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Braxton v. United States

February 25, 1987



Weis, Becker, and Hunter, Circuit Judges.

Author: Weis


WEIS, Circuit Judge.

The issue in this case is whether counsel's lapse in monitoring service of process coupled with a private process server's unexplained failure to timely serve a complaint pursuant to Fed. R. Civ. P. 4 is a proper ground for dismissal of the suit. We conclude that inadvertence does not excuse compliance with the Rule. We further decide that a letter sent by a deputy court clerk calling counsel's attention to the problem after the time had run did not extend the period for service. Accordingly, we will affirm the order of the district court dismissing the complaint.

This case is an action for medical malpractice under the Federal Tort Claims Act. Plaintiff alleges that she sustained personal injury resulting from the inappropriate prescription of medication by a National Health Service Corps physician at the Comprehensive Health Clinic in Philadelphia. The Clinic is a facility organized and maintained by the Public Health Service under the jurisdiction of the Department of Health and Human Services.

Because this appeal turns on untimely service of process, a chronology of critical dates is helpful in understanding the issues.

Through her counsel, plaintiff filed an administrative tort claim against the government on September 18, 1984. It was denied six months later by the Secretary of Health and Human Services. Plaintiff filed her complaint in the district court on September 18, 1985, the last day under the statutorily authorized limitations period. 28 U.S.C. ยง 2401(b). That same day, pursuant to the plaintiff's motion, Dennis Richman Services, Inc. was appointed to serve the summons and complaint.

In December, 1985, plaintiff's counsel contacted Richman to ascertain the status of the suit and learned that service had not yet been made. He was assured, however, that it would be completed promptly. The last permissible day for service under the 120-day provision of Rule 4(j) was January 16, 1986.

In a letter dated March 31, 1986, the courtroom deputy clerk to District Judge Joseph L. McGlynn, Jr. wrote plaintiff's counsel that service had not been made. The letter further notified counsel that the judge "has directed that you take the steps necessary to have service made within fifteen (15) days from the date of this letter in accordance with Rule 4(j) . . . If service is not made within the time set forth above, the Court will consider dismissal of the action. . . ."

Counsel immediately told Richman about the letter. On April 3, 1987, Richman personally served the United States Attorney's Office in Philadelphia and dispatched certified letters with copies of the summons and complaint to the Attorney General and the Secretary of Health and Human Services in Washington, D.C. In due course, the Attorney General's office returned the postal receipt dated April 15, 1986. The receipt from Health and Human Services was dated April 16, 1986.

The government moved to dismiss the complaint on the ground that plaintiff had not served defendants within the 120-day period. In response, plaintiff urged the court to consider a motion for enlargement of time to serve defendants under Fed. R. Civ. P. 6(b) nunc pro tunc.

The district court granted the dismissal, ruling that the "plaintiff's sole reliance on the assurances of a third party [Richman] fails to rise to the level of good cause within the meaning of Rule 4(j)." The court treated the motion for an extension of time as one filed under Rule 6(b)(2), but denied it because plaintiff had not shown that the failure to serve within the prescribed period was the result of "excusable neglect."

On appeal, plaintiff contends that the district court clerk's letter of March 31, 1986 was "nothing more or less than the Court's exercise of its inherent power to extend an applicable time period." She argues that had an application been made under Rule 6(b), the court could have granted the request for a fifteen-day extension, and the fact that the court acted sua sponte "can make no difference in terms of the effect of the court's action." Brief for Appellant at 14-15. The ...

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