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Rhodes v. Wilkie

United States District Court, M.D. Florida, Tampa Division

August 20, 2019

TONYA E. RHODES, Plaintiff,
v.
ROBERT L. WILKIE, Secretary, Department of Veterans Affairs, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         On 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).

         Although 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.).

         Rhodes, 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 Defendant.” (Id.).

         Because 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).

         Then, 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.

         Subsequently, 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.

         II. Discussion

         Wilkie 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.

         “Service 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 ...


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