The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:20-CV-176-FL
CAROLYN SAYLON, Representative of )
Saleh A. Saylon Estate, )
)
Plaintiff, )
)
ORDER
v. )
)
UNITED STATES OF AMERICA, )
)
Defendant.1 )
This matter is before the court on defendant’s motion to dismiss (DE 21) and plaintiff’s
motions for clarification and for extension of time (DE 26, 27). The issues raised are ripe for ruling.
For the following reasons, defendant’s motion to dismiss is denied without prejudice and plaintiff’s
motions are granted in part to the extent set forth herein.
STATEMENT OF THE CASE
Plaintiff commenced this action pro se on April 28, 2020, by filing a motion to proceed in
forma pauperis, with a proposed complaint, asserting a claim under the Federal Tort Claims Act
(“FTCA”) for medical negligence in the care of her husband, now deceased, at a veterans hospital.
Plaintiff identified former-defendants, government employees Carla E. Sturdivant (“Sturdivant”)
and Chastina Brown (“Brown”), as two nurses involved in care of plaintiff’s husband. Plaintiff
seeks damages, interest, fees, and costs.
1 The court constructively amends the caption of this order to reflect automatic substitution of defendant United
States of America of formerly named defendants Carla Sturdivant, Employee at the Veteran Hospital, in her individual
capacity; and Chastina Brown, Employee at the Veteran Hospital in her individual capacity.
Memorandum and Recommendation (“M&R”) entered May 5, 2020, recommended denial
of the motion to proceed in forma pauperis on the basis that a decedent’s estate is not a natural
person that may qualify for in forma pauperis status. The M&R also noted that plaintiff as a pro
se party may not represent the interests of others, including her deceased husband’s estate.
Prior to this court’s review of the M&R, plaintiff paid the filing fee. Accordingly, on May
26, 2020, the court vacated the M&R and directed the clerk to file the complaint and issue the
summons. The court also stayed the matter for 30 days to allow plaintiff to secure counsel,
directing plaintiff to file a notice within that time specifying whether she wishes to attempt to
proceed pro se or to extend the stay.2 Upon plaintiff’s failure to timely file notice, the court
directed plaintiff to show cause why the matter should not be dismissed without prejudice for
failure to prosecute. Upon plaintiff’s response thereto asserting plaintiff’s desire to proceed, the
court lifted the stay on July 22, 2020, and extended the deadline for service 90 days.
On August 17, 2020, defendant filed a certification of scope of employment and
substitution, as well as the instant motion to dismiss under Federal Rule of Civil Procedure
12(b)(5) on the basis that plaintiff failed to serve properly the United States, and reserving the right
to move to dismiss at a later date for failure to state a claim.
Plaintiff responded to the government’s motion to dismiss on September 1, 2020, through
the instant motion for clarification, asserting that she completed service on former defendants
Sturdivant and Brown, and seeking clarification that she was allowed a 90 day extension in order
to secure representation of an attorney. Plaintiff also inquires whether, if she cannot obtain an
attorney within this time frame, she can bring her case back into federal court at a later date.
2 The court also directed the clerk to send plaintiff a pro bono letter, and the case subsequently was submitted
to the pro bono panel, however no pro bono counsel or other counsel has entered an appearance.
Plaintiff filed the instant motion for extension of time on September 17, 2020, seeking an
additional 90 day extension to cure service deficiencies, and to secure representation by counsel
for her deceased husband’s estate.
COURT’S DISCUSSION
A. Insufficient Service
Under Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.” Fed. R.
Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period.” Id.
Service on the United States, and its agencies or employees, is governed by Rule 4(i).
Under that rule, to serve the United States, a party must: 1) “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,” and 2) “send a copy of each by registered or certified mail to the
Attorney General of the United States at Washington, D.C.” Fed. R. Civ. P. 4(i)(1). To serve an
officer or employee sued individually, a party must serve the United States, in addition to serving
the officer or employee individually. Fed. R. Civ. P. 4(i)(3).
Here, plaintiff served neither the former individual defendants, nor the United States, in
accordance with Rule 4(i). While returns of service were filed as to Sturdivant and Brown
individually (DE 13, 19), and plaintiff filed proof of service on the United States Attorney on
October 5, 2020, (DE 28), plaintiff has not filed proof of service upon the Attorney General of the
United States, in accordance with Rule 4(i)(1)(B).
Nevertheless, Rule 4 states that “[t]he court must allow a party a reasonable time to cure
its failure to . . . serve the United States under Rule 4(i)(3), if the party has served the United States
officer or employee.” Fed. R. Civ. P. 4(i)(4). Where plaintiff did in fact serve the individual
employees, former defendants, prior to certification of substitution, Rule 4(i)(4) directs the court
to allow plaintiff a “reasonable time to cure” the failure to serve the United States. Id.
The issue remains, however, how much time is reasonable under the circumstances of this
case to cure the failure to serve the United States. On the one hand, plaintiff already has been
granted once a 90 day period to effectuate service. On the other hand, plaintiff has consistently
reiterated her desire to secure counsel and proceed through counsel. Moreover, plaintiff has
demonstrated continued efforts to serve properly defendant, as evidenced through proof of service
filed October 5, 2020. That proof of service is one step short of effectuating proper service on the
sole defendant now in this case, the United States, with the final step remaining being to send a
copy of the summons and complaint by registered or certified mail to the Attorney General of the
United States at Washington, D.C. See Fed. R. Civ. P. 4(i)(1)(B).
Therefore, an additional extension of time is warranted to allow plaintiff to effectuate
service on the United States. Where this service is partially complete, and the remaining step is
not onerous, the court allows plaintiff a period of 30 days from the date of this order to file proof
of service. The court warns plaintiff that no further extensions for service will be allowed, absent
compelling circumstances, and failure to serve defendant within this time may result in dismissal
of the action without prejudice. In sum, defendant’s motion to dismiss for insufficient service is
denied without prejudice, and plaintiff is allowed an extension of 30 days to file proof of service,
in accordance with the foregoing.
B. Motion for Clarification and Extension
In her motion for clarification and extension, plaintiff suggests that she seeks an additional
period of time of 90 days for a stay of case activities to allow her to secure counsel. Plaintiff
already has had over 150 days, since May 26, 2020, through several previous stays and extensions,
in which to secure counsel. In her latest motion, filed September 17, 2020, plaintiff states that she
has “several attorney[s] that are contemplating on taking the case.” (DE 27 at 1). However, no
attorneys have entered an appearance.
In the interest of the “just, speedy, and inexpensive determination of every action,” Fed. R.
Civ. P. 1, the court does not find good cause to stay case activities for the 90 days requested.
Rather, plaintiff is allowed a stay of case activities for an additional 30 days to secure counsel,
commensurate with the 30 day extension for service. In this respect, plaintiff’s motions for
clarification and extension are granted in part and denied in part.3
Finally, the court addresses the suggestion in defendant’s motion that plaintiff’s
continuation of the action pro se is futile, and the court may sua sponte dismiss the action for lack
of representation by counsel. While it is the general rule that federal courts may not permit
“corporations, partnerships, or associations to appear in federal court otherwise than through a
licensed attorney,” Rowland v. California Men’s Colony, Unit II Men's Advisory Council, 506
U.S. 194, 202 (1993), and some circuits have extended this principle to the rule that a pro se litigant
may not represent an estate, see, e.g., Pridgen v. Andresen, 113 F.3d 391, 392–93 (2nd Cir.1997),
defendant does not cite, and the court has not identified, a binding opinion by the United States
Court of Appeals for the Fourth Circuit addressing this issue. Indeed, in an unpublished decision,
3 A dismissal of the instant action without prejudice does not preclude plaintiff from refiling at a later date.
However, the court lacks jurisdiction to provide plaintiff with an advisory opinion on the potential legal consequences
of returning to federal court at a later date, including the effect, if any, of such a refiling upon issues such as statute of
limitations or exhaustion of administrative remedies.
the Fourth Circuit recognized the lack of binding precedent on point, and suggested this rule may
be subject to exceptions. See Witherspoon v. Jeffords Agency, Inc., 88 F. App’x 659, 659 (4th Cir.
2004) (remanding for further proceedings considering whether pro se litigant “is a beneficiary of
the Estate, whether there are other beneficiaries, and whether there are any creditors involved” in
order to determine whether the pro se litigant “must obtain counsel to litigate on behalf of the
Estate’).
Accordingly, the court leaves for another day, if necessary, determination of defendant’s
suggestion that dismissal may be warranted based upon plaintiff’s pro se status.
CONCLUSION
Based on the foregoing, defendant’s motion to dismiss (DE 21) is DENIED WITHOUT
PREJUDICE, and plaintiffs motions for clarification and for extension of time (DE 26, 27) are
GRANTED IN PART and DENIED IN PART as set forth herein. In particular, plaintiff is allowed
an extension of time of 30 days in which to file proof of completed service on defendant and to
secure counsel. The court warns plaintiff that no further extensions for service will be allowed,
absent compelling circumstances, and failure to serve defendant within this time may result in
dismissal of the action without prejudice.
SO ORDERED, this the 9th day of November, 2020.
United States District Judge