McGregor v. U.S., s. 1340

• Decision Date: 15 May 1991
• Docket Number: Nos. 1340,D,1341,s. 1340
• Parties: Denise McGREGOR, Individually and as Executrix of the Estate of Roy McGregor, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ockets 90-6281, 91-6009.
• Court: U.S. Court of Appeals — Second Circuit

Page 156

933 F.2d 156

19 Fed.R.Serv.3d 969

Denise McGREGOR, Individually and as Executrix of the Estate of Roy McGregor, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Nos. 1340, 1341, Dockets 90-6281, 91-6009.

United States Court of Appeals Second Circuit.

Argued April 18, 1991.

Decided May 15, 1991.

Joseph S. Cote, Syracuse, N.Y. (Devorsetz, Stinziano & Smith, P.C., of counsel), for plaintiff-appellant.

Paula Ryan Conan, Syracuse, N.Y., Asst. U.S. Atty., for N.D.N.Y. (Frederick J. Scullin, Jr., U.S. Atty., for N.D.N.Y., of counsel), for defendant-appellee.

Before LUMBARD, FEINBERG and McLAUGHLIN, Circuit Judges.

FEINBERG, Circuit Judge:

Plaintiff Denise McGregor, individually and as executrix of the estate of her husband, Roy McGregor, brings a consolidated appeal from two separate judgments in the United States District Court for the Northern District of New York, dismissing two complaints she had filed against the United States. The first judgment, dated October 1, 1990, Howard G. Munson, J., dismissed her initial complaint on the ground that she had failed, without good cause, to serve the Attorney General of the United States within 120 days after filing her complaint, as required under Fed.R.Civ.P. 4(d)(4) and 4(j). McGregor had brought suit under the Federal Tort Claims Act, seeking damages for medical malpractice and wrongful death suffered by her husband as a result of allegedly negligent medical treatment provided by the Veterans Administration. The second judgment, dated December 28, 1990, Con. G. Cholakis, J., dismissed with prejudice McGregor's second complaint, which restated the claims of her first suit and was filed immediately after Judge Munson's decision in open court to dismiss the first complaint. The basis of Judge Cholakis's order was that the second complaint was barred by the applicable statute of limitations. Because we believe the district court properly dismissed both complaints, we affirm.

I. Background

In November 1987, plaintiff filed an administrative tort claim with the Veterans Administration, alleging that her decedent husband had been subjected to negligent medical treatment at V.A. Hospitals in Gainesville, Florida and Syracuse, New York, and that this treatment ultimately caused his death by rupture of a cerebral aneurysm. The Veterans Administration denied the tort claim on May 11, 1988.

On November 3, 1988, a few days prior to the expiration of the applicable statute of limitations, plaintiff timely commenced a suit against the United States under the Federal Tort Claims Act, seeking compensation for the injuries suffered by her husband, her children and herself as a result of the negligent treatment resulting in her husband's wrongful death. Rule 4(d)(4), which prescribes how service is effected upon the United States, requires that a copy of the summons and complaint must be delivered to the local United States Attorney and sent "by registered or certified mail to the Attorney General of the United States." Rule 4(j), which deals generally with the time limit for service, further 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 the same day plaintiff filed her complaint, November 3, 1988, she properly served the United States Attorney for the Northern District of New York (hereafter, the United States Attorney) by having a copy of her summons and complaint personally delivered to his office. Plaintiff did not, however, make any attempt within the 120-day period to serve the United States Attorney General (hereafter, the Attorney General) by sending a copy of the summons and complaint to his office by registered or certified mail.

On January 3, 1989, the United States timely filed its answer to plaintiff's suit, raising a number of affirmative defenses. The first was lack of jurisdiction. The third was: "Plaintiff's complaint fails for sufficiency of process, and cannot now be brought within the time necessary to bring an action under 28 U.S.C. Section 2401." Upon receipt of this answer, plaintiff took no action either to clarify or remedy the defect in process. Between January and March of 1989, discussions took place between opposing counsel to fix the schedule for filing motions and completing discovery, and in March 1989 the parties entered into a stipulation setting out the schedule. At the end of July 1989, the Attorney General first received a copy of plaintiff's complaint from the Office of General Counsel of the Veterans Administration. By letter on August 3, 1989, the Attorney General delegated authority to handle the suit to the United States Attorney, although the United States Attorney never received a copy of this letter.

In October 1989, the United States Attorney provided copies of relevant medical records and other documents to plaintiff's attorneys, and a deposition of one of the medical witnesses was conducted. In March 1990, roughly 14 months after receiving defendant's answer, plaintiff's attorneys first served interrogatories upon the United States seeking, among other things, to determine the basis for the government's claim of insufficiency of process. Following a review of its records, the United States responded in May 1990, indicating that service of process upon the Attorney General had not been effected in compliance with Rule 4(d)(4) and that plaintiff's complaint was thus subject to a motion to dismiss under Rule 4(j). On receipt of this answer, plaintiff's attorneys still did not take prompt action to remedy the defect in service.

In July 1990, the United States moved to dismiss plaintiff's complaint for insufficiency of service of process. In response to this motion, on August 6, 1990, plaintiff's attorneys first served a copy of the summons and complaint upon the Attorney General, some 17 months after the period for proper service upon the United States had expired. Plaintiff opposed the government's motion to dismiss by cross-moving for leave to file an amended complaint under Fed.R.Civ.P. 15(a), arguing that by completing proper service on the amended complaint the original defect in service would be "cured."

In a bench ruling in September 1990, Judge Munson granted the government's motion to dismiss for failure to effect timely service upon the United States, and he also denied plaintiff's cross-motion to amend the complaint. The judge found that plaintiff's defective service on the Attorney General was the product of her attorneys' mistake and could not be deemed adequate on the ground of "good cause" or "justifiable excuse." He also noted that amending the complaint by adding a new named party does not change the party against whom the complaint was originally filed nor obviate the necessity of complying with the service requirements for the initial complaint under Rule 4(d)(4).

Immediately after Judge Munson's ruling and on the same day, September 21, 1990, plaintiff commenced a second suit against the United States, stating claims virtually identical to those in her first complaint. Shortly thereafter, plaintiff's attorneys effected proper service on both the United States Attorney and the Attorney General in compliance with Rule 4(d)(4). The United States thereafter moved to dismiss this action on the ground that it was barred by the applicable statute of limitations.

In a bench ruling in December 1990, Judge Cholakis dismissed plaintiff's second complaint with prejudice, pursuant to Fed.R.Civ.P. 12 and 28 U.S.C. Sec. 2401(b), which provides that "[a] tort claim against the United States shall be forever barred unless ... action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." The judge rejected plaintiff's contention that the filing of her first action tolled the applicable statute of limitations, thus allowing her a few days to commence another action following dismissal of her initial complaint. Rather, the judge held that in an action where service is not effected within 120 days of filing and where the statute of limitations has run during that 120-day period, a Rule 4(j) dismissal effectively dismisses the action with prejudice. Accordingly, the judge granted the government's motion to dismiss plaintiff's second complaint with prejudice. This consolidated appeal followed.

II. Discussion

Plaintiff first argues that Judge Munson should not have dismissed her initial complaint because her failure to serve the Attorney General within the required 120-day period was excusable for "good cause" under Rule 4(j).

Relying upon our recent decision in Zankel v. United States, 921 F.2d 432, 436-38 (2d Cir.1990), plaintiff identifies various instances of allegedly misleading government conduct that served either to obscure or to minimize the significance of the alleged defect in process, thus implying that plaintiff's attorneys' failure to remedy that defect was for "good cause." The first instance concerns the government's linkage of its insufficiency of process defense in its initial answer with the claim that the statute of limitations on plaintiff's action had expired under 28 U.S.C. Sec. 2401. This linkage, argues plaintiff, involved a misstatement of the law that obscured the...