Schnabel v. Wells, 90-8293

• Decision Date: 28 January 1991
• Docket Number: No. 90-8293,90-8293
• Citation: 922 F.2d 726
• Parties: J. Richard SCHNABEL, Plaintiff-Appellant, v. Jonathan Ray WELLS, James Pickerel, Joyce Pickerel, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 726

922 F.2d 726

18 Fed.R.Serv.3d 1193

J. Richard SCHNABEL, Plaintiff-Appellant, v. Jonathan Ray WELLS, James Pickerel, Joyce Pickerel,

Defendants-Appellees.

No. 90-8293.

United States Court of Appeals, Eleventh Circuit.

Jan. 28, 1991.

Eugene Novy, Robert Craig Henderson, Novy & James, Atlanta, Ga., for plaintiff-appellant.

Robert Malcolm Darroch, Jay Lane Drew, Elizabeth A. Obenshain, Emory A. Wilkerson, Darroch & Obenshain, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and PECK ^*, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge:

Plaintiff Richard Schnabel appeals from judgment in favor of the defendant, Jonathan Wells, for failure to serve process within the time required by Federal Rule of Civil Procedure 4(j). For the reasons that follow, WE AFFIRM.

I. BACKGROUND

Schnabel filed suit against Wells on December 9, 1988, two days before the expiration of the statute of limitations, for personal injuries arising out of an automobile accident. Schnabel sent Wells a copy of the summons and complaint by certified mail, return receipt requested, along with a cover letter instructing Wells to contact his insurance carrier and advising him that he must file an answer within the time prescribed by federal law. Wells filed a timely answer asserting twelve defenses to the lawsuit, including insufficient service of process. Discovery then ensued. At no time did Schnabel attempt to effect personal service on Wells or otherwise attempt to address Wells' allegation of insufficient process. In October of 1989, Wells moved for summary judgment on the grounds that service of process had never been perfected and consequently the action was barred by the statute of limitations. The district court treated this as a motion to dismiss pursuant to Rule 4(j) for failure to serve process within 120 days of filing the complaint and dismissed the case without prejudice. The court later entered judgment in favor of Wells, and from this judgment plaintiff appeals.

II. DISCUSSION

Under Rule 4(c)(2)(A), a summons and complaint is to be served personally by a non-party adult unless one of the exceptions in subparagraph (B) or (C) applies. Mail service is one of these exceptions. Under Rule 4(c)(2)(C), a summons and complaint may be served upon a competent adult

(ii) by mailing a copy of the summons and of the complaint (by first class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgement of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph....

Fed.R.Civ.P. 4(c)(2)(C)(ii).

The provision permitting mail service is relatively recent. It was enacted by Congress in 1983 to relieve United States marshals of the burden of serving summonses and complaints in private civil suits. Service by certified mail, restricted delivery, was proposed by the United States Supreme Court under the provisions of the Rules Enabling Act. However, Congress expressly rejected this method of service, instead providing for service by first class mail with a notice and acknowledgment to be executed by the defendant under penalty of perjury. A sponsor of the amendment, Mr. Edwards of California, stated that this method was preferred over the certified mail method because it avoided the notice problems created by the certified mail proposal. However, he also stated that actual notice is not of itself sufficient, noting that "if the proper person receives the notice but fails to return the acknowledgment form, another method of service authorized by law is required." Statement By a Member of the House Committee on the Judiciary, 128 Cong.Rec. H9848 (daily ed. Dec. 15, 1982) (statement of Rep. Edwards), reprinted in 1982 U.S.Code Cong. & Admin.News 4434, 4439-40. See also Armco, Inc. v. Penrod-Stauffer Building Systems, Inc., 733 F.2d 1087, 1088 (4th Cir.1984).

This result is mandated by the plain wording of the mail service rule. If a defendant receives mail service, but chooses not to respond, the plaintiff must effect personal service. The defendant's actual notice of the lawsuit does not eliminate this requirement. See Young v. Mt. Hawley Ins. Co., 864 F.2d 81, 82-83 (8th Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 281, 107 L.Ed.2d 261 (1989); Armco, Inc. v. Penrod-Stauffer Building Systems, Inc., 733 F.2d 1087, 1088-89 (4th Cir.1984); Worrell v. B.F. Goodrich Co., 845 F.2d 840, 841-41 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3191, 105 L.Ed.2d 699 (1989); McDonald v. United States, 898 F.2d 466, 468 (5th Cir.1990); Stranahan Gear Co., v. NL Industries, Inc., 800 F.2d 53, 56 (3d Cir.1986). Instead, defendant's penalty for declining to return the acknowledgment form is that defendant may be required to pay the additional costs of procuring service by alternate means. See Rule 4(c)(2)(D); Armco, 733 F.2d at 1088.

Since actual notice is not adequate when mail service is properly effected but the defendant chooses not to return the acknowledgment form, we are aware of no authority for holding that actual notice may cure service defectively executed. We therefore...