United States Court of Appeals,
Fifth Circuit.
No. 95-60379
Summary Calendar.
Mary Frances FLORY, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
March 29, 1996.
Appeal from United States District Court for the Southern District of Mississippi.
Before DAVIS, STEWART and PARKER, Circuit Judges.
PER CURIAM:
Flory brought suit against the United States claiming that the negligence of postal workers
caused her to fall and injure herself in the lobby of the McComb, Mississippi Post Office. She appeals
from the district court's order dismissing her action for lack of personal jurisdiction on the ground of
insufficient service of process. She argues that the Government waived the defense of insufficient
service. Finding no waiver, hence no reversible error, we AFFIRM.
FACTS
Flory alleges that she was carrying a large cardboard box filled with mail while leaving the
post office when she stumbled over a two-wheel dolly loaded with a metal garbage can. As a result
of her fall, she alleges that she sustained severe injuries and has had to undergo lumbar disc surgery.
Through counsel, she filed a complaint against the United States pursuant to the Federal Tort Claims
Act. The Government answered, advancing several defenses including its assertion that service of
process would not be complete without service on the Attorney General in accordance with
Fed.R.Civ.P. 4(i)(1)(B), and failure to state a claim upon which relief can be granted. Flory never
served the Attorney General.
After a case management conference, the United States moved for summary judgment on the
ground that its employees had committed no negligent act. The district court denied that motion.
The United States then moved to dismiss for lack of jurisdiction, asserting Flory's failure to serve the
Attorney General.
Relying on this Court's decision in Peters v. United States, 9 F.3d 344 (5th Cir.1993), the
district court granted the motion to dismiss because Fed.R.Civ.P. 4(d) requires service on both the
United States Attorney for the appropriate district and service on the Attorney General. "If a plaintiff
fails to serve the defendant properly within 120 days of filing the complaint, upon motion of the
defendant or sua sponte by the court with notice to the plaintiff, the action shall be dismissed without
prejudice unless the plaintiff shows good cause for failure to complete service." Peters, 9 F.3d at
345, citing Fed.R.Civ.P. 4(j) (now Fed.R.Civ.P. 4(m)). The district court found that Flory had made
no attempt to establish "good cause" for her failure to properly serve the Attorney General after the
expiration of the 120 period allotted by Fed.R.Civ.P. 4(m). The district court further reasoned that
the United States had not waived the defense under Fed.R.Civ.P. 12(h)(1) because it pled the failure
as a defense at its first opportunity—in its Answer—thus preserving the issue.
DISCUSSION
The purpose of the Rule 12(h)(1) automatic waiver provision is to encourage the
consolidation of motions and discourage the dilatory device of making them in a series. 5A Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1387 (citation omitted). However,
in this instance, the United States plainly pled insufficiency of process at its first opportunity, as
required by Fed.R.Civ.P. 12(b). That it subsequently decided to move for summary judgment before
arguing insufficient service of process does not necessarily constitute a dilatory device.
When a plaintiff has effected service on either the United States Attorney or the Attorney
General of the United States, the court shall allow a reasonable time for service of process for the
purpose of curing the failure to serve the other officer or agency. Fed.R.Civ.P. 4(i)(3). By raising
the defense of defective service well within the expiration of the 120-day period allowed for service
(the answer was served on the 94th day after Flory's complaint was filed), the United States allowed
plaintiff Flory time to cure the defect, which she did not do. See Hegmann v. United States, 745
F.Supp. 886, 891 (E.D.N.Y.1990). Flory did not make any attempt to show good cause for her
failure to serve the Attorney General.
Flory would have this court make a new rule prohibiting dismissal when the Rule 12(b)(5)
defense is asserted timely but the defendant takes other steps in the litigation before moving to
dismiss. Flory has cited no authority for such a rule. Moreover, Flory is bringing her claim under the
shelter of the Federal Torts Claim Act, which provides an exception to sovereign immunity. Courts
are prohibited from expanding or narrowing FTCA's waiver of sovereign immunity beyond that which
Congress intended. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62
L.Ed.2d 259 (1979); Houston v. United States Postal Serv., 823 F.2d 896, 898 (5th Cir.1987), cert.
denied, 485 U.S. 1006, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988).
In the instant case, the Government complied with the Rule 12(b) requirement that it raise
its defenses at first opportunity. Prohibiting the Government from asserting a jurisdictional defense
after it pursues a dismissal on the merits would limit the Government's litigation options. Such a
prohibition would enhance the ability of FTCA plaintiffs to take advantage of the waiver of sovereign
immunity. As an enhancement in favor of plaintiffs, such a prohibition would operate as an expansion
of the waiver. Courts may not expand the waiver. Kubrick, 444 U.S. at 117-18, 100 S.Ct. at 356-57.
Thus, we find that just because t he Government chose to pursue a dismissal on the merits
prior to pursuing a jurisdictional defense, that does not mean that the Government waived its
jurisdictional defense under Rule 12(h)(1). Flory failed to properly serve the Attorney General, failed
to correct that error when the Government asserted insufficiency of service as a defense, and failed
to show good cause for the defective service. Therefore, the lower court's dismissal for insufficiency
of service is AFFIRMED.
Because the dismissal of Flory's complaint is affirmed, Liberty Mutual Insurance Company's
motion to intervene, asserting its right to subrogation as a result of its payments of health and welfare
and workers' compensation benefits to Flory is DENIED as moot.