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Messenger v. United States

United States Court of Appeals for the Second Circuit · 1956 · Civil Procedure

Civil ProcedureFRCP 4(d)(4)FRCP 41(b)service of processUnited States as defendantAttorney GeneralUnited States Attorneypersonal jurisdiction

Facts

Plaintiff's Tort Claims Act claim arose from injuries sustained on May 11, 1948, and the complaint was filed on December 22, 1948. Service was asserted to have been made on the United States Attorney for the Eastern District of New York, but no copy of the summons and complaint was ever sent by registered mail to the Attorney General as required by Rule 4(d)(4). In May 1953, the United States moved to dismiss for lack of jurisdiction and lack of diligent prosecution. Plaintiff's only explanation for the failure to complete service was that counsel had overlooked it and that it was an oversight.

Issue

Whether service on the United States is effective under Rule 4(d)(4) when the plaintiff serves the United States Attorney but never mails the summons and complaint to the Attorney General. Also, whether the district court could dismiss the action under Rule 41(b) after years of inaction and whether plaintiff could be allowed to make service on the Attorney General nunc pro tunc.

Rule

Under Rule 4(d)(4), service on the United States requires both delivery of the summons and complaint to the United States Attorney and mailing a copy by registered mail to the Attorney General; both requirements are mandatory. After a complaint is filed, an action remains pending in an inchoate state until service is completed unless and until dismissed for failure to prosecute under Rule 41(b). Dismissal under Rule 41(b) may be granted for lack of reasonable diligence in prosecuting, and the operative condition is plaintiff's lack of due diligence rather than a showing of prejudice to the defendant.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In federal district court in Seattle, Nina Patel sued the United States over damage allegedly caused by a federal maintenance crew. Within a week of filing, her lawyer personally delivered the summons and complaint to the United States Attorney for the district, but sent nothing to the Attorney General in Washington.

If the United States moves to dismiss for insufficient service, how should the court rule?

Explanation. The majority held that Rule 4(d)(4) imposes two mandatory requirements for service on the United States: delivery to the United States Attorney and mailing a copy by registered mail to the Attorney General. Compliance with only one of the two does not accomplish service, so the motion should be granted.