United States District Court, M.D. Florida, Tampa Division
TONYA E. RHODES, Plaintiff,
ROBERT L. WILKIE, Secretary, Department of Veterans Affairs, Defendant.
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT
matter is before the Court on consideration of Defendant
Robert L. Wilkie's Motion to Dismiss Amended Complaint
(Doc. # 25), filed on August 7, 2019. Plaintiff Tonya E.
Rhodes filed a response in opposition on August 13, 2019.
(Doc. # 27). Wilkie replied on August 15, 2019. (Doc. # 31).
For the reasons that follow, the Motion is granted.
February 22, 2019, Rhodes filed her Complaint against Wilkie,
in his official capacity as Secretary of the Department of
Veterans Affairs. (Doc. # 1). On April 29, 2019, Rhodes filed
proof of service as to Wilkie only. (Doc. # 10; Doc. # 11).
the Court was not required to do so, it entered an Order on
May 7, 2019, explaining to Rhodes how to serve the United
States and directing her to provide more information about
her attempts to perfect service. (Doc. # 13). Specifically,
the Court outlined the requirements of serving the United
States pursuant to Federal Rule of Civil Procedure 4(i)(1),
which requires “either the delivery of a copy of the
summons and of the complaint to the United States attorney
for the district where the action is brought or the sending
of a copy of each by registered or certified mail to the
civil-process clerk at the United States attorney's
office” as well as “the sending of a copy of each
by registered or certified mail to the Attorney General of
the United States at Washington, D.C.” (Id.).
Thus, the Court made it clear that service on the United
States required service on both the United States Attorney
and the Attorney General. (Id.).
through her counsel, responded on May 10, 2019, that she had
personally served Wilkie and mailed a copy of the summons and
Complaint to the Department of Veterans Affairs via
registered mail. (Doc. # 14). Thus, Rhodes concluded in her
response that she had “successfully served the
the Court disagreed that this service was “successful,
” the Court entered another Order on that same day. In
this Order, the Court stated in part:
[I]t is clear that Rhodes has not properly served Defendant.
To properly serve an agency or employee sued in an official
capacity, a plaintiff must comply with Rule 4 (i) (2). But,
Rhodes is incorrect that serving a summons and complaint on
the individual employee and sending additional copies via
registered mail to the agency is sufficient to satisfy Rule 4
(i) (2). As Rule 4 (i) (2) clearly states, a plaintiff
“must serve the United States and also send a copy of
the summons and of the complaint by registered or certified
mail to the agency, corporation, officer, or employee.”
Fed.R.Civ.P. 4 (i) (2). And Rule 4 (i) (1) sets out the
requirements for serving the United States. Thus, to properly
serve a defendant under Rule 4 (i) (2), a plaintiff must also
serve the United States as set out in Rule 4 (i) (1). For
that reason, the Court in its May 7 Order explained the
requirements of serving the United States. In short, the
Court concludes that Rhodes has not properly served Defendant
because she has not even attempted to serve the United
States. The Court reminds Rhodes that the service deadline is
May 23, 2019, and that the Court will be disinclined to
extend the service deadline based on Rhodes' failure to
properly serve the United States.
(Doc. # 15).
on May 23, 2019, Rhodes filed a response to the Court's
May 10 Order, stating that she had served the United States
Attorney in compliance with Rule 4 (i) (1). (Doc. # 16).
Rhodes soon after filed a return of service document
reflecting service on the United States Attorney. (Doc. #
19). However, Rhodes did not claim to have served the
Attorney General in her May 23 response. (Doc. # 16). Nor has
Rhodes ever filed proof of service for the Attorney General
of the United States.
Wilkie filed a motion to dismiss the Complaint. (Doc. # 20).
Rhodes filed an Amended Complaint rather than respond to that
motion. (Doc. # 23). Now, Wilkie again moves to dismiss the
Amended Complaint for improper service. (Doc. # 25). Rhodes
has responded (Doc. # 27), and Wilkie has replied. (Doc. #
31). The Motion is ripe for review.
argues this case should be dismissed because Rhodes failed to
serve the United States in accordance with Federal Rule of
Civil Procedure 4. (Doc. # 25 at 1). The Court agrees that
service was insufficient as explained below.
of process is a jurisdictional requirement: a court lacks
jurisdiction over the person of a defendant when that
defendant has not been served.” Pardazi v. Cullman
Med. Ctr.,896 F.2d 1313, 1317 (11th Cir. 1990).
“A plaintiff is responsible for serving the defendant
with a summons and the complaint within the time allowed
under Rule 4(m), ” which is within 90 days of the
plaintiff filing the ...