United States District Court, N.D. New York
DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
Lora Carthron-Kelly commenced this action on March 3, 2015,
appealing from the denial of Social Security benefits. Dkt.
No. 1 (“Complaint”). Presently before the Court
is the Commissioner of Social Security's Motion to
Dismiss for Insufficient Service of Process and Lack of
Personal Jurisdiction. Dkt. No. 11 (“Motion”);
see also Dkt. No. 11-2 (“Memorandum”).
Carthron-Kelly opposes the Motion, Dkt. No. 13
(“Response”), and the Commissioner filed a reply,
Dkt. No. 14 (“Reply”). For the following reasons,
the Court reserves decision on the Commissioner's Motion
pending receipt of proof of service from Carthron-Kelly.
filed her Complaint on March 3, 2015. Compl. Under Federal
Rule of Civil Procedure 4(m) as it existed at the time,
plaintiff had 120 days after the filing of her complaint to
serve a defendant. Fed.R.Civ.P. 4(m). Carthron-Kelly's
counsel, who had never worked on a Social Security appeal in
this district before, mistakenly believed that he did not
need to personally serve the summonses issued for the United
States Attorney for the Northern District of New York, the
Commissioner of Social Security, and the United States
Attorney General. Resp. at 3. Without having served the
summonses, Carthron-Kelly's counsel requested a status
report from the Court on January 14, 2016-well past the Rule
4(m) deadline. Dkt. No. 5. Carthron-Kelly's counsel was
then “informed via a telephone call that this Court
requires counsel to serve the Summons on behalf of the
Plaintiff.” Resp. at 4. The very next day,
Carthron-Kelly's counsel requested an extension on the
deadline to serve the summonses. Dkt. No. 6. The Court
granted the extension on February 23, 2016, and gave
Carthron-Kelly until April 25, 2016, to effect service. Dkt.
No. 7. The Court also instructed Carthron-Kelly to
“file proof of such service on the case docket.”
Id. Carthron-Kelly's counsel timely served both
the U.S. Attorney in Syracuse, New York, and the Regional
Office of the Social Security Administration in New York, New
York, but failed to properly serve the Attorney General in
Washington, D.C. Dkt. No. 10-1 (“Affidavit of
Service”) at 1-6. It appears that, instead of sending
the summons designated for the Attorney General to Washington
as required, Carthron-Kelly's counsel sent it to the
business address of the Commissioner in Baltimore, Maryland.
Id. at 2. Moreover, while Carthron-Kelly's
counsel served the U.S. Attorney and the Commissioner before
the April 25, 2016 deadline, he failed to provide proof of
service as instructed by the Court until August 26, 2016-two
days after the Court had requested a status report. Dkt. No.
9; Aff. of Service.
August 31, 2016, the Commissioner moved to dismiss the
Complaint under Federal Rules of Civil Procedure 12(b)(2) and
(5) for lack of personal jurisdiction and insufficient
service of process. Mot. The Commissioner notes that “[t]o
date-nearly 550 days after Plaintiff filed her
Complaint-Plaintiff has still failed to serve the U.S.
Attorney General.” Mem. at 3. This failure mandates
dismissal, says the Commissioner, who also suggests that
Carthron-Kelly should not be given another opportunity to
cure her defective service. Id. at 5-6. On September
20, 2016, Carthron-Kelly filed a response and an affidavit
stating that service had been effected on the Attorney
General. Resp.; Dkt. No. 12 (“Second Affidavit of
Service”). Carthron-Kelly relies on Federal Rule of
Civil Procedure 4(i)(4)(A), which provides that a
“court must allow a party a reasonable time to cure its
failure to serve a person required to be served under Rule
4(i)(2), if the party has served either the United States
attorney or the Attorney General of the United States.”
Resp. at 6. On the basis of this provision, she asks the
Court to “extend the service deadline to the date of
re-service of the Attorney General, ” namely, September
20, 2016. Id. at 7. Alternatively, Carthron-Kelly
argues that good cause existed for her failure to timely
effect service, and that even if the Court declines to find
good cause, it should still exercise its discretion to extend
the service deadline. Id. at 7-10.
Federal Rules [of Civil Procedure] contain a ‘cure
provision' requiring the district court to allow a party
who has failed to serve process on the United States but is
required to do so a ‘reasonable time' to cure such
a failure.” Kurzberg v. Ashcroft, 619 F.3d
176, 184 (2d Cir. 2010). Under this provision, a “court
must allow a party a reasonable time to cure its failure to
serve a person required to be served under Rule 4(i)(2), if
the party has served either the United States attorney or the
Attorney General of the United States.” Fed.R.Civ.P.
4(i)(4)(A). “Rule 4(i)(4) contemplates that the
‘reasonable time to cure' service will begin
running once the failure is pointed out.” Raja v.
Johnson, No. 13-CV-11, 2014 WL 1123523, at *3 (S.D. Ohio
Mar. 20, 2014) (citing Fed.R.Civ.P. 4 advisory
committee's note to 2000 amendment); accord Graham v.
Sequatchie Cty. Gov't, No. 10-CV-20, 2011 WL 796785,
at *1 (E.D. Tenn. Feb. 28, 2011) (“To determine whether
the plaintiffs have had a reasonable time to cure the lack of
service of process on the United States, the ‘cure
provision' in Rule 4(i)(4)(B) may be triggered and the
clock starts to run if the plaintiffs receive notice of the
deficiency . . . .”). Notice of the deficiency can be
provided by either the defendant or the court itself. See
Kurzberg, 619 F.3d at 185 (“Nothing in the
language of Rule 4(i)(3)(A) suggests that a defect in the
service of process can be identified for purposes of
permitting the plaintiff to cure the defect only by the court
. . . . [N]otification to the plaintiff by the defendant,
rather than by the court, of a defect in the service of
process is sufficient to start the clock on the reasonable
amount of time afforded to the plaintiff to cure the
Rule 4(i)(4)(A) did not apply until Carthron-Kelly served the
U.S. Attorney in April 2016, since the Rule is triggered only
when “the party has served either the United States
attorney or the Attorney General of the United States,
” Fed.R.Civ.P. 4(i)(4)(A), and before that point
Carthron-Kelly had not served anybody. Once she finally
effected partial service, Carthron-Kelly did not receive
notice of her failure to properly serve the Attorney General
until the Commissioner filed her Motion on August 31, 2016.
Mot. That filing therefore “start[ed] the clock running
on the reasonable time that [Carthron-Kelly was] afforded . .
. to cure the defect in service.” Graham, 2011
WL 796785, at *1. Within a month of the filing of the Motion,
Carthron-Kelly filed the Second Affidavit of Service, which
indicated that she had at last served the Attorney General in
Washington, and that she would “file the return of
service as soon as it is received.” Second Aff. of
Service at 1.
Court finds that a “reasonable time to cure”
under Rule 4(i)(4)(A) encompasses the three weeks it took
Carthron-Kelly to correct the deficient service after the
defect was pointed out to her. See Anderson v.
Counts, No. 07-CV-192, 2007 WL 2710458, at *2 (N.D.Ga.
Sept. 12, 2007) (giving the plaintiff thirty days to cure his
deficient service on the United States in accordance with
Rule 4(i)). The Commissioner suggests that the Court already
gave Carthron-Kelly a “reasonable time to cure”
“by granting her 62 days to do so-between February 23,
2016, when the Court granted [her] extension request, and
April 25, 2016, the date by which the Court ordered [her] to
complete service.” Mem. at 5. That argument is
unavailing. As the Court just pointed out, Rule 4(i)(4)(A)
applies only when “the party has served either the
United States attorney or the Attorney General of the United
States.” Fed.R.Civ.P. 4(i)(4)(A). When the Court
granted the extension request on February 23, 2016, neither
the U.S. Attorney nor the Attorney General had been served.
Thus, Rule 4(i)(4)(A) was simply inapplicable at that time.
See Sunoco v. Mid-Atl. Region Retailer Compliance
Ctr., No. 10-CV-4941, 2011 WL 4810915, at *3 n.2 (D.N.J.
Oct. 7, 2011) (“Plaintiff may not avail itself of [Rule
4(i)(4)] because . . . Plaintiff did not attempt to serve
either the United States Attorney or the Attorney General of
the United States.”). Once it became applicable,
though, Carthron-Kelly acted relatively quickly to remedy the
defect in service pointed out to her. Since the Court finds
that Carthron-Kelly has cured her defective service on the
United States within a reasonable time after the Commissioner
informed her of it, it need not address the
Commissioner's other arguments for dismissing the
for Carthron-Kelly, however, the Court cannot deny the
Commissioner's Motion just yet. Even though she promised
to do so, Second Aff. of Service at 1, Carthron-Kelly never
filed proof that she served the Attorney General. Docket.
Accordingly, the Court reserves decision on the
Commissioner's Motion. Carthron-Kelly has thirty (30)
days to file proof that she properly served the Attorney
General in Washington. If she submits such proof within the
allotted time, the Court will dismiss the Commissioner's
Motion. But if she fails to do so, the Court will grant the
Motion and dismiss her Complaint.
it is hereby:
that the Court reserves decision on the Commissioner's
Motion to Dismiss (Dkt. No. 11) pending receipt of proof of
service on the United States Attorney General in Washington,
DC. Carthron-Kelly has thirty (30) days to file such proof,
and if she timely submits such proof, the Court shall deny
the Commissioner's Motion. If she does not timely submit
such proof, however, ...