Messenger v. United States

• Citation: 231 F.2d 328
• Decision Date: 16 March 1956
• Docket Number: Docket 23269.,No. 201,201
• Parties: Arra Ray MESSENGER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

231 F.2d 328 (1956)

Arra Ray MESSENGER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 201, Docket 23269.

United States Court of Appeals Second Circuit.

Argued January 19, 1956.

Decided March 16, 1956.

Jacob Rassner, New York City (Harvey Goldstein, New York City, of counsel), for plaintiff-appellant.

Warren E. Burger, Asst. Atty. Gen., Leonard P. Moore, U. S. Atty. for Eastern Dist. of New York, Brooklyn, N. Y., Melvin Richter and Lester S. Jayson, Attys., Dept. of Justice, Washington, D. C., for defendant-appellee.

Before MEDINA, HINCKS and WATERMAN, Circuit Judges.

MEDINA, Circuit Judge.

This claim against the United States is asserted under the Torts Claim Act, 28 U.S.C. §§ 1346, 2401, 2671 et seq. It arises out of injuries sustained on May 11, 1948 and was barred in May, 1950 by the two-year statute of limitations. The complaint was filed on December 22, 1948. Although there is no record entry of any service of process upon the United States, it was later asserted without contradiction, and we take it to be the fact, that service of the summons and complaint was made upon the United States Attorney for the Eastern District of New York. But no service upon the Attorney General by registered mail, as required by Rule 4(d) (4), Fed.Rules Civ.Proc. 28 U.S.C., has ever been made. On May 21, 1953, the defendant moved to dismiss on the ground that the court had no jurisdiction over it and on the further ground that there was a lack of diligent prosecution warranting dismissal under Rule 41(b). The motion was granted, and plaintiff appeals.

The only excuse proffered on plaintiff's behalf was the statement of his counsel that the matter had been "overlooked," and that the failure to make the service required by Rule 4(d) (4) was an "oversight." By reason of this delay of upwards of four years plaintiff claims that the defendant "has waived this defense of lack of jurisdiction." The basis for this assertion is not clear. For the defendant never served any notice of appearance or pleading and, although certain proceedings preliminary to trial were taken by the plaintiff and another defendant, who is not a party to this appeal, the appellee was not notified of nor did it participate in them. We shall, however, assume arguendo that, as contended on plaintiff's behalf, there has been no abandonment of the action as against the appellee.

Rule 3 clearly provides "A civil action is commenced by filing a complaint with the court." When the rules were being formulated and preliminary drafts were circulated and debated by the bench and bar throughout the country, it was at first proposed that the action should abate unless personal jurisdiction by service of process was acquired within 60 days. An alternative proposal was that the action should abate for failure to serve process within 60 days "unless within that period the court for good cause shown extends the time for service." See Preliminary Draft of Rules of Civil Procedure (May, 1936). In the end, however, no time was specified for the service of process, the Advisory Committee noting that the motion sanctioned by Rule 41(b) provided "a method available to attack unreasonable delay in prosecuting an action after it has been commenced." See Report of the Advisory Committee Containing Proposed Rules of Civil Procedure, p. 4 (April, 1937). After the adoption of the Rules, some of the District Courts adopted rules providing that actions should abate unless service be completed within a specified time after filing the complaint. Cf. Koster v. (American) Lumbermens Mut. Casualty Co., 2 Cir., 153 F.2d 888. But in Hackner v. Guaranty Trust Co. of New York, 2 Cir., 117 F.2d 95, 96, we questioned the validity of such rules. That question it is not necessary now to decide since no such rule has been invoked in this case. However, the cases just cited hold that after the filing of the complaint, the action remains pending in an inchoate state until service is completed unless and until the action is dismissed for failure to prosecute under Rule 41(b). The same holding is implicit in Munro v. United States, 303 U.S. 36, 58 S.Ct. 421, 82 L.Ed. 633, and Bates Mfg. Co. v. United States, 303 U.S. 567, 58 S.Ct. 694, 82 L.Ed. 1020.

Rule 4(d) (4) requires that service on the United States shall be made "by delivering a copy of the summons and of the complaint to the United States attorney * * * and by sending a copy of the summons and of the complaint by registered mail to the Attorney General of the United States at Washington." The main question presented in this appeal is whether the requirement of a mailing to the Attorney General is directory only, with the result that effective service can be accomplished by compliance only with the requirement of a delivery of the copy to the United States Attorney.

We hold that both the delivery to the United States Attorney and the mailing to the Attorney General are mandatory requirements. There is nothing in the language of the Rule or its history to suggest otherwise. Nor do we think there is any intimation to the contrary in Rule 12(a) which the appellant invokes. To be sure, it is there provided that "The United States or any officer or agency thereof shall serve an answer to the complaint * * * within 60 days after the service upon the United States attorney * * *." Taken out of context, this requirement might seem to import that since the time for answer is made to run from the time of delivery to the United States Attorney, effective service was accomplished by that delivery irrespective of noncompliance with the companion requirement of a mailing to the Attorney General. But such an implication is not warranted. Since the delivery and the mailing required by Rule 4(d) (4) will normally be accomplished on different days, the selection of the date of delivery as the date fixing the time to answer imported not that mailing also was not mandatory but only that of the two dates, which normally would be separated only by a day or two, the date of delivery was considered a more appropriate measuring post — perhaps because the bilateral transaction involved in a delivery was more reliable than a wholly unilateral act such as a mailing.

Although there seem to be no cases directly adjudicating the mandatory nature of the mailing required by Rule 4(d) (4), we had occasion to consider a similar provision of the Suits in Admiralty Act, 46 U.S.C.A. § 742, whereby it was required that "the libelant shall * * * serve a copy of his libel on the United States attorney * * * and mail a copy thereof by registered mail to the Attorney General * * *." In Schnell v. United States, 2 Cir., 166 F.2d 479, 483, we held that the mailing to the Attorney General could not "be dispensed with as purely formal." The reasoning of that decision is equally applicable to the parallel problem inherent in Rule 4 (d) (4). Moreover, long before the promulgation of the Federal Rules, the Tucker Act provided for a similar twofold service on the United States. None of the cases adjudicated under the Tucker Act suggested that the required mailing to the Attorney General might be dispensed with. And it may further be noted that the Report of Proposed Amendments to the Rules of Civil Procedure prepared by the Advisory Committee in October, 1955, not only retains Rule 4(d) (4), but also requires that "two copies" of the summons and complaint be served on the United States Attorney and "by either sending two copies of the summons and complaint by registered mail to the Attorney General of the United States at Washington, District of Columbia, or delivering them to the Attorney General or to an official of the Department of Justice designated by the Attorney General in writing filed with the Clerk of the United States District Court for the District of Columbia."

Holding, as we do, that service on the United States was never accomplished, clearly the court below was warranted in dismissing for failure to prosecute under Rule 41(b). For some six years there has been a complete lack of any prosecutory effort; not even service of the action has been accomplished. Under Rule 41(b), a motion to dismiss may be granted for lack of reasonable diligence in prosecuting. Hackner v. Guaranty Trust Co. of New York, supra; Salmon v. City of Stuart, 5 Cir., 194 F. 2d 1004; Shotkin v. Westinghouse Electric & Mfg. Co., 10 Cir., 169 F.2d 825; Partridge v. St. Louis Joint Stock Land Bank, 8 Cir., 130 F.2d 281; Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406. The operative condition of the Rule is lack of due diligence on the part of the plaintiff — not a showing by the defendant that it will be prejudiced by denial of its motion. Hicks v. Bekins Moving & Storage Co., supra. It may well be that the latter factor may be considered by the court, especially in cases of moderate or excusable neglect, in the formulation of its discretionary ruling. But under the circumstances of this case it would have been a gross abuse of discretion to make a finding of excusable neglect nor would such a finding be of avail to plaintiff in the absence of service upon the Attorney General.

In the brief filed on plaintiff's behalf is a request that plaintiff be permitted to make service upon the Attorney General in accordance with Rule 4 (d) (4), nunc pro tunc. But there is no authority in the rules for any such direction; nor are we aware of any authority permitting the service of process nunc pro tunc, under any circumstances. The rules do prescribe and permit a prescribed procedure which, if followed by plaintiff, will give the court the power to adjudicate the claim asserted by the plaintiff against the defendant. If the prescribed procedure is followed, jurisdiction over the person of the defendant and over the subject matter of the action may follow; otherwise the court has no power to act. As the District Court had no jurisdiction over the person of the defendant...