UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-3269
Summary Calendar
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ROY McGINNIS,
Plaintiff-Appellant,
versus
DONNA SHALALA, M.D., Secretary
of Health and Human Services,
Defendant-Appellee.
* * * * * * * *
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No. 92-3568
Summary Calendar
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PEGGY MUSMECI,
Plaintiff-Appellant,
versus
DONNA SHALALA, Secretary
Department of Health and Human Services,
Defendant-Appellee.
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Appeals from the United States District Court for the
Eastern District of Louisiana
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(August 11, 1993)
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Roy McGinnis (McGinnis), appellant in No. 92-3269, and Peggy
Musmeci (Musmeci), appellant in No. 92-3568, both filed suit
against the Secretary of Health and Human Services (the Secretary)
seeking judicial review of his denial of their claims for
disability benefits. In each case, the district court dismissed
the action under Federal Rule of Civil Procedure 4(j) for failure
to effect service of process within 120 days of the filing of the
complaint. The two cases were consolidated for appeal due to the
similarity of facts and issues of law. We affirm.
Facts and Proceedings Below
The facts of these cases are sufficiently similar that they
can be described in tandem. McGinnis and Musmeci (collectively,
appellants) filed their complaints against the Secretary on July 5
and July 17, 1991, respectively. Both were represented by counsel
Harry E. Forst. Forst sent copies of the summons and complaints by
certified mail to the United States Attorney in New Orleans, the
United States Attorney General, and the Secretary. The United
States Attorney received these service attempts on or about July
16, 1991 (McGinnis), and July 23, 1991 (Musmeci), and shortly
thereafter informed appellants by letter that their attempts at
service were defective and that he would not file an answer or
other pleading until properly served. Forst had summons reissued
in both cases on October 21, 1991, which was still within the 120-
day period, but failed to effect proper service on the United
States Attorney until December 9, 1991. On December 4, 1991, the
Secretary moved to dismiss the actions under Rule 4(j) on the
ground that more than 120 days had lapsed since appellants had
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filed their complaints. Each case was automatically referred
pursuant to local rule to a magistrate judge and thereafter
traveled a slightly different path to this Court.
The magistrate judge reviewing McGinnis' complaint filed a
report and recommendation in which she recommended that the
government's motion to dismiss be denied. The district court,
however, ordered that the government's objections to the report be
maintained and granted the government's motion. The magistrate
judge in Musmeci's case issued a finding and recommendation
recommending that the government's motion to dismiss be granted.
The district court adopted the recommendation and dismissed
Musmeci's complaint. Both McGinnis and Musmeci timely appealed
their dismissals.
Discussion
Rule 4(j) of the Federal Rules of Civil Procedure provides:
"If a service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the
complaint and the party on whose behalf such service was
required cannot show good cause why such service was not
made within that period, the action shall be dismissed as
to that defendant without prejudice upon the court's own
initiative with notice to such party or upon motion."
It is undisputed in this case that appellants failed properly to
serve process within the 120-day period. Rule 4(d)(4) requires
inter alia that in suits against the United States a copy of the
summons and complaint be delivered to the United States Attorney
for the district in which the action is brought (and a copy
properly mailed to the Attorney General in Washington, D.C.).
"Service" by mail on the United States Attorney does not suffice
under Rule 4(d)(4). Prisco v. Frank, 929 F.2d 603 (11th Cir.
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1991); McDonald v. United States, 898 F.2d 466 (5th Cir. 1990).
Thus, appellants failed properly to serve the United States
Attorney when they sent their summons and complaints by certified
mail. Appellants do not dispute this. When they finally did
effect proper service on December 9, 1991, the 120-day period had
long expired, as both suits were filed in mid-July of 1991.
Appellants argue that, because they had good cause for failing
to effect timely service of process, it was error for the district
courts to dismiss their complaints. They also argue that the
government waived any defect in service. Finally, Musmeci (only)
argues that, because the magistrate judge in her case presided as
an Article III judge under 28 U.S.C. § 636(c), the district court
lacked jurisdiction to consider a matter appealable to this Court.
Each of these arguments lacks merit.
Under Rule 4(j), dismissal of a plaintiff's complaint is
required in the absence of a showing of good cause why service was
not timely made. Winters v. Teledyne Movible Offshore, Inc., 776
F.2d 1304, 1305 (5th Cir. 1985). In such cases, the plaintiff
bears the burden of proving good cause. Id. at 1305. We review a
district court's ruling as to the absence of good cause for abuse
of discretion only. McDonald, 898 F.2d at 468; George v. United
States Department of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986).
Appellants' counsel argues that the good cause requirement is
satisfied in this case because he acted in good faith at all times
and because he had the summons and complaints reissued before the
expiration of the 120-day period and gave them to his secretary to
serve. We cannot agree. We have said that good cause "would
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appear to require at least as much as would be required to show
excusable neglect," Winters, 776 F.2d at 1306 (original emphasis),
and that "[a]ctions falling into the category of inadvertence,
mistake or ignorance of counsel are not excusable neglect and do
not establish good cause for extending the 120 day period for
service." Traina v. United States, 911 F.2d 1155, 1157 (5th Cir.
1990); accord McDonald, 898 F.2d at 467; Winters, 776 F.2d at
1306.* We have also sustained dismissals for defective service on
grounds that the plaintiff received adequate notice of the defect.
Traina, 911 F.2d at 1157; Systems Signs Supplies v. United States
Dep't of Justice, 903 F.2d 1011, 1013-14 (5th Cir. 1990). Here,
appellants' counsel learned that his initial efforts at service of
process were defective soon after the United States Attorney
received the complaints and summons. Yet he waited months before
he had the summons reissued on October 21, 1991. Even then, he
still had three weeks to serve process, but failed to do so. That
appellants' counsel had instructed his secretary to serve the
papers upon the United States Attorney (explained as a desire to
avoid the cost of hiring a process-server) is surely not good cause
or (even) excusable neglect. The record reflects that the United
States Attorney's office in New Orleans is only a few blocks away
*
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
Partnership, 113 S.Ct. 1489 (1993), cited by appellants in a
supplemental brief, does not alter our analysis. That case
interpreted Bankruptcy Rule 9006(b)(1), which empowers a court in
Chapter 11 proceedings to permit a creditor to file a late proof
of claim upon a showing of excusable neglect. In our view, the
mode of analysis appropriate to Rule 9006(b)(1) is not
necessarily appropriate to Rule 4(j) if only because the standard
articulated in Rule 4(j) is good cause, not excusable neglect.
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from the office of appellants' counsel. The district court in
McGinnis' case ruled that his failure to effect timely service "is
attributable solely to his own neglect." The court in Musmeci's
case found "no reasonable basis" for her failure to properly serve
the United States Attorney. It was well within the discretion of
these courts to rule that appellants had not demonstrated good
cause.
Contrary to appellants' argument, it is not determinative that
the delivery of the summons and complaints by certified mail gave
the government sufficient notice or actual knowledge of the suit.
Rule 4(j) requires service to be timely made unless good cause for
the delay is shown. It is likewise not determinative that the
government was not prejudiced by the late service. Finally, it is
not determinative that, by virtue of the applicable statutes of
limitations, appellants' suits will now be time barred. We have
rejected this argument in prior cases and must do so again now.
Traina, 911 F.2d at 1157; McDonald, 898 F.2d at 468; Winters, 776
F.2d at 1307.
Appellants also make three arguments to the effect that the
government waived the requirements of Rule 4(j). First, McGinnis
argues that, because the magistrate judge in his case issued a
briefing schedule (on July 11, 1991), the government's failure to
oppose the briefing schedule caused him to believe that it had
waived any defect in service. The briefing schedule could not have
misled McGinnis, however, because it was issued before the
insufficient service was performed. Nor was the government under
any obligation to object to a briefing order in a case in which it
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had not properly been served. Second, appellants argue that the
government waived any service defects because it did not file a
motion to dismiss or an answer raising defective service as an
affirmative defense. The government, however, is under no
obligation to take either step within the 120-day period. Indeed,
until that 120-day period has expired, any attempt to seek
dismissal on the grounds of defective service clearly would be
premature. Finally, appellants argue that the letters sent to them
by the United States Attorney's office waived Rule 4(j) because the
letters "acknowledged" receipt of the summons and complaints.
These letters cannot even arguably be read as waivers, however,
because the United States Attorney stated therein that "[i]t will
be necessary for you to serve our office pursuant to Rule 4 since
we are not authorized by the Attorney General to waive proper
service of process."
Finally, there is no merit to Musmeci's contention that the
district court lacked jurisdiction to review the decision of the
magistrate judge and therefore that the appeal from the magistrate
judge's decision should have been directly to this Court. A
magistrate judge may act in the capacity of a federal district
court under 28 U.S.C. § 636(c) only upon the express, written
consent of both parties. FED. R. CIV. P. 73(b); Archie v. Christian,
808 F.2d 1132, 1137 (5th Cir. 1987) (en banc). Musmeci argues
that, by asking the magistrate judge rather than the district court
to dismiss the case, the government consented to final disposition
by the magistrate judge. As noted, however, consent to trial by
magistrate judge must be express; we have "refused to 'infer this
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statutorily required consent from the conduct of the parties.'"
Mendes Junior Int'l Co. v. M/V SOKAI MARU, 978 F.2d 920, 922 (5th
Cir. 1992) (quoting Caprera v. Jacobs, 790 F.2d 442, 445 (5th Cir.
1986)). See also EEOC v. West Louisiana Health Servs., Inc., 959
F.2d 1277, 1281 (5th Cir. 1992) ("Consent to trial by a magistrate
under section 636(c) cannot be implied."). Accordingly, the
district court's assumption of jurisdiction was not error.
Conclusion
For the foregoing reasons, the judgments of dismissal are
AFFIRMED.
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