Mann v. Castiel

• Decision Date: 01 June 2012
• Docket Number: No. 10–7109.,10–7109.
• Citation: 401 U.S.App.D.C. 37,681 F.3d 368,82 Fed.R.Serv.3d 931
• Parties: John B. MANN, et al., Appellants v. David CASTIEL, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

681 F.3d 368

401 U.S.App.D.C. 37

82 Fed.R.Serv.3d 931

John B. MANN, et al., Appellants

v.David CASTIEL, et al., Appellees.

No. 10–7109.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 14, 2012.

Decided June 1, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–02137).

Robert B. Patterson, pro se, argued the cause for appellants. With him on the briefs was Ronald B. Patterson.

David G. Wilson argued the cause and filed the brief for appellees.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

On the basis of Rule 4(m) of the Federal Rules of Civil Procedure, the district court dismissed plaintiffs' case without prejudice for failure to prove proper service of three defendants or to show cause therefor. See Mann v. Castiel, 729 F.Supp.2d 191, 202 (D.D.C.2010). On appeal, plaintiffs contend that this was error because their failure to timely file proof of service pursuant to Rule 4( l ) did not invalidate good service pursuant to Rule 4(m); the three defendants waived any objections to service by failing to object in what plaintiffs characterize as their initial responsive pleading; and it was an abuse of discretion to deny additional time to effect service on other defendants.

Because plaintiffs failed to demonstrate a waiver by defendants pursuant to Rule 4, they offer no basis on which this court can conclude that the district court clearly erred in finding plaintiffs failed to prove proper service. Plaintiffs rely on defendants' acknowledgment of being served without considering defendants' suggestion of improper service. Plaintiffs also confuse defendants' motion for a stay of the case, and to dismiss the case in its entirety, with a responsive pleading joining issue with plaintiffs' claims. The record further demonstrates plaintiffs failed to show cause, much less good cause, for their failure to effect timely service and thus the district court acted within its discretion in denying additional time to effect service. Accordingly, we affirm the dismissal of the case without prejudice.

I.

On November 13, 2009, John Mann, Robert Patterson, and their two wholly owned companies sued 31 defendants alleging various violations of federal and state law, including racketeering, larceny, negligence, unjust enrichment, and unfair trade practices in connection with defendants' involvement in the satellite communications industry. Complaint ¶¶ 199–382; see Ellipso, Inc. v. Mann, et al., No. 1:05–cv–01186 (D.D.C.2008). On March 9, 2010—116 days after the complaint was filed—the district court notified plaintiffs of the requirements of Rule 4(m) and ordered them to file proof of service by March 22, 2010 or to “show cause why this case should not be dismissed.” Order, Mar. 9, 2010.

On February 12, 2010, three defendants—David Castiel, Cameran Castiel, and Ambassador (Ret.) Gerald Helman—moved for a stay of the case pending the conclusion of a pending bankruptcy proceeding, In re Ellipso, Inc., No. 1:09–00148 (Chap.11) (Bankr.D.C.2009). They acknowledged that summonses had been issued for some defendants and that they had been “served” in January 2010. Defs.' Mot. for Stay or, Alternatively, Mot. for Enlargement of Time in which to File Answer (“Stay Motion”) ¶ 6 (Feb. 12, 2010). On March 25, 2010, plaintiffs belatedly responded to the district court's order, stating that both Castiels, Ambassador Helman, and a fourth defendant had been served, and requesting a 60–day extension to effect service on the remaining defendants; they provided no proof of service or explanation for their tardy response. Pls.' Resp. to Court's Order Concerning Service of Process Entered Mar. 12, 2010 (“Response”) ¶¶ 1, 8 (Mar. 25, 2010). On April 7, 2010, the three defendants moved to dismiss the case pursuant to Rule 4(m). They acknowledged receiving the summons and a copy of the complaint from “some person” but questioned whether they had been properly served, noting that “[n]o proofs of service have been submitted as required by ... [the] March 9 Order,” and that plaintiffs had failed, “even at this late date,” to produce returns of service sworn to by a process server. Jt. Mot. of Defs. to Reject Pls.' Late Resp. to Court's Order Concerning Service of Process Entered Mar. 12, 2010 and to Dismiss Action (“Motion to Dismiss”) ¶¶ 21–22 (Apr. 7, 2010). Plaintiffs did not file a response to the Motion to Dismiss.

The district court dismissed plaintiffs' case without prejudice pursuant to Rule 4(m) on August 3, 2010, because plaintiffs failed “to establish that any of the named defendants were served within 120 days of filing their complaint” or offer an adequate excuse for their failure to do so. Mann, 729 F.Supp.2d at 196. Declining to entertain plaintiffs' untimely Response, the district court noted that they had not filed a motion for an extension of time to respond to the March 9, 2010 Order, despite two opportunities to do so. Id. at 195. Even if it had entertained the Response, the district court explained that “it would still find that plaintiffs have not carried their burden” to show “good cause” warranting an extension of time to effect service pursuant to Rule 4(m), id. at 197, or even “some cause” warranting a discretionary extension, id. at 200.

II.

“Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). Under the federal rules enacted by Congress, federal courts lack the power to assert personal jurisdiction over a defendant “unless the procedural requirements of effective service of process are satisfied.” Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C.Cir.2002); see Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444–45, 66 S.Ct. 242, 90 L.Ed. 185 (1946). Service is therefore not only a means of “notifying a defendant of the commencement of an action against him,” but “a ritual that marks the court's assertion of jurisdiction over the lawsuit.” Okla. Radio Assocs. v. FDIC, 969 F.2d 940, 943 (10th Cir.1992). Consequently, courts have “uniformly held ... a judgment is void where the requirements for effective service have not been satisfied.” Combs v. Nick Garin Trucking, 825 F.2d 437, 442 & n. 42 (D.C.Cir.1987) (collecting cases); cf. Cambridge Holdings Grp., Inc. v. Federal Ins. Co., 489 F.3d 1356, 1360 (D.C.Cir.2007).

Rule 4(c) of the Federal Rules of Civil Procedure provides, in relevant part, that “[a] summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m).” Rule 4(m) provides, in relevant part:

If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed.R.Civ.P. 4(m). Rule 4 further specifies who may make service, seeFed.R.Civ.P. 4(c)(2) & (3), and how a waiver of service may be proved, seeFed.R.Civ.P. 4(d). “Unless service is waived, proof of service must be made to the [district] court.” Fed.R.Civ.P. 4( l )(1). “[P]roof must be by the server's affidavit,” unless service is made by the United States marshal (or deputy marshal). Id.

By the plain text of Rule 4, the plaintiff has the burden to “demonstrate that the procedure employed to deliver the papers satisfies the requirements of the relevant portions of Rule 4.” 4A C. Wright & A. Miller, Federal Practice And Procedure § 1083 (3d ed. 2002 & Supp. 2012); see Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987); Grand Entm't Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir.1993); Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir.1981). Seeking to demonstrate compliance with Rule 4, plaintiffs rely on Rule 4( l )(3) and defendants' waiver by pleading as well as cause for delay in effecting proof of service.None of their contentions is persuasive.

A.

Rule 4( l )(3) provides: “Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.” Fed.R.Civ.P. 4( l )(3). Although the district court cannot be assured that it has jurisdiction over a defendant until the plaintiff files proof of service, the defendant “becomes a party officially, and is required to take action in that capacity ... upon service.” Murphy Bros., 526 U.S. at 350, 119 S.Ct. 1322. That is, a defendant must answer the complaint “within 21 days after being served,” Fed.R.Civ.P. 12(a)(1)(A), even if the plaintiff fails timely to prove service by filing a server's affidavit or files defective proof of service, for the district court “may permit proof of service to be amended,” Fed.R.Civ.P. 4( l )(3); see O'Brien v. R.J. O'Brien & Assocs., Inc., 998 F.2d 1394, 1402 (7th Cir.1993) (interpreting Fed.R.Civ.P. 4(g), the precursor of current Rule 4( l )).

Plaintiffs offered no evidence to the district court to show that the three defendants had been served, much less properly served. Rule 4( l )(3) may prevent a defendant from avoiding the obligation to respond to a summons or from filing an untimely answer on the grounds that the plaintiff delayed filing proof of service or filed defective proof of service that had to be amended, but it does not excuse the plaintiff's failure to file any proof of service. SeeWright & Miller § 1130. The plaintiff must either make proof of service or come within an exception provided by the...