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Gonzalez v. Doe

United States District Court, M.D. Pennsylvania

September 24, 2019

JUAN GONZALEZ, Plaintiff
v.
JOHN DOE #1 and JOHN DOE #2, Individually and in their official capacities as state police officers for the Pennsylvania State Police; RICHARD ROE #1 and RICHARD ROE #2, Individually and in their official capacities as agents for the United States Department of Homeland Security, U.S. Immigration and Customs Enforcement; PENNSYLVANIA STATE POLICE and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants.

          MEMORANDUM

          JAMES M. MUNLEY United States District Judge

         This matter is presently before the Court, sua sponte, upon its review of Plaintiff’s response to the undersigned’s August 28, 2019 Order, directing Plaintiff to show cause as to why this action should not be dismissed for failure to effect proper service upon the remaining Defendants in the above-captioned action. (Doc. 15, Doc. 16). For the reasons stated herein, Plaintiff shall be granted an enlargement of time pursuant to Rule 4(m) of the Federal Rules of Civil Procedure to properly effect service upon the United States Department of Homeland Security (“DHS”) and United States Immigration and Customs Enforcement (“ICE”).[1]

         Background

         Plaintiff initiated the above-captioned action through the filing of a counseled complaint on November 26, 2018. (Doc. 1). On January 14, 2019, the Court issued an Order directing Plaintiff to file a status report regarding service of the complaint, which had not yet been achieved. (Doc. 3). Plaintiff, through counsel, filed a responsive letter on January 24, 2019. (Doc. 4). Specifically, Plaintiff’s counsel notified the Court that he mailed the complaint and summons to the Federal Defendants on December 24, 2018 by United States First Class mail. (Id.) Plaintiff did not, however, file an affidavit of service representing his compliance with Rule 4(i) of the Federal Rules of Civil Procedure relating to serving the United States and its agencies.

         As the docket still did not reflect service upon the Federal Defendants, and over ninety (90) days had passed since the filing of the complaint, the Court issued an Order on May 13, 2019 directing Plaintiff to file a proof of service of the summons and complaint. (Doc. 9). Plaintiff submitted the requested proof of service on May 20, 2019, which indicated that a process server had served Joyce Artis of the DHS Office of Chief Counsel the same day. (Doc. 2). The proof of service further provided that Ms. Artis was designated by law to accept service of process on behalf of DHS. (Id.) To date, no entry of appearance has been made on behalf of the Federal Defendants.

         Upon noting that no activity had occurred in this case since serving the Federal Defendants on May 20, 2019, the Court issued another Order on August 9, 2019. (Doc. 13). Therein, the Court directed Plaintiff to make an appropriate filing to further this action, lest it be subject to dismissal for failure to prosecute. (Id.) In response, Plaintiff filed a Motion for Entry of Default Judgment against the Federal Defendants on August 18, 2019. (Doc. 14). The Court denied Plaintiff’s motion on August 28, 2019, however, for failing to comply with the requirements of Rule 55 of the Federal Rules of Civil Procedure regarding default judgment. (Doc. 15). The Court additionally observed that Plaintiff had failed to timely serve the Federal Defendants in accordance with Federal Rule of Civil Procedure 4(m). (Id.)

         On September 1, 2019, Plaintiff filed a response to the Court’s August 28, 2019 Order. (Doc. 17). In his response, Plaintiff asserts that he properly moved for entry of default judgment against the Federal Defendants under Federal Rule of Civil Procedure 55(d). (Doc. 16, Pl.’s response at 2-5). Plaintiff also submits that he followed the service procedures contemplated by Federal Rule of Civil Procedure 4(m), as he achieved service on the Federal Defendants as of May 20, 2019. (Id. at 8-9). These arguments, as set forth in Plaintiff’s September 1, 2019 response, are the subject of the Court’s present review.

         Discussion

          “Rule 4(i) [of the Federal Rules of Civil Procedure] governs service of process against the United States, its agencies, corporations, officers, or employees.” Shore v. Henderson, 168 F.Supp.2d 428, 430 (E.D. Pa. 2001). To serve the United States pursuant to Rule 4(i)(1), a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought--or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk-or
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to ...

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