on the ground, among others, that the plaintiffs had failed to effectuate proper service. Specifically, AUSA Barghaan observed that proper service in the case required more than personal service on Ashcroft, and plaintiffs' counsel had not taken the required steps:

[P]laintiffs have failed to effectuate proper service of process upon the former Attorney General. Pursuant to Federal Rule 4(i)(2)(B), service upon an officer of the United States sued in his individual capacity requires (1) personal service upon the officer; (2) "delivering a copy of the summons and complaint" to the United States Attorney's Office for the district in which the action is pending; and (3) "sending" a copy of the same to the Attorney General via "registered or certified mail." Although the former Attorney General has agreed to waive service upon him, it is undersigned counsel's understanding that plaintiffs have not accomplished the final two service requirements.

Letter of AUSA Barghaan dated March 25, 2005. It was not until a week after that letter, and 20 days after the extended deadline for service had passed, that the plaintiffs' counsel requested, nunc pro tunc, a further "modest" extension of time, again because "difficulties were encountered," including that "many of the defendants are government employees whose whereabouts have been difficult to ascertain." Letter of Robert Tolchin dated April 4, 2005.

On April 20, 2005, this case was reassigned from Magistrate Judge Cheryl Pollak to Magistrate Judge Steven Gold because Judge Gold was already handling the Elmaghraby and Turkmen cases. Judge Gold set all three cases down for a joint status conference shortly thereafter, and directed the parties to identify "any outstanding issues that need to be addressed" at the conference. Ashcroft, Mueller, Ziglar and Hawk-Sawyer filed a joint letter, again calling attention to the deficient service of process: "Plaintiffs have not effectuated proper service of process upon any of these individuals; indeed, plaintiffs have not effectuated any service upon Messrs. Mueller and Ziglar .... Mr. Ashcroft has only waived personal service upon him." Letter of AUSA Barghaan dated April 29, 2005. A footnote to that statement reminded plaintiffs' counsel that "[s]ervice upon a federal officer sued in his individual capacity for acts taken 'in connection with the performance of duties on behalf of the United States' has three components: (1) personal service on the officer; (2) service upon the relevant United States Attorney's Office; and (3) service upon the Attorney General. Fed. R. Civ. P. 4(i)(2)(B)." Id. at n.1. At the subsequent status conference, Judge Gold ruled that the "Kurzburg plaintiffs' oral motion for additional time to accomplish service [is] denied without prejudice to [their] submit[ting] a formal motion seeking that relief." Order of May 9, 2005.

On May 12, 2005, the plaintiffs filed such a motion, seeking, pursuant to Fed. R. Civ. P. 4(i)(2)(B)(3), "a reasonable time ... to cure the failure to serve any defendant who has not been served with process in this action," Pl. Notice of Motion, and alternatively, pursuant to Fed. R. Civ. P. 4(m), a second enlargement of time in which to effectuate proper service. The plaintiffs argued that because "[t]here is no question that the Attorney General of the United States has been served," that a reasonable time to cure the failure of service was mandatory under Rule 4(i)(2)(B)(3). In response, after again reciting the requirements of Rule 4(i)(2)(B), Ashcroft explained:

Plaintiffs cannot argue that effecting service upon the Attorney General personally (through a waiver of service form to his individual capacity counsel in Alexandria, Virginia) is sufficient to effectuate service on the Attorney General officially. This Court has held that this third and final element of individual capacity service must be fulfilled regardless of whether the Attorney General has been provided with notice of the summons and complaint in some other fashion. See Hegmann v. ...


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