Green v. Humphrey Elevator and Truck Co., 86-1428

• Decision Date: 12 May 1987
• Docket Number: No. 86-1428,86-1428
• Parties: , 7 Fed.R.Serv.3d 685 GREEN, Francis, Appellant, v. HUMPHREY ELEVATOR AND TRUCK COMPANY and Maintenance Company.
• Court: U.S. Court of Appeals — Third Circuit

Page 877

816 F.2d 877

55 USLW 2603, 7 Fed.R.Serv.3d 685

GREEN, Francis, Appellant, v. HUMPHREY ELEVATOR AND TRUCK COMPANY and Maintenance Company.

No. 86-1428.

United States Court of Appeals Third Circuit.

Argued Feb. 9, 1987.

Decided April 15, 1987.

As Amended May 12, 1987.

Thomas F. Grady (argued), Nino V. Tinari, Nino V. Tinari, P.C., Philadelphia, Pa., for appellant.

Terance P. Kennedy (argued), William C. Foster, Kelly, Harrington, McLaughlin & Foster, Philadelphia, Pa., for appellee, Humphrey Elevator & Truck Co.

John J. Hatzell, Jr. (argued), Law Offices of Anthony Frayne, Philadelphia, Pa., for appellee, The Maintenance Co.

Before HIGGINBOTHAM and STAPLETON, Circuit Judges, and CONABOY, District Judge. ^*

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

I.

Appellant Francis Green brought suit against defendants-appellees Humphrey Elevator and Truck Company ("Humphrey") and The Maintenance Company ("Maintenance") for injuries suffered during employment in New Jersey on October 9, 1983, allegedly as a result of appellees' negligence. See Brief and Appendix for Appellant, Francis Green at 8A-11A (References to Appendix for Appellant hereinafter "AA"). Appellant through his counsel, Nino V. Tinari, Esquire, filed his complaint on October 9, 1985, the last day of the two-year statute of limitations governing his claim. N.J.Stat.Ann. Sec. 2A:14-2 (West 1952); see AA at 54A. ¹ On February 5, 1986, 119 days after filing the complaint, appellant mailed copies of the summons and complaint to appellees. ² See AA at 25A, 54A. Appellee Humphrey received appellant's mailed service on February 10, 1986, 124 days after filing; appellee Maintenance received the mailed service on February 11, 1986, 125 days after filing.

On February 13, 1986, Judge VanArtsdalen, ³ issued an order notifying appellant that, unless good cause was shown within ten days why service was not made within 120 days of filing the complaint, the action would be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(j). AA at 39A. In response, Mr. Tinari filed a certification with the district court on February 18, 1986, asserting that copies of the summons and complaint, together with a notice and acknowledgment form, had been mailed to appellees on February 5, 1986 and that he had not received the return acknowledgments. Mr. Tinari offered no further explanation in that certification. In addition, motions to dismiss appellant's complaint for failure to comply with Rule 4(j) were filed by Humphrey on March 27, 1986, and Maintenance on May 12, 1986. See AA at 30A, 46A. Although both of these motions were served upon Mr. Tinari, no response by appellant was ever filed with the court. On June 19, 1986, Judge VanArtsdalen granted appellees' motions and dismissed the complaint without prejudice pursuant to Rule 4(j). AA at 54a. In so doing, he ruled that service was complete for the purposes of the Rule 4(j) ⁴ time limit upon receipt of the summons and complaint, rather than upon mailing, and that appellant had failed to show good cause why service was not made within the 120-day period. Id. at 56A. This appeal ensued.

At the outset, we note that our formulation of the question involved in this case differs from that addressed by the district court. Judge VanArtsdalen considered the question whether service is made at the time the summons and complaint are mailed by a plaintiff or at the time they are received by a defendant, and concluded that service is made at the time of receipt. We think the question, more appropriately, is at what time is service effected for purposes of Fed.R.Civ.P. 4(j) when service by the plaintiff is attempted pursuant to Rule 4(c)(2)(C)(ii), but an acknowledgment is not returned by the defendant. Because the legislative history of the Federal Rules of Civil Procedure Amendments Act of 1982, which revised Rule 4 and added subsection (j), indicates a strong congressional intent to provide defendants with actual notice of claims against them, and because the limited case law and commentary on Rule 4(j) proceed from that premise, we conclude that under such circumstances service ordinarily should be considered made when personal service is made upon the defendant. Accordingly, we will affirm the district court's dismissal of appellant's complaint for non-compliance with Rule 4(j).

II.

The crux of this appeal concerns whether "service" of a summons and complaint, when undertaken pursuant to Rule 4(c)(2)(C)(ii), ⁵ is made at the time of mailing by a plaintiff. This determination requires construing the language of Rule 4(j), which, inter alia, imposes a 120-day time limit on plaintiff for serving a defendant. Because such construction is a question of law, our standard of review is plenary. See United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.1985).

A.

Rule 4(j) provides in relevant part as follows:

(j) Summons: Time Limit for Service.

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 upon the court's own initiative with notice to such party or upon motion.

Fed.R.Civ.P. 4(j). Rule 4(j) obviously is not explicit as to exactly when service is "made." The question is further complicated when a plaintiff utilizes the provisions of Rule 4(c)(2)(C)(ii) for service by mail. Moreover, the gravity of the ruling this Court is asked to make is maximized when, as here, affirmance of a dismissal without prejudice would render the appellant's cause of action subsequently time-barred. ⁶ Both the legislative history accompanying the adoption of Rule 4(j) and the limited case law interpreting it, however, lead us to conclude that personal service is required to effectuate service under Rule 4(c)(2)(C)(ii) if a defendant fails to return an acknowledgment within the designated time period.

Rule 4(j) was adopted by Congress as part of the Federal Rules of Civil Procedure Amendments Act of 1982 ("Act"), Pub.L. No. 97-462, 96 Stat. 2527 (adopted Jan. 12, 1983). See Court Rules, 96 F.R.D. 75 (1983). Neither House of Congress submitted a report with this legislation but Representative Don Edwards (D.-Calif.), a member of the House Judiciary Committee and a co-sponsor of the bill, designated H.R. 7154, submitted a historical statement and explanation that helps to clarify the issue in this case. See 128 Cong.Rec.H. 9848, reprinted in 1982 U.S.Code Cong. & Admin.News 4434; 96 F.R.D. at 116 (Appendix A--Congressional Record ).

H.R. 7154 was Congress's attempt to cure certain problems in the amendments to the rule proposed earlier in 1982 by the Supreme Court. The Supreme Court's suggested amendments sought to reduce the burden on the United States Marshals Service as process servers, and, toward that end, provided for service by registered or certified mail in a proposed addition to section 4(d). See 96 F.R.D. at 126 (Proposed Amendments to Rule 4). The Supreme Court's proposals also included a new section, 4(j), establishing a time limit for service, which specified that "[i]f service is made by mail pursuant to [proposed] Rule 4(d)(8), service shall be deemed to have been made for the purposes of this provision as of the date on which process was accepted, refused, or returned as unclaimed." Id. at 127. Congress, however, was concerned about potential problems that might arise under these proposed amendments with regard to providing actual notice to defendants through a system of mail service. ⁷ Representative Edwards expressed that concern, and Congress's response to it, as follows:

Critics of that system of mail service argued that registered and certified mail were not necessarily effective methods of providing actual notice to defendants of claims against them.... [Under Rule 4(c)(2)(C)(ii) in H.R. 7154, s]ervice would be by ordinary mail with a notice and acknowledgment of receipt form enclosed. If the defendant returns the acknowledgment form to the sender within 20 days of mailing, the sender files the return and service is complete. If the acknowledgment is not returned within 20 days of mailing, then service must be effected through some other means provided for in the Rules.

This system of mail service avoids the notice problems created by the.... procedures proposed by the Supreme Court ... In either instance [under 4(c)(2)(C)(ii) ], ... the defendant will receive actual notice of the claim.

96 F.R.D. at 118-19.

The potential adverse implications of "unclaimed" mail for default judgments prompted Congress to delete from H.R. 7154 the Supreme Court's proposed language specifying when service would be deemed made under subsection (j). 96 F.R.D. at 118 n. 8. The bill also added a "good cause" exception to Rule 4(j) to protect diligent plaintiffs who, though making every effort to comply with the dictates of the rule, nonetheless exceed the 120-day limit for service. Commenting on Congress's version of Rule 4(j), Representative Edwards indicated that the purpose of Rule 4(j), similar to that of Rule 4(c)(2)(C)(ii), was "completing service within that [120-day] time." Id. at 119 (emphasis added).

The apparent concern for actual notice that motivated Congress's rejection of the Supreme Court's proposed amendments and the enactment of H.R. 7154, together with the emphasis on completed service as requiring additional acts beyond the mere mailing of the summons and complaint, strongly suggests that Judge VanArtsdalen properly concluded that the mere act of mailing is insufficient to effectuate service under Rule 4(j). Related provisions of the rules also support this conclusion. For instance, Rule 4(j) specifically exempts service in a foreign country under Rule 4(i) from the 120-day limit. Apparently, the vagaries of such service render the Rule 4(j) time limit...