and defendants' alternative motion to dismiss or for summary judgment.
Plaintiffs, on or about January 6, 1984, caused a letter and an untitled pleading to be delivered to my chambers. Basically, plaintiffs request a judgment by default against all five defendants. The pleading was filed January 26, 1984 and will be treated as a motion for default judgment. On January 9, 1984 defendants, through their counsel, the United States Attorney's Office, filed their alternative motion to dismiss or for summary judgment. Plaintiffs' complaint was filed on October 31, 1983. Under Rule 12 of the Federal Rules of Civil Procedure, the defendants, all agencies of the United States, have sixty (60) days after service to file an answer. Thus, even if the complaint was properly and immediately served, filing defendants' motion would be no more than ten (10) days late. Plaintiffs' motion for default must be denied. I do not perceive any possible way in which a ten-day delay (if there even was a delay) could have prejudiced the plaintiffs. More importantly, Rule 55(e) of the Federal Rules of Civil Procedure provides that "no judgment by default shall be entered against the United States or any officer or agency thereof unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." Plaintiffs have not met this burden. Defendants' motion for summary judgment, on the other hand, will be granted.
Defendants' alternative motion contains various arguments in support of dismissal or summary judgment. Defendants contend that (1) the complaint fails to state a jurisdictional basis for waiver of sovereign immunity supporting a civil suit against the United States or the captioned agencies in federal court; (2) there was improper service of process under the federal rules; (3) plaintiffs' exclusive remedy against the United States lies under the Federal Employees' Compensation Act (FECA), 5 U.S.C. §§ 8101-8193; and (4) plaintiffs have not met the statutory jurisdictional prerequisite for a suit under the Federal Tort Claims Act (FICA), 28 U.S.C. §§ 1346(b), 2671 et seq.
As to defendants' argument that the complaint fails to allege jurisdiction or waiver of sovereign immunity, the fact that plaintiffs' filed the complaint pro se militates against dismissal on those grounds. In Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam), the Supreme Court held that pro se pleadings were not to be held to the same high standards as those drafted by counsel. While Haines cannot obviously cure every defect in a pro se complaint, I have chosen to overlook these defects in order to address defendants' other contentions.
Likewise, as to the argument that plaintiffs clearly have not met all the requirements of Rule 4 for service of process, I will not grant dismissal on those grounds. The authors of the treatise on Federal Practice and Procedure have stated:
The general attitude of the federal courts is that the provisions of Rule 4 should be liberally construed in the interest of doing substantial justice and that the propriety of service in each case should turn on its own facts within the limits of the flexibility provided by the rule itself. This is consistent with the modern conception of service of process as primarily a notice-giving device. In addition, the avoidance of dismissals for improper service has the desirable objective of promoting trials and the disposition of cases on their merits.