John Mann v. David Castiel

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 14, 2012 Decided June 1, 2012

No. 10-7109

JOHN B. MANN, ET AL.,

APPELLANTS

v.

DAVID CASTIEL, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-02137)

Robert B. Patterson, pro se, argued the cause for appellants.

With him on the briefs was Ronald B. Patterson.

David G. Wilson argued the cause and filed the brief for

appellees.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: On the basis of Rule 4(m) of the

Federal Rules of Civil Procedure, the district court dismissed

plaintiffs’ case without prejudice for failure to prove proper

service of three defendants or to show cause therefor. See Mann

2

v. Castiel, 729 F. Supp. 2d 191, 202 (D.D.C. 2010). On appeal,

plaintiffs contend that this was error because their failure to

timely file proof of service pursuant to Rule 4(l) did not

invalidate good service pursuant to Rule 4(m); the three

defendants waived any objections to service by failing to object

in what plaintiffs characterize as their initial responsive pleading;

and it was an abuse of discretion to deny additional time to effect

service on other defendants.

Because plaintiffs failed to demonstrate a waiver by

defendants pursuant to Rule 4, they offer no basis on which this

court can conclude that the district court clearly erred in finding

plaintiffs failed to prove proper service. Plaintiffs rely on

defendants’ acknowledgment of being served without

considering defendants’ suggestion of improper service.

Plaintiffs also confuse defendants’ motion for a stay of the case,

and to dismiss the case in its entirety, with a responsive pleading

joining issue with plaintiffs’ claims. The record further

demonstrates plaintiffs failed to show cause, much less good

cause, for their failure to effect timely service and thus the

district court acted within its discretion in denying additional

time to effect service. Accordingly, we affirm the dismissal of

the case without prejudice.

I.

On November 13, 2009, John Mann, Robert Patterson, and

their two wholly owned companies sued 31 defendants alleging

various violations of federal and state law, including

racketeering, larceny, negligence, unjust enrichment, and unfair

trade practices in connection with defendants’ involvement in the

satellite communications industry. Complaint ¶¶ 199-382; see

Ellipso, Inc. v. Mann, et al., No. 1:05-cv-01186 (D.D.C. 2008).

On March 9, 2010 – 116 days after the complaint was filed – the

district court notified plaintiffs of the requirements of Rule 4(m)

3

and ordered them to file proof of service by March 22, 2010 or

to “show cause why this case should not be dismissed.” Order,

Mar. 9, 2010.

On February 12, 2010, three defendants – David Castiel,

Cameran Castiel, and Ambassador (Ret.) Gerald Helman –

moved for a stay of the case pending the conclusion of a pending

bankruptcy proceeding, In re Ellipso, Inc., No. 1:09-00148

(Chap. 11) (Bankr. D.C. 2009). They acknowledged that

summonses had been issued for some defendants and that they

had been “served” in January 2010. Defs.’ Mot. for Stay or,

Alternatively, Mot. for Enlargement of Time in which to File

Answer (“Stay Motion”) ¶ 6 (Feb. 12, 2010). On March 25,

2010, plaintiffs belatedly responded to the district court’s order,

stating that both Castiels, Ambassador Helman, and a fourth

defendant had been served, and requesting a 60-day extension to

effect service on the remaining defendants; they provided no

proof of service or explanation for their tardy response. Pls.’

Resp. to Court’s Order Concerning Service of Process Entered

Mar. 12, 2010 (“Response”) ¶¶ 1, 8 (Mar. 25, 2010). On April

7, 2010, the three defendants moved to dismiss the case pursuant

to Rule 4(m). They acknowledged receiving the summons and

a copy of the complaint from “some person” but questioned

whether they had been properly served, noting that “[n]o proofs

of service have been submitted as required by . . . [the] March 9

Order,” and that plaintiffs had failed, “even at this late date,” to

produce returns of service sworn to by a process server. Jt. Mot.

of Defs. to Reject Pls.’ Late Resp. to Court’s Order Concerning

Service of Process Entered Mar. 12, 2010 and to Dismiss Action

(“Motion to Dismiss”) ¶¶ 21–22 (Apr. 7, 2010). Plaintiffs did

not file a response to the Motion to Dismiss.

The district court dismissed plaintiffs’ case without

prejudice pursuant to Rule 4(m) on August 3, 2010, because

plaintiffs failed “to establish that any of the named defendants

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were served within 120 days of filing their complaint” or offer

an adequate excuse for their failure to do so. Mann, 729 F. Supp.

2d at 196. Declining to entertain plaintiffs’ untimely Response,

the district court noted that they had not filed a motion for an

extension of time to respond to the March 9, 2010 Order, despite

two opportunities to do so. Id. at 195. Even if it had entertained

the Response, the district court explained that “it would still find

that plaintiffs have not carried their burden” to show “good

cause” warranting an extension of time to effect service pursuant

to Rule 4(m), id. at 197, or even “some cause” warranting a

discretionary extension, id. at 200.

II.

“Service of process, under longstanding tradition in our

system of justice, is fundamental to any procedural imposition on

a named defendant.” Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 348, 350 (1999). Under the federal

rules enacted by Congress, federal courts lack the power to assert

personal jurisdiction over a defendant “unless the procedural

requirements of effective service of process are satisfied.”

Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C.

Cir. 2002); see Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co.,

Ltd., 484 U.S. 97, 104 (1987); Miss. Publ’g Corp. v. Murphee,

326 U.S. 438, 444–45 (1946). Service is therefore not only a

means of “notifying a defendant of the commencement of an

action against him,” but “a ritual that marks the court’s assertion

of jurisdiction over the lawsuit.” Okla. Radio Assocs. v. FDIC,

969 F.2d 940, 943 (10th Cir. 1992). Consequently, courts have

“uniformly held . . . a judgment is void where the requirements

for effective service have not been satisfied.” Combs v. Nick

Garin Trucking, 825 F.2d 437, 442 & n.42 (D.C. Cir. 1987)

(collecting cases); cf. Cambridge Holdings Grp., Inc. v. Federal

Ins. Co., 489 F.3d 1356, 1360 (D.C. Cir. 2007).

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Rule 4(c) of the Federal Rules of Civil Procedure provides,

in relevant part, that “[a] summons must be served with a copy

of the complaint. The plaintiff is responsible for having the

summons and complaint served within the time allowed by Rule

4(m).” Rule 4(m) provides, in relevant part:

If a defendant is not served within 120 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. But if the

plaintiff shows good cause for the failure, the court

must extend the time for service for an appropriate

period.

FED. R. CIV. P. 4(m). Rule 4 further specifies who may make

service, see FED. R. CIV. P. 4(c)(2) & (3), and how a waiver of

service may be proved, see FED. R. CIV. P. 4(d). “Unless service

is waived, proof of service must be made to the [district] court.”

FED. R. CIV. P. 4(l)(1). “[P]roof must be by the server’s

affidavit,” unless service is made by the United States marshal

(or deputy marshal). Id.

By the plain text of Rule 4, the plaintiff has the burden to

“demonstrate that the procedure employed to deliver the papers

satisfies the requirements of the relevant portions of Rule 4.” 4A

C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE

§ 1083 (3d ed. 2002 & Supp. 2012); see Light v. Wolfe, 816 F.2d

746, 751 (D.C. Cir. 1987); Grand Entm’t Grp., Ltd. v. Star

Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993); Aetna Bus.

Credit, Inc., v. Universal Decor & Interior Design, Inc., 635

F.2d 434, 435 (5th Cir. 1981). Seeking to demonstrate

compliance with Rule 4, plaintiffs rely on Rule 4(l)(3) and

defendants’ waiver by pleading as well as cause for delay in

6

effecting proof of service. None of their contentions is

persuasive.

A.

Rule 4(l)(3) provides: “Failure to prove service does not

affect the validity of service. The court may permit proof of

service to be amended.” FED. R. CIV. P. 4(l)(3). Although the

district court cannot be assured that it has jurisdiction over a

defendant until the plaintiff files proof of service, the defendant

“becomes a party officially, and is required to take action in that

capacity . . . upon service.” Murphy Bros., 526 U.S. at 350. That

is, a defendant must answer the complaint “within 21 days after

being served,” FED. R. CIV. P. 12(a)(1)(A), even if the plaintiff

fails timely to prove service by filing a server’s affidavit or files

defective proof of service, for the district court “may permit

proof of service to be amended,” FED. R. CIV. P. 4(l)(3); see

O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1402

(7th Cir. 1993) (interpreting FED. R. CIV. P. 4(g), the precursor

of current Rule 4(l)).

Plaintiffs offered no evidence to the district court to show

that the three defendants had been served, much less properly

served. Rule 4(l)(3) may prevent a defendant from avoiding the

obligation to respond to a summons or from filing an untimely

answer on the grounds that the plaintiff delayed filing proof of

service or filed defective proof of service that had to be

amended, but it does not excuse the plaintiff’s failure to file any

proof of service. See WRIGHT & MILLER § 1130. The plaintiff

must either make proof of service or come within an exception

provided by the rule.

B.

Rule 4(d) contains a procedure for establishing waiver of

service of a summons. It requires the plaintiff to make an

unequivocal request for a waiver in writing, the defendant to

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return the waiver form within a reasonable time, and the plaintiff

to file the waiver. The plaintiff must “notify . . . a defendant that

an action has been commenced and request that the defendant

waive service of a summons.” FED. R. CIV. P. 4(d)(1). The

notice and waiver request must be accompanied by “two copies

of a waiver form.” FED. R. CIV. P. 4(d)(1)(C). If the defendant

signs and timely returns the waiver form and the plaintiff files it,

“proof of service is not required” and it is “as if a summons and

complaint had been served.” FED. R. CIV. P. 4(d)(4). Waiving

service of a summons does not waive any objection to personal

jurisdiction or to venue. FED. R. CIV. P. 4(d)(5).

Plaintiffs do not claim to have followed this waiver

procedure, and a defendant’s knowledge that a complaint has

been filed is not sufficient to establish that the district court has

personal jurisdiction over the defendant. See, e.g., Bridgeport

Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 623 (6th

Cir. 2004); McMasters v. United States, 260 F.3d 814, 817 (7th

Cir. 2001). Instead, plaintiffs rely on the defendants’ statement

in their Stay Motion that they had been “served.” The question

presented is whether this acknowledgment sufficed to show a

waiver and barred the three defendants from challenging the

validity of service by moving for dismissal pursuant to Rule

4(m). Assuming a waiver could be accomplished other than as

prescribed in Rule 4(d), cf. FED. R. CIV. P. 12(h), the district

court properly concluded plaintiffs failed to show a waiver of

service pursuant to Rule 4 by the three defendants. See Mann,

729 F. Supp. 2d at 196.

First, in focusing on defendants’ Stay Motion, plaintiffs

ignore defendants’ Motion to Dismiss in which they questioned

whether they had been properly served. In that motion

defendants clarified that while they had received a copy of the

summons and complaint from “some person,” it was “unknown”

whether this person was qualified to serve process. Stay Motion

8

¶ 6; see FED. R. CIV. P. 4(c)(2). Further, defendants argued that

it was “very suspicious” that plaintiffs “even at this late date and

under Court order, did not produce any returns of service sworn

to by a process server.” Stay Motion ¶ 6.

Second, plaintiffs’ alternative suggestion of waiver is based

on a flawed premise. Plaintiffs maintain the three defendants

waived any objections to the service of process by failing to

argue that the service of process was defective in their “initial

responsive pleading”: the Stay Motion. Appellants’ Br. 12.

Plaintiffs mischaracterize the Stay Motion. That motion was

neither a responsive pleading, such as an answer or third party

complaint addressing the allegations of the complaint, see FED.

R. CIV.P. 8(b); WRIGHT & MILLER § 1348, nor a dispositive

motion raising a defense listed in Rule 12(b), see Glater v. Eli

Lilly & Co., 712 F.2d 735, 738 (4th Cir. 1983) (citing FED. R.

CIV. P. 12(h)). As our sister circuits explain, a motion to stay a

case or for an extension of time to answer the complaint is hardly

a “defensive move” under Rule 12. See Conrad v. Phone

Directories Co., Inc., 585 F.3d 1376, 1383 n.2 (10th Cir. 2009);

Aetna Life Ins. Co. v. Alla Med. Serv., Inc., 855 F.2d 1470, 1475

(9th Cir. 1988); see generally WRIGHT & MILLER § 1386. It is

true that “when ‘a party seeks affirmative relief from a court, it

normally submits itself to the jurisdiction of the court with

respect to the adjudication of claims arising from the same

subject matter,’” PaineWebber Inc. v. Chase Manhattan Private

Bank, 260 F.3d 453, 460–61 (5th Cir. 2001) (quoting Bel-Ray

Co. v. Chemrite (Pty) Ltd., 181 F.3d 435, 443 (3d Cir. 1999)),

but a motion to stay proceedings (or to extend the time to

answer) “signals only that a defendant wishes to postpone the

court’s disposition of a case. Far from indicating that a

defendant intends to defend a suit on the merits, a motion to stay

can serve to indicate the opposite – that a defendant intends to

seek alternative means of resolving a dispute, and avoid litigation

in that jurisdiction.” Gerber v. Rordan, 649 F.3d 514, 519 (6th

9

Cir. 2011); see PaineWebber, 260 F.3d at 461; United States v.

51 Pieces of Real Property, 17 F.3d 1306, 1314 (10th Cir. 1994).

C.

Plaintiffs’ contentions that the district court abused its

discretion in denying an extension of time to effect service on

other defendants fare no better.

1. Rule 4(m) provides that the district court “must extend”

the 120-day deadline for service “if the plaintiff shows good

cause for the failure” to meet the deadline. FED. R. CIV. P. 4(m).

Good cause exists “when some outside factor . . . rather than

inadvertence or negligence, prevented service,” Lepone-Dempsey

v. Carroll Cnty. Com’rs, 476 F.3d 1277, 1281 (11th Cir. 2007),

for example, a defendant’s intentional evasion of service, see

H.R. 7152 Amendments to Federal Rules of Civil Procedure,

1982 U.S. Code Cong. & Admin. News 4434, 4446 n.25, or the

plaintiff proceeds in forma pauperis and was entitled to rely on

the United States marshal (or deputy marshal) to effect service,

see Dumaguin v. Sec’y of Health and Human Servs., 28 F.3d

1218, 1221 (D.C. Cir. 1994); Rance v. Rocksolid Granit USA,

Inc., 583 F.3d 1284, 1287–88 (11th Cir. 2009) (collecting cases).

In Moore v. Agency for International Development, 994 F.2d

874, 877 (D.C. Cir. 1993), this court concluded a pro se plaintiff,

who had made two attempts to serve the defendants shortly after

filing the complaint but had done so improperly, had shown

“good cause” where the defendants long delayed in responding

to the complaint and were represented by counsel who repeatedly

asked for extensions of time, causing the pro se plaintiff to “no

doubt believe[] the defendants had been properly served.” In

sum, “[g]ood cause means a valid reason for delay.” Coleman v.

Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002).

10

Plaintiffs offer no “valid reason” but suggest an institutional

consideration, namely that the district court should have granted

them additional time because postponing this litigation until the

close of the bankruptcy proceedings was in the interests of all

parties and judicial economy. Apparently plaintiffs filed the

instant lawsuit as a protective measure in the event their creditor

claims were not resolved to their satisfaction in bankruptcy and

so made minimal, and ultimately insufficient, efforts to preserve

their right to continue to litigate their district court claims based

on the November 13, 2009 complaint. In any event, the

institutional argument appeared only in their untimely Response,

which the district court refused to consider in the absence of a

request in their Response or in a separate motion for an extension

of time to respond to the March 9, 2010 Order. Mann, 729 F.

Supp. 2d at 195. Although “[i]n the absence of any motion for

an extension, the trial court ha[s] no basis on which to exercise

its discretion” to grant an extension after a filing deadline has

passed, Smith v. District of Columbia, 430 F.3d 450, 457 (D.C.

Cir. 2005); see FED. R. CIV. P. 6(b), we need not decide if this

principle applies here, where a rule mandated that the district

court exercise its discretion. The district court in fact considered

the arguments in the Response and found them to lack merit.

In their Response, plaintiffs claimed that nine corporate

defendants involved in the ongoing bankruptcy proceeding

would be served “promptly” after that proceeding concluded

“within the next few weeks.” Response ¶ 2. The district court

found that it was unclear any of these nine defendants were

involved in the bankruptcy proceeding. Mann, 729 F. Supp. 2d

at 197. On appeal, plaintiffs do not challenge this finding.

Plaintiffs also claimed in their Response that summonses had

been issued for four other defendants. Response ¶ 6. The district

court noted that the case docket showed that a summons had

been issued for only one of the four. Mann, 729 F. Supp. 2d at

197. Again, plaintiffs do not challenge this finding on appeal.

11

Rather than convince the district court that plaintiffs had good

cause for failing to effect service, their Response unsurprisingly

convinced the district court “that plaintiffs have been careless at

best or untruthful at worst.” Id. Plaintiffs thus can show no

abuse of discretion by the district court in denying a extension of

time on the basis of good cause shown.

2. The Advisory Committee note for Rule 4(m) instructs

that the district court has discretion to extend the time for

effecting and filing proof of service even if the plaintiff fails to

show “good cause.” FED. R. CIV. P. 4, Advisory Committee

Note to 1993 Amendments, Subdivision (m). Other circuits to

consider the issue have held, with one exception, that Rule 4(m)

allows the district court to grant discretionary extensions. See

Coleman, 290 F.3d at 934; Horenkamp v. Van Winkle & Co.,

Inc., 402 F.3d 1129, 1132 (11th Cir. 2005) (collecting cases); but

see Mendez v. Elliot, 45 F.3d 75, 78 (4th Cir. 1995); see

generally WRIGHT & MILLER § 1137. They relied on the textual

reference in Rule 4(m) to the district court’s ability to “order that

service be made within a specified time,” FED. R. CIV. P. 4(m),

and the observation of the Supreme Court in Henderson v.

United States, 517 U.S. 654 (1996), that under Rule 4(m) district

courts have “discretion to enlarge the 120-period ‘even if there

is no good cause shown,’” id. at 662–63 (quoting FED. R. CIV. P.

4, Advisory Committee Note to 1993 Amendments, Subdivision

(m)); see id. at 658 n.5. In view of this authority and in the

absence of instruction from this court, the district court

concluded that Rule 4(m) required it to consider whether it

would grant, as a matter of discretion, an extension of time to

effect service. In that regard, the district court observed “no hard

list of considerable factors exist,” and looked to the Advisory

Committee’s suggestions of equitable factors. Mann, 729 F.

Supp. 2d at 198.

12

Whether the district court’s exercise of its discretion

pursuant to Rule 4(m) is cabined by Rule 6(b)(2)’s requirement

that “excusable neglect” be found, or by equitable factors,

compare Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir.

2005), with United States v. McLaughlin, 470 F.3d 698, 700 (7th

Cir. 2006); see generally WRIGHT & MILLER, § 1166, dismissal

of a case pursuant to Rule 4(m) is appropriate when the

plaintiff’s failure to effect proper service is the result of

inadvertence, oversight, or neglect, see Wei v. Hawaii, 763 F.2d

370, 372 (9th Cir. 1985), and dismissal leaves the plaintiff “in

the same position as if the action had never been filed,” H.R.

7152 Amendments to Federal Rules of Civil Procedure, 1982

U.S. Code Cong. & Admin. News 4434, 4442. The district court

found that plaintiffs had not shown that there was “some cause”

for an extension of time on the grounds that the statute of

limitations would bar refiling the complaint, their service

deficiencies existed for only a limited period of time, or they

were unsophisticated pro se litigants as to whom latitude should

be given to correct their mistakes. Mann, 729 F. Supp. 2d at

198–200. Plaintiffs fail to show the district court’s factual

findings with respect to these equitable factors are clearly

erroneous, see Anderson v. Bessemer City, 470 U.S. 564, 573–74

(1985); FED. R. CIV. P. 52(a)(6), or that the district court failed to

consider a relevant factor, see Kickapoo Tribe of Indians v.

Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995), or that the district

court otherwise abused its discretion in refusing to extend the

time to effect service.

Specifically, the district court found that plaintiffs had failed

to provide enough information to gauge the legitimacy of their

concern that they would be unable to refile their complaint if it

were dismissed. Plaintiffs stated in their Response that they had

filed their complaint “inter alia, because of statute of limitations

considerations,” Response ¶ 7, but did not identify any particular

statute of limitations that would bar refiling much less “which –

13

if any – of their numerous claims would be time barred,” Mann,

729 F. Supp. 2d at 199. Plaintiffs provide no further information

on appeal. The district court also found that plaintiffs had not

been diligent in correcting the service deficiencies; although

alerted to their non-compliance with Rule 4(m) and the potential

for dismissal of the case nearly five months earlier, plaintiffs had

taken no action to remedy their non-compliance and had not

responded to the Motion to Dismiss. See id. (citing D.D.C. LcvR

7(b)). (During oral argument in this court plaintiffs stated, for

the first time, that they did not file proofs of service because the

process server they hired using the website “Craigslist” had

disappeared, Oral Arg. Tape 1:55-2:13, but offered no

explanation for failing to proceed with a new process server or

seek a Rule 4(d) waiver.) The district court further found that

the additional latitude it “typically affords pro se litigants” to

correct defects in service of process was unwarranted; the two

pro se plaintiffs had been notified of the requirements of Rule

4(m) and appeared “not [to] be typical, unsophisticated pro se

litigants” but businessmen with extensive litigation experience,

one of whom had formal legal training, and both of whom

worked in tandem with counsel for the corporate plaintiffs.

Mann, 729 F. Supp. 2d at 199–200 (citing Moore v. Agency for

Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993)).

Accordingly, we affirm the order dismissing the case

without prejudice.