McMasters v. U.S.A.

• Decision Date: 14 August 2001
• Docket Number: No. 00-2991,00-2991
• Citation: 260 F.3d 814
• Parties: (7th Cir. 2001) Debra McMasters, Plaintiff-Appellant, v. United States of America and the Department of the Navy, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 814

260 F.3d 814 (7th Cir. 2001)

Debra McMasters, Plaintiff-Appellant, v. United States of America and the Department of the Navy, Defendants-Appellees.

No. 00-2991

In the United States Court of Appeals For the Seventh Circuit

Argued February 26, 2001

Decided August 14, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 6413--Charles P. Kocoras, Judge.

Before Bauer, Posner, and Kanne, Circuit Judges.

Kanne, Circuit Judge.

On August 2, 1991, fifteen year- old Amanda Lee Scott was raped and murdered by then-United States Marine Valentine Underwood.¹ On February 28, 1995, Scott's mother, plaintiff-appellant Debra McMasters, filed suit against the United States and the Department of the Navy in the United States District Court for the Central District of California seeking damages under state law as well as under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. sec. 1346(b).² McMasters, proceeding pro se, delivered a copy of the summons and complaint to the U.S. Marine Corps' Air and Ground Center in Twenty-Nine Palms, California, on July 30, 1995. Approximately a year later, McMasters sent a copy of the summons and complaint via certified mail to the Attorney General of the United States. At that time, McMasters also sent copies of the summons and complaint to the Commandant of the Marine Corps and the Department of the Navy.

Three years later, McMasters filed a motion for default judgment based on the fact that the government had not responded to her complaint. The government opposed McMasters' motion, asserting that it did not have notice of the action until McMasters filed the motion for default judgment because McMasters failed to serve the United States Attorney for the Central District of California. The district court denied McMasters' motion for default judgment but determined that service was proper:

The Court will, however, deem the U.S. Attorney's Office as served because McMasters, representing herself pro se, has "substantially complied" with Fed. R. Civ. Proc. Rule 4 and it is clear that the U.S. Attorney's Office by its response to the instant motion has actual notice of the complaint against its clients, the United States of America and the Department of the Navy. McMasters contends that she has a justifiable excuse for the failure to serve properly in that she received erroneous information regarding the service of process. Further, the defendants have not shown any prejudice from the defect in the service of the summons and complaint, whereas plaintiff would be severely prejudiced by the loss of her claim if the court were to construe Rule 4 in a rigid manner in this case.

McMasters v. United States, No. 00-2991 (C. D. Cal. Aug. 8, 1998) (order denying plaintiff's motion for default judgment and ordering defendants to file a responsive pleading).

On August 24, 1998, McMasters moved to transfer the case from the Central District of California to the Northern District of Illinois pursuant to 28 U.S.C. sec. 1404(a). The government did not oppose the transfer, and the district court granted the motion. McMasters, now represented by counsel, filed an amended complaint in the Northern District of Illinois alleging that, as her daughter's next-of-kin, she was entitled to relief under the FTCA because the Marine Corps negligently recruited, enlisted, supervised, and retained Underwood. In its answer, the government presented several defenses including insufficient service of process. The government filed a motion for judgment on the pleadings, or alternatively for summary judgment, arguing that the case should be dismissed for insufficient service of process, or alternatively, because plaintiff's claims were barred by the FTCA's assault and battery exception, 28 U.S.C. sec. 2680(h), and the discretionary function exception, 28 U.S.C. sec. 2680(a). McMasters filed a cross-motion for summary judgment.

On March 28, 2000, the district court granted the government's motion for judgment on the pleadings, finding that service of process was insufficient because McMasters failed to serve the United States Attorney.³ In making this determination, the court recognized that a court is generally bound by decisions made by a coordinate court but found that the determination of the district court for the Central District of California regarding service of process was "clearly erroneous and would work a manifest injustice" if allowed to stand. McMasters v. United States, No. 98 C 6413, 2000 WL 336549, at *4 (N.D. Ill. March 28, 2000). McMasters filed a motion for reconsideration and the district court denied the motion. She now appeals. We review the district court's order granting the motion for judgment on the pleadings de novo, drawing all inferences in the light most favorable to McMasters. See Velasco v. Ill. Dep't. of Human Servs., 246 F.3d 1010, 1016 (7th Cir. 2000).

The plain language of Rule 4(i) of the Federal Rules of Civil Procedure requires that, in order to properly serve the United States or its agencies, corporations, or officers, a plaintiff must deliver a copy of the summons and the complaint to the U.S. Attorney's Office for the district in which the action is brought, as well as to the Attorney General of the United States.⁴ While a court must give a plaintiff reasonable time to cure a defect in service under Rule 4(i)(3)⁵ or grant an appropriate extension of time for service under Rule 4(m),⁶ nothing in the Federal Rules of Civil Procedure allows a judge to excuse service altogether. Actual notice to the defendant is insufficient; the plaintiff must comply with the directives of Rule 4. See Mid-Continent Wood Prod., Inc. v. Harris, 936 F.2d 297, 301-02 (7th Cir. 1991) (stating that neither actual notice nor substantial compliance is sufficient to satisfy the requirements of Rule 4); see also Gabriel v. United States, 30 F.3d 75, 77 (7th Cir. 1994) (upholding dismissal where plaintiff served U.S. Attorney by mail because at that time, Rule 4(d)(4) required personal service on the U.S. Attorney).

Although McMasters mailed a copy of the summons and complaint to the Attorney General in accordance with Rule 4(i)(1)(B), at no point did she ever serve the U.S. Attorney. This failure renders improper the service of the United States. See Tuke v. United States, 76 F.3d 155, 157 (7th Cir. 1996) (stating that a plaintiff must comply with both prongs of 4(i)(1) "for good reason: that's what the rule says"). The fact that McMasters was proceeding pro se does not excuse her failure to comply with procedural rules. See, e.g., McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.") (footnote omitted). Thus, we are in agreement with the district court's conclusion that, "the Central District of California may have been within its discretion in permitting McMasters' service on the Attorney General nearly 15 months after the filing of her complaint, but clearly erred in excusing McMasters from ever having served or having to serve the U.S. Attorney." McMasters v. United States, 2000 WL 336549, at *4. Although this may seem overly formalistic, "[t]he Supreme Court insists that federal judges carry out the rules of procedure, whether or not those rules strike the judges as optimal." Tuke, 76 F.3d at 157.

McMasters argues that even if service was improper, the district court erred in revisiting the decision of the Central District of California. She contends that the law of the case doctrine precluded the district judge in the Northern District of Illinois from reviewing the pre-transfer decision of the district judge in the Central District of California that service was proper. McMasters is correct that the law of the case doctrine, which provides that courts should refrain from reopening issues decided in earlier stages of the same litigation, see Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988), applies when a case is transferred from one district court to another. See id. at 816. ("[T]he [law of the case] doctrine applies as much to the decisions of a coordinate court in the same case as to a court's own decisions."). However, as the district court correctly recognized, "[t]he doctrine does not apply if the court is 'convinced that [the prior decision] is clearly erroneous and would work a manifest injustice.'" Agostini v. Felton, 521 U.S. 203, 236, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (quoting Arizona v. California, 460 U.S. 605, 618 n.8, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983)).

Whether the second district judge correctly overruled the decision of the first district judge is of no moment on appeal, however, when we are faced with an issue of law. Notwithstanding plaintiff's assertions to the contrary, the law of the case doctrine does not prevent either party from seeking review of an erroneous decision by a district court. On appeal, "the question is not whether the second judge should have deferred to the ruling of the first judge, but whether that ruling was correct." Williams v. Comm'r of Internal Revenue, 1 F.3d 502, 503 (7th Cir. 1993); see also Champaign-Urbana News Agency, Inc. v. J.L. Cummins News Co., 632 F.2d 680, 683 (7th Cir. 1980) ("[O]bviously we cannot be expected to reverse a correct decision by one district judge simply because we find it is contrary to a prior ruling by another district judge in the same case.") (internal quotation omitted). As we indicated above, the district court correctly found that McMasters failed to properly serve the United States; therefore, plaintiff's first argument fails.

Next, McMasters contends that service was proper under Ninth Circuit precedent and that the district judge in the Northern District of Illinois...