Zankel v. U.S.

Decision Date13 December 1990
Docket NumberNo. 617,D,617
PartiesJoyce ZANKEL and Charles Zankel, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. ocket 90-6210.
CourtU.S. Court of Appeals — Second Circuit

Robert F. Danzi, Carle Place, N.Y. (Pester, Goldberg, Schiff, Feldman & Danzi, P.C., Lawrence A. Goldberg, of counsel), for plaintiffs-appellants.

Paul Weinstein, Brooklyn, N.Y., Asst. U.S. Atty., E.D.N.Y., (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Begleiter, Deborah B. Zwany, Asst. U.S. Attys., of counsel), for defendant-appellee.

Before FEINBERG, PIERCE and MINER, Circuit Judges.

FEINBERG, Circuit Judge:

Plaintiffs Joyce and Charles Zankel appeal from an order of the United States District Court for the Eastern District of New York, Jacob Mishler, J., dated July 13, 1990, dismissing their complaint against the United States. Plaintiffs had brought suit under the Federal Tort Claims Act, seeking damages for injuries Joyce Zankel sustained when she fell in the United States Post Office in Freeport, New York. The district court dismissed the complaint after finding that appellants without good cause failed to serve the Attorney General of the United States within 120 days after filing the complaint, as required under Rules 4(d)(4) and 4(j) of the Fed.R.Civ.P. Because we believe that on the specific circumstances of this case the district court should have excused this defect, we reverse and remand for further proceedings.

I. BACKGROUND

In March 1987, plaintiff Joyce Zankel slipped and fell on a wet portion of the floor of the United States Post Office located in Freeport, New York, suffering a fracture of her knee. On June 24, 1987, plaintiffs' attorney sent a claim for damages on an appropriate form to the United States Postal Service, by certified mail, return receipt requested.

On January 22, 1988, although the Postal Service had not yet acted on the claim, plaintiffs commenced this suit against the United States. 1 Rule 4(d)(4), which prescribes how service is effected upon the United States, provides that service be made:

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 clerical employee designated by the United States attorney ... and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia.

The Rule thus calls for transmitting a copy of the summons and complaint to both the local United States Attorney and the Attorney General of the United States. Rule 4(j), which deals generally with the time limit for service, provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

On January 28, 1988, plaintiffs delivered a copy of the summons and complaint to the United States Attorney for the Eastern District of New York (hereafter, the United States Attorney). With regard to the Attorney General of the United States (hereafter, the Attorney General), however, the government maintains that plaintiffs did not send a copy of the summons and complaint by registered or certified mail within the 120-day period after January 22, 1988, as required by Rule 4(j). Plaintiffs, in contrast, claim that at the same time they personally served the United States Attorney they also sent a copy of the summons and complaint by certified mail to the Attorney General. 2

There is thus a dispute over whether plaintiffs actually mailed the Attorney General a copy of the summons and complaint in January 1988 at the same time they served the United States Attorney. It is not disputed, however, that the Attorney General received a copy of the summons and complaint on February 11, 1988. This copy was forwarded to the Attorney General by the United States Attorney; it was found in the Attorney General's file with a memorandum attached stating that it came from that office. On February 22, 1988, authority for handling the defense of the case was delegated by the Attorney General to the United States Attorney.

The United States filed its answer to plaintiffs' suit in March 1988, raising lack of subject matter jurisdiction and "improper" service of process as the first and fifth affirmative defenses. Thereafter, discovery began; in November 1988, defendant took plaintiffs' depositions, and plaintiffs deposed an employee of the Postal Service. In December 1988, the attorney handling the matter for plaintiffs wrote to the Assistant in the United States Attorney's office, requesting him to sign and return an enclosed stipulation withdrawing the first and fifth affirmative defenses. Plaintiffs alleged in the district court that at that time the government attorney said he would review the matter and respond; the allegation was not controverted in the record below. There was no further response and the stipulation was not signed.

Thereafter, by letter dated January 24, 1989, the United States Postal Service informed plaintiffs' attorney that it was denying the administrative claim plaintiffs had filed in June 1987. The letter recognized that plaintiffs had already "exercised their option to file suit" but went on to say that "[r]egulations require us to inform you" that if plaintiffs were dissatisfied with this final disposition of their claim, they could file a suit against the United States in an appropriate United States District Court "not later than six months from the date" of the letter, presumably to comply with the relevant statute of limitations.

In early April 1989, at a status conference in the district court, plaintiffs again requested the government to withdraw its affirmative defenses. Plaintiffs' attorney then first learned that the specific alleged defect in service was failure to serve the Attorney General, and on the next day sent a copy of the summons and complaint to the Attorney General by certified mail.

On July 28, 1989, the United States moved to dismiss the complaint for insufficiency of service of process. In October, the district court held an evidentiary hearing to determine whether plaintiffs had properly and timely served the United States. Plaintiffs called a legal assistant for their attorney as their only witness, and were unable to produce any receipt for the alleged January 1988 mailing to the Attorney General. The government called two witnesses: a superintendent of mails and deliveries for the United States and a case control officer for the United States Department of Justice, Civil Division, Torts Branch.

After the hearing, the district court concluded that "no attempt was made to effect service upon the Attorney General" until April 6, 1989. The judge also found that the record did not disclose a justifiable excuse for plaintiffs' failure to serve the Attorney General within the applicable time period; the judge attributed the failure to plaintiffs' attorney's poor office procedure or ignorance of the Rules. Since plaintiffs had not complied with the 120-day time limit of Rule 4(j) and could not demonstrate "good cause" for their failure, the district court dismissed the complaint without prejudice pursuant to the Rule. In addition, the court denied plaintiffs' motion under Rule 6(b) for an enlargement of time to serve the United States, finding that plaintiffs did not make an adequate showing of "excusable neglect." 3 The court also noted that the statute of limitations period had run, so that plaintiffs were barred from further pursuit of this action. This appeal followed.

II. DISCUSSION

In this court, plaintiffs argue first that the district court's factual finding that no attempt was made to serve the Attorney General until April 1989 was clearly erroneous because it failed to credit the only credible evidence proffered on this question, namely, the testimony of their counsel's legal assistant. We find this argument without merit. The government offered ample evidence supporting the district court's finding that plaintiffs did not attempt to serve the Attorney General until April 1989. This evidence included the absence of a white or green certified mail receipt from the alleged mailing in January 1988, the absence from the Justice Department's case tracking system of any reference to such service, and the indication on the face of the summons that the summons and complaint were directed only to the United States Attorney and not to the Attorney General. More importantly, Judge Mishler heard plaintiffs' sole witness and assessed her credibility. This credibility determination is entitled to great deference, and we see no reason on this record to reject it. Similarly, we cannot characterize as clearly erroneous the district court's additional finding that plaintiffs' failure to serve the Attorney General within the specified time period was due to poor office procedure or ignorance of the Rules.

As noted above, based upon these findings, the district court concluded that plaintiffs failed to meet the "good cause" or "excusable neglect" standard that would justify excusing a failure to serve the Attorney General within 120 days either under Fed.R.Civ.P. 4(j) or 6(b). In an ordinary case, this exercise of the judge's discretion would be unassailable, that is, a judge is certainly not required to treat inadvertence or ignorance of the Rules as "good cause" or "excusable neglect" for delay in service. Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir.1984); Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.), cert. denied, 484 U.S. 965,...

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