On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 85-5855.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Appellant Francis Green brought suit against defendants-appellees Humphrey Elevator and Truck Company ("Humphrey") and The Maintenance Company ("Maintenance") for injuries suffered during employment in New Jersey on October 9, 1983, allegedly as a result of appellees' negligence. See Brief and Appendix for Appellant, Francis Green at 8A-11A (Reference to Appendix for Appellant hereinafter "AA"). Appellant, through his counsel, Nino V. Tinari, Esquire, filed his complaint on October 9, 1985, the last day of the two-year statute of limitations governing his claim. N.J. Stat. Ann. § 2A:14-2 (West 1952); see AA at 54A.*fn1 On February 5, 1986, 119 days after filing the complaint, appellant mailed copies of the summons and complaint to appellees.*fn2 See AA at 25A, 54A. Appellee Humphrey received appellant's mailed service on February 10, 1986, 124 days after filing; appellee Maintenance received the mailed service on February 11, 1986, 125 days after filing.
On February 13, 1986, Judge VanArtsdalen,*fn3 issued an order notifying appellant that, unless good cause was shown within ten days why service was not made within 120 days of filing the complaint, the action would be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(j). AA at 39A. In response, Mr. Tinari filed a certification with the district court on February 18, 1986, asserting that copies of the summons and complaint, together with a notice and acknowledgment form, had been mailed to appellees on February 5, 1986 and that he had not received the return acknowledgments. Mr. Tinari offered no further explanation in that certification. In addition, motions to dismiss appellant's complaint for failure to comply with Rule 4(j) were filed by Humphrey on March 27, 1986, and Maintenance on May 12, 1986. See AA at 30A, 46A. Although both of these motions were served upon Mr. Tinari, no response by appellant was ever filed with the court. On June 19, 1986, Judge VanArtsdalen granted appellees' motions and dismissed the complaint without prejudice pursuant to Rule 4(j). AA at 54a. In so doing, he ruled that service was complete for the purposes of the Rule 4(j)*fn4 time limit upon receipt of the summons and complaint, rather than upon mailing, and that appellant had failed to sow good cause why service was not made within the 120-day period. Id. at 56A. This appeal ensued.
At the outset, we note that our formulation of the question involved in this case differs from that addressed by the district court. Judge VanArtsdalen considered the question whether service is made at the time the summons and complaint are mailed by a plaintiff or at the time they are received by a defendant, and concluded that service is made at the time of receipt. We think the question, more appropriately, is at what time is service effected for purposes of Fed. R. Civ. P. 4(j) when service by the plaintiff is attempted pursuant to Rule 4(c)(2)(C)(ii), but an acknowledgment is not returned by the defendant. Because the legislative history of the Federal Rules of Civil Procedure Amendments Act of 1982, which revised Rule 4 and added subsection (j), indicates a strong congressional intent to provide defendants with actual notice of claims against them, and because the limited case law and commentary on Rule 4(j) proceed from that premise, we conclude that under such circumstances service ordinarily should be considered made when personal service is made upon the defendant. Accordingly, we will affirm the district court's dismissal of appellant's complaint for non-compliance with Rule 4(j).
The crux of this appeal concerns whether "service" of a summons and complaint, when undertaken pursuant to Rule 4(c)(2)(C)(ii),*fn5 is made at the time of mailing by a plaintiff. This determination requires construing the language of Rule 4(j), which, inter alia, imposes a 120-day time limit on plaintiff for serving a defendant. Because such construction is a question of law, our standard of review if plenary. See United States v. Adams, 759 F.2d 1099, 1106 (3d Cir. 1985).
Rule 4(j) provides in relevant part as follows:
(j) Summons: Time Limit for Service.
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 required cannot show good cause why such service was not made within that period, the action shall be dismissed upon the court's own initiative with notice to such party or upon motion.
Fed. R. Civ. P. 4(j). Rule 4(j) obviously is not explicit as to exactly when service is "made." The question is further complicated when a plaintiff utilizes the provisions of Rule 4(c)(2)(C)(ii) for service by mail. Moreover, the gravity of the ruling this Court is asked to make is maximized when, as here, affirmance of a dismissal without prejudice would render the appellant's cause of action subsequently time-barred.*fn6 Both the legislative history accompanying the adopting of Rule 4(j) and the limited case law interpreting it, however, lead us to conclude that personal ...