Petition for Writ of Certiorari — McMasters v. United States

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0112883 mar oi 2002

No. Ol- OPFICE OF THE CLi:HK

IN THE

Supreme Court of the United States

DEBRA McMASTERS, individually and as next-of-kin

of decedent, AMANDA LEE SCOTT, a minor,

Petitioner,

UNITED STATES OF AMERICA, and the

DEPARTMENT OF THE NAVY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BRIAN R. HOLMAN

FRIEDMAN & HOLMAN

Attorneys for Petitioner

Three First National Plaza

Suite 5050

Chicago, Illinois 60602

(312) 357-1431

172469 g

COUNSEL PRESS 1 | a

(800) 274-3321 + (800) 359-6859 (7 |

QUESTIONS PRESENTED

1. Whether the Van Dusen rule — that the law of the

transferor court applies after a transfer pursuant to 28 U.S.C.

§ 1404(a) — applies to federal law claims in the same manner

as it does with respect to federal diversity claims.

2. Whether, under the law of the case doctrine, the

transferee court may review and reverse a pre-transfer order,

decided by the transferor court in accordance with the law of

the transferor forum, by applying the law of the transferee

forum following a transfer pursuant to 28 U.S.C. § 1404(a).

TABLE OF CONTENTS

Page

Questions Presented ... 2.0... cnc cccucc scans i

Fate Of COmmeet ... oxuk de cvi cages cee eee i

Tabie of Cited Amare oo coc kc ides caccuneees Vv

Table of Appemiieme occ ss ase oes Vii

OGpemtona Below «on occ +54 seen eee l

Statement of Fuarsedictw ok ce cd ins 008s I

Statutory Provision Involved .................. l

Statement of the Case .... ..is4.4s0+4sanaeeees 2

A. General Backgrowmd. . ....45<sscssnc00s 2

B. Underwood’s Criminal Background. .. 2

C. Underwood’s Enlistment In The Marines. .. 3

D. Underwood’s Other Sexual Assaults After

Enlistment In The Marines. ............. 3

E. The August 2, 1991 Murder Of Plaintiff's

Decedent, Amanda Lee Scott. ............ 4

F. Murder ComvictiOm@e. «. .. oc cccaviuean ewe 5

ET TT TT CLE LE LE LE

]

Oe Pd Er CN ORFs te

Contents

McMasters Files Suit In The District Court

For The Central District Of California. ....

The Central District Of California’s Ruling

On Service Of Process. ........00cc000..

The Case Is Transferred To The Northern

epemerect COE TRONS. 4 ww kc ccc ccc ccccncen

The Proceedings Before The District Court

For The Northern District Of Illinois. .....

The Seventh Circuit Affirms. ............

Reasons for Granting the Writ .................

The Supreme Court Should Decide If The

Van Dusen Rule Applies To Transferred

a BE a re

A. The Seventh Circuit’s Opinion Conflicts

With The Intended Purpose Of A Change

Of Venue Under § 1404(a). ..........

B. The Seventh Circuit’s Opinion

Condones And Supports Forum

C. The Seventh Circuit’s Opinion Violates

The Law Of The Case Doctrine. ......

Contents

Page

I]. Certiorari Is Warranted Because The Seventh

Circuit’s Decision Conflicts With Decisions

Of This Court And Of Other Circuits. ..... 18

Ce ee cca eee re ne ee 23

OO nt ae OL Ey eens

TABLE OF CITEDAUTHORITIES

Page

Cases:

Agostini v. Felton, 521 U.S. 203 (1997) ......... 15

Arizona v. California, 460 U.S. 605 (1982) ...... 15

Borzeka v. Heckler, 739 F.2d 444 (9th Cir. 1984) .. 16, 17

Christianson v. Colt Industries Operating Corp.,

Gah ED x 6 5a ee 16,17

Eckstein v. Balcor Film Investors, 8 F.3d 1121

2, TL ® ae: 5 Speen Sameera An 9, 18, 19, 20

Ferens v. John Deere Co., 494 U.S. 516 (1989) .. passim

In Re Korean Air Lines Disaster of September 1,

1983, 829 F.2d 1171 (D.C. Cir. 1987), aff’d on

other grounds sub nom., Chan v. Korean Air Lines,

Lia. 490 U.S. 122 C1989) 6s 6 os 9, 10, 20, 21, 22, 23

International Marketing v. Archer-Daniels-Midland,

192 FOG 724 C7 Cie SGD) ones cok ic eacean 20

Menowitz v. Brown, 991 F.2d 36 (2d Cir. 1993) ...19, 20

Olcott v. Delaware Flood Co., 76 F.3d 1538

CRE, Se fn bce ca eseh as eeeee es tT 9, 19, 20

Van Dusen v. Barrack, 376 U.S. 612 (1964) ..... passim

Wyoming v. Oklahoma, 502 U.S. 437 (1992) ...... 15

Cited Authorities

Page

Statutes:

28 U.S.C. § 1254(1)

28 U.S.C. § 1291 8

28 U.S.C. § 1331 >

28 U.S.C. § 1343 5

28 U.S.C. § 1404(a) ee .... passim

28 U.S.C. § 1407 were oe

28 U.S.C. §$§ 2671, et seq 2,5

Other Authority:

18 Moore's Federal Practice, § 134.22[{3)}{a]

(Mathew Bender 3d Ed.) ................06.. 16

——_

<a anes oe

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Seventh Circuit Dated And

SPOR FEE BG, Oe vc ck 0 ccek casdnncaes

Appendix B — Memorandum Opinion Of The

United States District Court For The Northern

District Of Illinois, Eastern Division Dated

ec 6 Oh as lance Sea cea

Appendix C — Memorandum Opinion And

Judgment Of The United States District Court For

The Northern District Of Illinois, Eastern Division

Dated March 27,2000 ........ccccccccccces

Appendix D — Order Of The United States Court

Of Appeals For The Seventh Circuit Denying

Petition For Rehearing Dated November 2,

eT ee Perr eT ere rere

Debra McMasters, individually and as next-of-kin of

decedent, Amanda Lee Scott, a minor, Petitioner, requests

that this Court issue a writ of certiorari to the United States

Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The District Court’s opinion granting Respondents’

motion for judgment on the pleadings is published at 2000

WL 336549. (Appendix (“Pet. App.”) 15a-26a) The District

Court’s opinion denying the Petitioner’s motion to reconsider

is otherwise not published. (Pet. App. 1la-14a) The Seventh

Circuit Court of Appeals’ opinion affirming the District

Court’s opinion is published at 260 F.3d 814 (7th Cir. 2001).

(Pet. App. la-10a) The Seventh Circuit Court of Appeals’

order denying rehearing and rehearing en banc is not

otherwise published. (Pet. App. 28a-29a)

STATEMENT OF JURISDICTION

The Seventh Circuit Court of Appeals entered its opinion

and order on August 14, 2001, and denied rehearing and

rehearing en banc on November 2, 2001. Justice Stevens

subsequently extended the time to file this petition for a writ

of certiorari to and including March 1, 2002. The Petitioner

invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

28 U.S.C. § 1404 (a):

For the convenience of parties and witnesses, in

the interest of justice, a district court may transfer

any civil action to arly other district or division

where it might have been brought.

STATEMENT OF THE CASE

A. General Background.

The Plaintiff, Debra McMasters (“McMasters”), is the

mother of the decedent Amanda Lee Scott, who was fifteen

years old at the time she was raped and murdered by then-

United States Marine Valentine Underwood (“Underwood”).

On December 19, 1997, a jury in the Victorville Superior

Court of California convicted Underwood on six counts,

including premeditated first-degree murder, for the crimes

he committed against the Plaintiff’s decedent. The United

States of America is named as a Defendant in this matter as

a result of the actions and omissions of the United States

Department of the Navy, and more specifically the United

States Marine Corps. McMasters alleges that she is entitled

to relief under the Federal Torts Claims Act (“FTCA”),

28 U.S.C. §§ 2671, et seq., because the Marine Corps

negligently recruited, enlisted, supervised, and retained

Underwood.

B. Underwood’s Criminal Background.

Prior to his enlistment in the United States Marine

Corps, Underwood attended Lubbock Christian University.

The University maintained a file on Underwood, which cited

numerous instances where Underwood was the subject of

complaints ranging from sexual harassment, sexual assault,

physical assault and several other related/similar offenses,

including suspected narcotics use and trafficking. On July 2,

1987, Underwood was arrested and charged in Montgomery

County, Maryland for the rape and assault of Flora Castells.

The Montgomery County Police Report indicates that

Underwood “did engage in vaginal intercourse with Flora

a eu amon! Pa Sah an nitnton eR a

Gana Rt RANT LLNS) OLA SINT AE He

Castells, without the victim’s consent and did suffocate,

strangle, disfigure and inflict serious physical injury upon

Flora Castells.” On June 17, 1988, Underwood was arrested

by the Binghamton, New York Police Department in

connection with a forcible rape.

C. Underwood’s Enlistment In The Marines.

On June 4, 1990, Underwood enlisted in the United

States Marine Corps. On his enlistment application,

Underwood disclosed that he had been arrested for rape in

1988. As a result, Underwood entered the United States

Marine Corps on a waiver due to a previous arrest for rape.

The United States Marine Corps allowed Underwood to

enter on a waiver despite the restriction that the following

characteristics are not waivable: questionable moral

character, drug dependence, sexual perversion, and history

of anti-social behavior.

D. Underwood’s Other Sexual Assaults After Enlistment

In The Marines.

On June 20, 1991, Tammi Watson accused Underwood

of rape by force. On June 20, 1991, the Naval Investigative

Service on the Marine Corps Base in Twenty-Nine Palms,

California was notified of the alleged rape by force of Tammi

Watson committed by Underwood. On July 1, 1991, the

charge of forcible rape was filed against Underwood by the

Morongo Basin District Attorneys’ Office. On August 2,

1991, prior to the murder of Plaintiff's decedent, Underwood

pressed a knife up against the throat of Deborah Ann

Ashworth, when she refused to kiss Underwood.

E. The August 2, 1991 Murder Of Plaintiff’s Decedent,

Amanda Lee Scott.

On August 2, 1991, Underwood was dismissed for the

day because he had a basketball game at the Norton Air Force

Base in San Bernardino, California. On August 2, 1991,

Underwood was scheduled to meet with Lance Corporal Perry

Bernard Osbey, a United States Marine, and Staff Sergeant

Larry George Isom, the coach of the Twenty-Nine Palms

Marine basketball team, at the lower gym on the Twenty-

Nine Palms Marine Base at 9:20 a.m. in order to drive

together to the basketball game in San Bernardino. Sergeant

Isom instructed all of the basketball players to meet at the

west gym on Twenty-Nine Palms Marine Base at 9:30 a.m.

on August 2, 1991. Lance Corporal Osbey believed that

Underwood was not present at the lower west gym at 9:30

a.m. on August 2, 1991 because he was with two girls at

their apartment. (This later proved to be the murder scene

and the two girls were the Plaintiff’s decedent and Rosalie

Ortega.) On August 2, 1991 at approximately 9:45 a.m., when

Underwood failed to appear at the lower gym on Twenty-

Nine Palms Marine Base, Lance Corporal Osbey and Sergeant

Isom initially intended to retrieve Underwood from the girls’

apartment, however, when Sergeant Isom became angry at

Underwood for being late they elected to depart for the

basketball game without Underwood. Underwood later

showed up at the tournament, and soon it was discovered

that at the time he was to have met Sergeant Isom and Lance

Corporal Osbey and the other members of the team,

Underwood was murdering Ortega and Scott at the apartment

where he told Lance Corporal Osbey he was going.

Ree Cn ea oR Rae eee TE |

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F. Murder Convictions.

Underwood’s semen was found in both murder victims.

Post mortem examinations of the two murder victims revealed

that Underwood had stabbed each thirty-three times. Underwood

wore number thirty-three on his basketball jersey. On March 6,

1998, Underwood was sentenced to two consecutive life terms

without the possibility of parole, with an additional sixteen-

month enhancement for the use of a deadly weapon, for the

first-degree murders of Plaintiff’s decedent, Amanda Lee Scott

and Rosalie Ortega.

G McMasters Files Suit In The District Court For The

Central District Of California.

On July 30, 1993, the Plaintiff served upon the Judge

Advocate General of the Navy her notice of claim in connection

with the brutal rape and murder of her fifteen year-old daughter

Amanda Lee Scott by United States Marine Valentine

Underwood. The Judge Advocate General’s Office denied the

Plaintiff’s claim. On February 28, 1995, the Plaintiff timely filed

her original complaint with the United States District Court for

the Central District of California, invoking the Court’s

jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and the FTCA,

28 U.S.C. §§ 2671, et seg. On July 30, 1995, the Plaintiff served

the United States Marine Corps by hand delivering a copy of

the summons and complaint to the Marine Corps Air and Ground

Combat Center in Twenty-Nine Palms, California. In June 1996,

the Plaintiff sent a copy of the summons and complaint via

certified mail to the Attorney General of the United States. In

addition, in June 1996 the Plaintiff sent by certified mail copies

of the summons and complaint to the Commandant of the Marine

Corps and the Department of the Navy. At the time, McMasters

did not serve the United States Attorney for the district in which

the action was brought.

H. The Central District Of California’s Ruling On

Service Of Process.

On August 18, 1998, after briefing by the parties, the

Honorable Judge Timlin for the Central District of California

made the following ruling on the service of process:

The Court will, however, deem the U.S. Attorney’s

Office as served because McMasters, representing

herself pro se, has “substantially complied” with

Fed.R.Civ.Proc. Rule 4 and it is clear that the

U.S. Attorney’s Office by its response to the instant

motion has actual notice of the complaint against

its clients, the United States of America and the

Department of the Navy. McMasters contends that

she has a justifiable excuse for the failure to serve

properly in that she received erroneous information

regarding the service of process. Further, the

defendants have not shown any prejudice from the

defect in the service of the summons and complaint,

whereas plaintiff would be severely prejudiced by

the loss of her claim if the court were to construe

Rule 4 in a ngid manner in this case. See Borzeka v.

Heckler, 739 F.2d 444, 447 (9th Cir. 1984) (“the

provisions of Rule 4 should be given a liberal and

flexible construction.”).

I. The Case Is Transferred To The Northern District

Of Illinois.

On August 24, 1998, the Plaintiff, appearing in propria

persona, and pursuant to 28 U.S.C. § 1404(a), moved the

Court for an order transferring her case from the United States

District Court for the Central District of California to the

A PGBS ht AS A ALAA D CELIA A LI

United States District Court for the Northern District of

Illinois. On September 11, 1998, the Defendant filed its

Notice of Nonopposition to Plaintiff's Motion for Change

of Venue. On October 7, 1998, the Central District of

California granted Plaintiff’s Motion to Transfer Venue

pursuant to 28 U.S.C. § 1404(a).

J. The Proceedings Before The District Court For The

Northern District Of Illinois.

On October 29, 1998, the Plaintiff filed her First

Amended Complaint in the Northern District of Illinois.

On November 30, 1998, the Defendants filed their Answer

to the Plaintiff’s First Amended Complaint. On March 10,

1999, the Government filed its Motion for Judgment on the

Pleadings or Alternatively for Summary Judgment. On March

10, 1999, the Plaintiff filed her Motion for Summary

Judgment.

On March 28, 2000, the District Court granted the

Government’s Motion for Judgment on the Pleadings, finding

that service of process was insufficient because McMasters

failed to serve the United States Attorney in the Central

District of California. Pet. App. 20a. In making its ruling,

the District Court recognized that it is generally bound by

the law of the case doctrine to not upset prior decisions made

by acoordinate court. /d. at 21a. However, the District Court

concluded since “the initial decision was clearly erroneous

and would work a manifest injustice” the Court would depart

from that decision. /d. at 22a.

On April 6, 2000, the Plaintiff filed her Motion for

Reconsideration asking the District Court to alter or amend

the judgment on the pleadings entered in favor of the

Government and against the Plaintiff. The Plaintiff argued

that because the case was transferred for the convenience of

the litigants pursuant to 28 U.S.C. § 1404(a), the law of the

transferor jurisdiction continued to apply. Accordingly, the

District Court review of the pre-transfer ruling on service

was required to apply Ninth Circuit precedent — the law of

the transferor jurisdiction — not Seventh Circuit precedent.

Additionally, the Plaintiff argued that the law of the case

doctrine precluded the District Court from reviewing the pre-

transfer order on service entered by the District Court for

the Central District of California because the ruling on service

was not clearly erroneous, it was properly decided based upon

Ninth Circuit caselaw and precedent.

On June 6, 2000, the District Court denied the Plaintiff’s

Motion for Reconsideration. The District Court concluded it

was not erroneous to rely on Seventh Circuit caselaw and

precedent in evaluating the District Court for the Central

District of California’s pre-transfer order on service.

Pet. App. 13a.

K. The Seventh Circuit Affirms.

On August 2, 2000, the Plaintiff filed her Notice of

Appeal, appealing the District Court’s denial of Plaintiff’s

Motion to Reconsider the District Court’s prior decision to

grant the Government’s Motion for Judgment on the

Pleadings. The Seventh Circuit had jurisdiction over the

appeal pursuant to 28 U.S.C. § 1291. On August 14, 2001,

the Court of Appeals for the Seventh Circuit affirmed. It

found that the “District Court properly applied Seventh

Circuit precedent in evaluating whether McMasters’ case

should be dismissed for failure to serve the United States

Attorney.” Pet. App. 10a.

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On September 28, 2001, the Plaintiff filed her petition

for rehearing and petition for rehearing en banc with the

Seventh Circuit Court of Appeals. On November 2, 2001,

the Court of Appeals for the Seventh Circuit denied

the Plaintiff’s request for rehearing and rehearing en banc.

Pet. App. 29a.

REASONS FOR GRANTING THE WRIT

The petition should be granted for two reasons. First,

the Supreme Court has not, but should, decide whether the

Van Dusen rule — that the law of the transferor court

continues to apply after a transfer within the federal system

— applies to federal law claims in the same manner as it

currently applies to diversity claims. See Van Dusen v.

Barrack, 376 U.S. 612 (1964); Ferens v. John Deere Co.,

494 U.S. 516 (1989).

Second, the Seventh Circuit’s decision — that the law

of the transferee court applies when deciding federal

questions — is the Circuit’s first ruling with broad application

to all federal question transfers. See Eckstein v. Balcor Film

Investors, 8 F.3d 1121, 1126 (7th Cir. 1993) (The Seventh

Circuit concluded that the law of the transferor court should

apply after a transfer, but limited its ruling to situations in

which the law of the United States is intended to be

geographically non-uniform.) Where the Eckstein decision

was in accord with the Tenth Circuit’s decision in Olcott v.

Delaware Flood Co., 76 F.3d 1538 (10th Cir. 1996), the

Seventh Circuit’s decision in the case at bar now creates a

conflict between the Circuits. Additionally, the Seventh

Circuit’s decision conflicts with the D.C. Circuit’s ruling in

In Re Korean Air Lines Disaster of September 1, 1983, 829

F.2d 1171 (D.C. Cir. 1987) (Ruth B. Ginsburg, J.), aff'd on

other grounds sub nom., Chan v. Korean Air Lines, Ltd., 490

U.S. 122 (1989). More importantly, the Seventh Circuit’s

decision conflicts with the Supreme Court’s reasoning in Van

Dusen and Ferens.

Without a single rule from the Supreme Court on this

issue, the Circuits will continue to create limited exceptions

resulting in inconsistent decisions not appropriate for

universal application. Accordingly, the Supreme Court should

resolve the conflicts among the Circuits and settle this

important question of federal law.

I. The Supreme Court Should Decide If The Van Dusen

Rule Applies To Transferred Federal Law Claims.

In Van Dusen, this Court established the following rule:

We conclude, therefore, that in cases such as the

present, where the defendants seek transfer, the

transferee district court must be obligated to apply

the state law that would have been applied if there

had been no change of venue. A change of venue

under § 1404(a) generally should be, with respect

to state law, but a change of courtrooms. 376 U.S.

at 639.

The Supreme Court addressed the Van Dusen rule in

Ferens v. John Deere Co., 494 U.S. 516, when the Court was

asked to decide whether the Van Dusen rule applied where

the plaintiffs sought the § 1404(a) transfer rather than the

defendants. The Supreme Court, relying on its decision in

Van Dusen, expanded the Van Dusen rule to apply regardless

of which party sought the transfer of venue. Ferens, 494 U.S.

at 523. However, despite the fact that in Ferens this Court

stated, “[floresight and judicial economy now seem to favor

lis ‘hina aoa Se

RS DAM ha il a haw I AE NTE PLY

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Bin Sel ake A TL tA ale ip ANCE SM

the single rule that the law does not change following a

transfer of venue under § 1404(a),” the Court again limited

it ruling to diversity cases. Jd. at 530. To date, the Supreme

Court has not addressed the question of weather the Van

Dusen rule applies to transferred federal law claims.

Writing for the District of Columbia Circuit, Justice Ruth

B. Ginsburg acknowledged the importance of this issue:

The question before us is whether the Van Dusen

rule — that the law applicable in the transferor

forum attends the transfer — should apply to

transferred federal claims. It is a question meriting

attention from Higher Authority. Congress, it

appears, has not focused on the issue, nor has the

Supreme Court addressed it. Jn Re Korean Air

Lines Disaster, 829 F.2d 1171, 1174 (D.C. Cir.

1987) (Ruth B. Ginsburg, J.), aff’d on other

grounds sub nom., Chan v. Korean Air Lines, Ltd.,

490 U.S. 122 (1989).

Once again, the Supreme Court is presented with the

opportunity to address the issue that Justice Ginsburg

considered a question “meriting attention from Higher

Authority.”

A. The Seventh Circuit’s Opinion Conflicts With

The Intended Purpose Of A Change Of Venue

Under § 1404(a).

The intended purpose of a change of venue under

§ 1404(a) is to permit a transfer within the federal system

for the convenience of the parties and witnesses or in the

interest of justice. 28 U.S.C. § 1404(a) states:

For the convenience of parties and witnesses, in

the interest of justice, a district court may transfer

any civil action to any other district or division

where it might have been brought.

Clearly, the District Court for the Central District of

California transferred this matter to the District Court for

the Northerti District of Illinois to effectuate the very purpose

of § 1404(a) — for the convenience of the then pro se Plaintiff

who was attempting to litigate a case pending in California

from her residence in Illinois.

There is no ambiguity that as originally filed, the law of

the Ninth Circuit governed this case. However, under the

Seventh Circuit’s decision, once transferred the case was

governed by the law of the Seventh Circuit. This change in

governing law resulted in the Plaintiff’s case being dismissed

with prejudice. The Seventh Circuit’s decision simply cannot

be reconciled with the Supreme Court’s decisions in

Van Dusen and Ferens, and the intended purpose of § 1404(a).

In support of the holdings in Van Dusen and Ferens, the

Supreme Court stated:

This legislative background supports the view that

§ 1404(a) was not designed to narrow the

plaintiff's venue privilege or to defeat the state-

law advantages that might accrue from the

exercise of this venue privilege but rather the

provision was simply to counteract the

inconvenience that flowed from the venue statutes

by permitting transfer to a convenient federal

court. ... The legislative history of § 1404(a)

certainly does not justify the rather startling

conclusion that one might get a change of law as

a bonus for a change of venue. Indeed, an

interpretation accepting such a rule would go far

to frustrate the remedial purposes of § 1404(a).

Van Dusen, 376 U.S. at 639; Ferens, 494 U.S. at 522.

The Supreme Court further reasoned that “[t]he decision to

transfer venue under § 1404(a) should turn on considerations

of convenience and the interest of justice rather than on the

possible prejudice resulting from a change of law.” Ferens,

494 US. at 523.

Not only does the Seventh Circuit’s decision grant the

Defendant a change of law as a bonus for the change of venue,

the Seventh Circuit also granted the Defendant a review of

the pre-transfer order on service under post-transfer law.

The principle that a transferee court may review a pre-transfer

order under post-transfer law defies logic. If the Central

District of California’s decision on service was proper prior

to the § 1404(a) transfer, what about the transfer made it

erroneous? More specifically to the case at bar, how can a

case be dismissed with prejudice as a result of a § 1404(a)

transfer? Not only is this conclusion insupportable, it runs

completely afoul of the very purpose of a § 1404(a) transfer

— to support the interests of justice. No Plaintiff would

transfer her case for convenience purposes only to have it

dismissed with prejudice. This Court acknowledged that the

purpose of § 1404(a) is to avoid the problem that the Seventh

Circuit’s decision created:

The text of § 1404(a) may not say anything about

choice of law, but we think it is not the purpose

of the section to protect a party’s ability to use

inconvenience as a shield to discourage or hinder

litigation otherwise proper. The section exists to

eliminate inconvenience without altering

permissible choices under the venue statute.

Ferens, 494 U.S. at 525.

Accordingly, the Seventh Circuit’s Opinion conflicts with

the intended purpose of a change of venue under § 1404(a).

B. The Seventh Circuit’s Opinion Condones And

Supports Forum Shopping.

In Van Dusen and Ferens, this Court raised concerns that

in permitting a change of law as a result of a change of venue

would transform § 1404(a) into a forum-shopping instrument.

In Van Dusen the Supreme Court stated:

If a change of law were in the offering, the parties

might well regard the section primarily as a forum-

shopping instrument. And, more importantly,

courts would at least be reluctant to grant transfers

despite considerations of convenience, if to do so

might conceivably prejudice the claim of a

plaintiff who had initially selected a permissible

forum. 376 U.S. at 636.

In Ferens, the Supreme Court emphasized that the

Van Dusen policy against forum shopping required that the

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Court “not create an opportunity for obtaining a more favorable

law by selecting a forum through a transfer of venue.” Ferens,

494 US. at 527. The Seventh Circuit’s opinion violates the

Van Dusen pojicy against forum shopping.

The Seventh Circuit’s decision stands for the proposition

that a pre-transfer order can be reviewed after a § 1404(a)

transfer under the transferee court’s more favorable law.

Accordingly, applying the Seventh Circuit’s decision a party

can obtain a unfavorable ruling, move pursuant to § 1404(a)

for a transfer to a forum where a more favorable precedent

governs, have the transferee court review the pre-transfer

order under the more favorable law, and the end result is that

the pre-transfer order is reversed by the transferee court. In

the case at bar, the District Court for the Northern District of

Illinois dismissed the Plaintiff’s case with prejudice when it

reversed the pre-transfer order on service made by the District

Court for the Central District of California. The Seventh

Circuit’s decision therefore conflicts with the Supreme

Court’s decisions in Van Dusen and Ferens, which prohibit

using § 1404(a) as a forum-shopping instrument.

C. The Seventh Circuit’s Opinion Violates The Law

Of The Case Doctrine.

The United States Supreme Court stated “[a]s most

commonly defined the [law of the case] doctrine posits that

when a court decides upon arule of law, that decision should

continue to govern the same issue in subsequent stages in

the same case.” Arizona v. California, 460 U.S. 605, 618

(1982). The Supreme Court also stated “[a] fundamental

precept of common-law adjudication is that an issue once

determined by a competent court is conclusive.” /d. at 619.

See also, Agostini v. Felton, 521 U.S. 203, 236 (1997);

Wyoming v. Oklahoma, 502 U.S. 437, 446 (1992).

The law of the case doctrine applies not only to the

previous decisions of the same court, but also to prior

decisions of coordinate courts. See Christianson v. Colt

Industries Operating Corp., 486 U.S. 800, 815-16 (1987)

(‘Federal courts routinely apply law-of-the-case principles

to transfer decisions of coordinate courts.”) Moore s Federal

Practice states this principle succinctly: “When a case is

transferred from one district court to another any decisions

rendered prior to the transfer are part of the record and

become the law of the case.” 18 Moores Federal Practice,

§ 134.22[3][a] (Mathew Bender 3d Ed.). Upon receipt of the

case at bar from the Central District of California, the District

Court for the Northern District of Illinois reconsidered the

pre-transfer order on service. The District Court for the

Northern District of Illinois took this inappropriate action

despite its acknowledgement of the importance of the law of

the case doctrine “the Court is generally bound by the law of

the case doctrine to not upset prior rulings in a case...”

and the harsh result it would render upon the Plaintiff.

Pet. App. 21a and 24a.

The District Court for the Northern District of Illinois

wrote, and the Seventh Circuit agreed, that its departure from

the law of the case doctrine was “[b]ecause the Court is

convinced that the decision of the Central District of

California regarding service of process was clearly erroneous

and would work a manifest injustice. ...” Pet. App. 22a.

The pre-transfer order on service was neither clearly

erroneous nor manifestly unjust, the order was proper when

made, and is still valid under Ninth Circuit precedent.

See Borzeka v. Heckler, 739 F.2d 444 (9th Cir. 1984). Indeed,

there were no extraordinary circumstances present which

would have warranted such action. The District Court and

the Seventh Circuit thus deviated from Supreme Court

precedent:

[A]s a rule courts should be loathe to do so in the

absence of extraordinary circumstances such as

where the initial decision was clearly erroneous

and would work a manifest injustice.

Christianson v. Colt, 486 U.S. at 817.

The Seventh Circuit concluded that the law of the case

doctrine did not apply because the Central District of

California’s decision on service was clearly erroneous.

The Seventh Circuit also concluded that Ninth Circuit

precedent did not apply. Accordingly, the Seventh Circuit

concluded that the Central District of California’s pre-transfer

order was clearly erroneous based upon Seventh Circuit

precedent. This result is completely illogical.

At what point did the Central District of California’s pre-

transfer order become clearly erroneous? Obviously, it was

not prior to the § 1404(a) transfer, because, among other

things, the Central District of California relied upon and

based its ruling squarely on Ninth Circuit precedent.

See Borzeka, 739 F.2d at 447. According to the Seventh

Circuit, only after the § 1404(a) transfer, when the District

Court for the Northern District of Illinois reviewed the pre-

transfer order under Seventh Circuit precedent, did the

decision allegedly become clearly erroneous. In essence, the

panel required the Central District of California to have

predicted the transfer of the case to the Northern District of

Illinois, and to have reviewed Seventh Circuit precedent in

anticipation thereof.

In order for the exception to the law of the case doctrine

to apply, the decision made by the Central District of

California had to be clearly erroneous under Ninth Circuit

precedent. The Seventh Circuit’s decision to the contrary is

completely inaccurate and would work a manifest injustice.

The Seventh Circuit’s decision stands for the proposition that

a transfer under § 1404(a) allows the transferee court to

review all of the orders entered by the transferor court under

a new body of law. Obviously, this decision is contrary to

the very purpose of 28 U.S.C. § 1404(a), and the purpose of

the law of the case doctrine. The Seventh Circuit’s decision

does not support the interests of justice, misapprehends the

purpose of a § 1404(a) transfer, and violates the law of the

case doctrine.

Il. Certiorari Is Warranted Because The Seventh

Circuit’s Decision Conflicts With Decisions Of This

Court And Of Other Circuits.

Although this Court has not decided if the Van Dusen

rule applies to transferred federal claims, the Seventh

Circuit’s decision conflicts with the central conclusion of

Van Dusen and Ferens: that a transfer under § 1404(a)

accomplishes “but a change of courtrooms.” Van Dusen, 376

U.S. at 637; Ferens, 494 U.S. at 522. Indeed, the Seventh

Circuit in Eckstein v. Balcor Film Investors, acknowledged

this very point:

When the law of the United States is geographically

non-uniform, a transferee court should use the rule

of the transferor forum in order to implement the

central conclusion of Van Dusen and Ferens: that a

transfer under § 1404(a) accomplishes “but a change

of courtrooms.” Van Dusen, 376 U.S. at 637. 8 F.3d

1121, 1127 (7th Cir, 1993).

However, in accordance with the Seventh Circuit’s decision,

Eckstein stands for the proposition that “[o]n a limited

number of federal issues, a court may be required to apply

the law of a different circuit to cases which have been

transferred under § 1404(a)....” Pet. App. 9a. More

specifically, the Seventh Circuit concluded that Eckstein

applies only when the law of the United States is specifically

intended to be geographically non-uniform, and only then

should the transferee court use the law of the transferor’s

forum. Pet. App. 10a; see also Eckstein, 8 F.3d at 1127.

A ruling on this issue by the Supreme Court will stop the

Circuits from continuing to draft specific exceptions

regarding the application of the Van Dusen rule to transferred

federal claims.

The failure of having a national rule regarding the

application of the Van Dusen rule to transferred federal claims

has created conflict among the Circuits. Indeed, the Tenth

Circuit in Olcott v. Delaware Flood Co., 76 F.3d 1538 (10th

Cir. 1996) interpreted Eckstein to stand for the proposition

that the Van Dusen rule applied to all transferred federal

question cases. The question presented to the Tenth Circuit

in Olcott was the same question addressed and answered by

the Seventh Circuit in Eckstein, and the Second Circuit in

Menowitz v. Brown, 991 F.2d 36 (2d Cir. 1993): “should the

rule the transferor forum law applies be extended to the

federal question case?” Olcott, 76 F.3d at 1545. Similar to

the Seventh Circuit in Eckstein, the Tenth Circuit rejected

the Second Circuit’s ruling in Menowitz, and agreed with

the Seventh Circuit that “it makes no sense for the applicable

law to change simply as a result of a motion to transfer.”

Id. at 1546. See also, International Marketing v. Archer-

Daniels-Midland, 192 F.3d 724, 729 (7th Cir. 1999):

The situation is slightly more complicated when

a case has been transferred from one federal

district to another under § 1404(a). In that

circumstance we have held that the transfer leaves

the law, including choice-of-law rules, unaffected.

Citing, Eckstein.

Clearly, the Seventh Circuit’s decision in the case at bar

would suggest that the Tenth Circuit’s interpretation of

Eckstein was too broad. However, the Seventh Circuit’s

decision in Eckstein and the Tenth Circuit’s decision in Olcott

were in accord prior to the Seventh Circuit’s decision in the

case at bar. See Eckstein, 8 F.3d at 1127; Olcott, 76 F.3d at

1546. Additionally, prior to the Seventh Circuit’s decision,

there was a circuit conflict between the Seventh Circuit’s

decision in Eckstein and the Second Circuit’s decision in

Menowitz. See Eckstein, 8 F.3d at 1127; and Menowitz, 991

F.3d at 41. However, now the Seventh Circuit’s decision in

the case at bar is in accord with the Second Circuit’s decision

in Menowitz, but is in conflict with the Tenth Circuit’s

decision in Olcott. This conflict between the Circuits will be

eliminated once the Supreme Court rules on the application

of the Van Dusen rule to transferred federal law claims.

The Seventh Circuit’s decision also incorrectly relied on

the D.C. Circuit’s decision in Jn Re Korean Airlines Disaster

of September 1, 1983, 829 F.2d 1171 (D.C. Cir. 1987). The

Court in Korean Airlines specifically stated “we deal here

not with an all-purpose transfer under 28 U.S.C § 1404(a),

but with a transfer under 28 U.S.C. § 1407 for coordinated

or consolidated pretrial proceedings.” /d. at 1176. As noted,

§ 1404(a) transfer are made for the convenience of the

litigants, whereas, § 1407 consolidations are made for the

efficient judicial management of complex, often multi-district

class actions or mass disaster litigation. Indeed, following a

§ 1407 consolidation, the interests of judicial efficiency

may support the application of the law of the transferee

jurisdiction, as the Court found in Korean Airlines. 829 F.2d

at 1176. Clearly, in instances were cases are transferred from

multiple districts for consolidation of pretrial proceedings,

the transferee court simply cannot be burdened with the

onerous task of applying the law of each of the transferor

courts — which may have multiple interpretations of the law.

This would violate the purpose of a § 1407 transfer. However,

there are no such efficiency interests to be served following

a § 1404(a) transfer, since such transfers are done solely for

the convenience of the litigants, and there is no provision in

§ 1404(a) to transfer the case back to the transferor court

for trial as is provided in the provisions of § 1407.

The distinctions between a § 1404(a) transfer and a § 1407

transfer are significant, but ignored by the Seventh Circuit’s

decision.

The Seventh Circuit’s decision is also in conflict with

the D.C. Circuit’s decision in connection with the issue of

the law of the case doctrine. Justice Ginsburg, writing for

the D.C. Circuit in Korean Airlines, concluded that the law

of the case doctrine would require the transferor courts to

accept any rulings made by the transferee court, which were

decided under the transferee court’s law, stating:

Should the several cases consolidated for pretrial

preparation in the instant proceeding eventually

return to the transferor courts outside this circuit,

would our district court’s Warsaw Convention/

Montreal Agreement ruling, which we have affirmed,

have binding force? We believe it should as “law of

the case,” for if it did not, transfers under 28 U.S.C.

§ 1407 could be counterproductive, i.e., capable of

generating rather than reducing the duplication and

protraction Congress sought to check. 829 F.2d at

1176.

In summary, the D.C. Circuit concluded in Korean Airlines

that after a § 1407 transfer for consolidation of pretrial

proceedings the law of the transferee court applies to all

federal law questions, and thus the Van Dusen rule does not

apply to transferred federal claims. Should the cases then go

back to the transferor courts for trial — as provided for in

§ 1407 — any decisions made by the transferee court would

be binding under the law of the case doctrine. However, any

decisions thereafter are made in accordance with the law

of the transferor’s court. Korean Airlines, 829 F.2d at 1176.

The Seventh Circuit’s decision disregarded the law of the

case doctrine and reviewed a pre-transfer order, made by the

District Court for the Central District of California under

Ninth Circuit precedent, under Seventh Circuit’s law — the

transferee court’s law. The Seventh Circuit’s decision

conflicts with the D.C. Circuit’s decision.

This Court could conclude that in accordance with the

D.C. Circuit’s ruling in Korean Airlines, the Seventh Circuit

was correct in concluding that the Van Dusen rule does not

apply to transferred federal claims — after a transfer the

transferee court should apply its own precedent to federal

law questions. However, the Seventh Circuit erred in

reviewing the pre-transfer order on service, because the pre-

transfer order on service, which was made under valid Ninth

Circuit precedent, was the law of the case. Such a ruling

Fa 5) 8 SARI POLY EE OT IYG

would be in accord with the D.C. Circuit’s ruling in Korean

Airlines. However, at present there is a circuit conflict

between the Seventh Circuit and the D.C. Circuit.

Accordingly, certiorari is warranted because the Seventh

Circuit’s decision conflicts with decisions of other Circuits

as well as decisions of the Supreme Court.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

BriAN R. HOLMAN

FRIEDMAN & HOLMAN

Attorneys for Petitioner

Three First National Plaza

Suite 5050

Chicago, Illinois 60602

(312) 357-1431

APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DATED AND DECIDED AUGUST 14, 2001

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 00-2991

DEBRA McMASTERS,

Plaintiff-Appellant,

UNITED STATES OF AMERICA and

THE DEPARTMENT OF THE NAVY,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 6413 — Charles P. Kocoras, Judge.

ARGUED FEBRUARY 26, 2001 —

DECIDED AUGUST 14, 2001

Before BAUER, POSNER, and KANNE, Circuit Judges.

Appendix A

KANNE, Circuit Judge. On August 2, 1991, fifteen year-

old Amanda Lee Scott was raped and murdered by then-United

States Marine Valentine Underwood.' On February 28, 1995,

Scott’s mother, plaintiff-appellant Debra McMasters, filed suit

against the United States and the Department of the Navy in

the United States District Court for the Central District of

California seeking damages under state law as well as under

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b).?

McMasters, proceeding pro se, delivered a copy of the sum-

mons and complaint to the U.S. Marine Corps’ Air and Ground

Center in Twenty-Nine Palms, California, on July 30, 1995.

Approximately a year later, McMasters sent a copy of the

summons and complaint via certified mail to the Attorney

General of the United States. At that time, McMasters also sent

copies of the summons and complaint to the Commandant of

the Marine Corps and the Department of the Navy.

Three years later, McMasters filed a motion for default

judgment based on the fact that the government had not

responded to her complaint. The government opposed

McMasters’ motion, asserting that it did not have notice of

the action until McMasters filed the motion for default

1. Valentine was convicted of Amanda Lee Scott’s murder as

well as the murder of twenty year-old Rosalie Ortega in California

State Court on December 19, 1997. He is currently serving two

consecutive life sentences in state prison.

2. McMasters’ suit was based on the fact that the Marines issued

a waiver allowing Underwood to enlist in the Corps despite two

previous arrests for rape and also upon the fact that Underwood was

under investigation for a third rape at the time that Amanda Lee Scott

was murdered.

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Appendix A

judgment because McMasters failed to serve the United States

Attorney for the Central District of California. The district court

denied McMasters’ motion for default judgment but

determined that service was proper:

The Court will, however, deem the U.S. Attorney’s

Office as served because McMasters, representing

herself pro se, has “substantially complied” with

Fed. R. Civ. Proc. Rule 4 and it is clear that the

U.S. Attorney’s Office by its response to the

instant motion has actual notice of the complaint

against its clients, the United States of America

and the Department of the Navy. McMasters

contends that she has a justifiable excuse for the

failure to serve properly in that she received

erroneous information regarding the service of

process. Further, the defendants have not shown

any prejudice from the defect in the service of the

summons and complaint, whereas plaintiff would

be severely prejudiced by the loss of her claim if

the court were to construe Rule 4 ina rigid manner

in this case.

McMasters v. United States, No. 00-2991 (C.D. Cal. Aug. 8,

1998) (order denying plaintiff’s motion for default judgment

and ordering defendants to file a responsive pleading).

On August 24, 1998, McMasters moved to transfer the

case from the Central District of California to the Northern

District of Illinois pursuant to 28 U.S.C. § 1404(a). The

government did not oppose the transfer, and the district court

granted the motion. McMasters, now represented by counsel,

filed an amended complaint in the Northern District of Illinois

Appendix A

alleging that, as her daughter’s next-of-kin, she was entitled

to relief under the FTCA because the Marine Corps negligently

recruited, enlisted, supervised, and retained Underwood. In its

answer, the government presented several defenses including

insufficient service of process. The government filed a motion

for judgment on the pleadings, or alternatively for summary

judgment, arguing that the case should be dismissed for

insufficient service of process, or alternatively, because

plaintiff’s claims were barred by the FTCA’s assault and

battery exception, 28 U.S.C. § 2680(h), and the discretionary

function exception, 28 U.S.C. § 2680(a). McMasters filed a

cross-motion for summary judgment.

On March 28, 2000, the district court granted the

government’s motion for judgment on the pleadings, finding

that service of process was insufficient because McMasters

failed to serve the United States Attorney.’ In making this

determination, the court recognized that a court is generally

bound by decisions made by a coordinate court but found

that the determination of the district court for the Central

District of California regarding service of process was

“clearly erroneous and would work a manifest injustice” if

allowed to stand. McMasters v. United States, No. 98 C 6413,

2000 WL 336549, at *4 (N.D. Ill. March 28, 2000).

McMasters filed a motion for reconsideration and the district

court denied the motion. She now appeals. We review the

district court’s order granting the motion for judgment on

the pleadings de novo, drawing all inferences in the light

most favorable to McMasters. See Velasco v. Ill. Dept. of

Human Servs., 246 F.3d 1010, 1016 (7th Cir. 2000).

3. McMasters is precluded from refiling her claim because the

statute of limitations has run.

Appendix A

The plain language of Rule 4(i) of the Federal Rules of

Civil Procedure requires that, in order to properly serve the

United States or its agencies, corporations, or officers, a

plaintiff must deliver a copy of the summons and the

complaint to the U.S. Attorney’s Office for the district in

which the action is brought, as well as to the Attorney General

of the United States.* While a court must give a plaintiff

reasonable time to cure a defect in service under Rule 4(i)(3)°

4. Rule 4(i)(1) provides that service on the United States may

be effected:

(A) by delivering a copy of the summons and of

the complaint to the United States attorney for the district

in which the action is brought or to an assistant United

States attorney or clerical employee designated by the

United States attorney in a writing filed with the clerk

of the court or by sending a copy of the summons and of

the complaint by registered or certified mail addressed

to the civil process clerk at the office of the United States

Attorney and

(B) by also sending a copy of the summons and of

the complaint by registered or certified mail to the

Attorney General of the United States... .

FED. R. CIV. P. 4(1)(1). -

5. Rule 4(1)(3) provides in relevant part:

The court shall allow a reasonable time to serve process

under Rule 4(1) for the purpose of curing the failure to serve:

(A) all. persons required to be served in an action

governed by Rule 4(i)(2)(A), if the plaintiff has served

either the United States attorney or the Attorney General

of the United States... .

FED. R. CIV. P. 4(i)(3).

Appendix A

or grant an appropriate extension of time for service under

Rule 4(m),° nothing in the Federal Rules of Civil Procedure

allows a judge to excuse service altogether. Actual notice to

the defendant is insufficient; the plaintiff must comply with

the directives of Rule 4. See Mid-Continent Wood Prod., Inc.

v. Harris, 936 F.2d 297, 301-02 (7th Cir. 1991) (stating that

neither actual notice nor substantial compliance is sufficient

to satisfy the requirements of Rule 4); see also Gabriel v.

United States, 30 F.3d 75, 77 (7th Cir. 1994) (upholding

dismissal where plaintiff served U.S. Attorney by mail

because, at that time, Rule 4(d)(4) required personal service

on the U.S. Attorney).

Although McMasters mailed a copy of the summons and

complaint to the Attorney General in accordance with Rule

4(1)(1)(B), at no point did she ever serve the U.S. Attorney.

This failure renders improper the service of the United States. -

See Tuke v. United States, 76 F.3d 155, 157 (7th Cir. 1996)

(stating that a plaintiff must comply with both prongs of

4(i)(1) “for good reason: that’s what the rule says”). The fact

that McMasters was proceeding pro se does not excuse her

failure to comply with procedural rules. See, e.g., McNeil v.

United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124

L. Ed. 2d 21 (1993) (“[W]e have never suggested that

procedural rules in ordinary civil litigation should be

interpreted so as to excuse mistakes by those who proceed

without counsel.”) (footnote omitted). Thus, we are in

agreement with the district court’s conclusion that, “the

6. Under Rule 4(m), a plaintiff who has failed to effect service

within the required 120 day period will be granted an extension “for

service for an appropriate period” upon a showing of good cause.

FEL. R. CIV. P. 4(m).

Appendix A

Central District of California may have been within its

discretion in permitting McMasters’ service on the Attorney

General nearly 15 months after the filing of her complaint,

but clearly erred in excusing McMasters from ever having

served or having to serve the U.S. Attorney.” McMasters v.

United States, 2000 WL 336549, at *4. Although this may

seem overly formalistic, “[t]he Supreme Court insists that

federal judges carry out the rules of procedure, whether or not

those rules strike the judges as optimal.” Juke, 76 F.3d at 157.

McMasters argues that even if service was improper, the

district court erred in revisiting the decision of the Central

District of California. She contends that the law of the case

doctrine precluded the district judge in the Northern District

of Illinois from reviewing the pre-transfer decision of the

district judge in the Central District of California that service

was proper. McMasters is correct that the law of the case

doctrine, which provides that courts should refrain from

reopening issues decided in earlier stages of the same

litigation, see Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800, 815-16, 108 S. Ct. 2166, 100 L. Ed. 2d 811

(1988), applies when a case is transferred from one district

court to another. See id. at 816. (“[T]he [law of the case]

doctrine applies as much to the decisions of a coordinate

court in the same case as to a court’s own decisions.”).

However, as the district court correctly recognized, “[t]he

doctrine does not apply if the court is ‘convinced that [the

prior decision] is clearly erroneous and would work a

manifest injustice.’ ” Agostini v. Felton, 521 U.S. 203, 236,

117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (quoting Arizona

v. California, 460 U.S. 605, 618 n.8, 103 S. Ct. 1382, 75

L. Ed. 2d 318 (1983)).

Appendix A

Whether the second district judge correctly overruled

the decision of the first district judge is of no moment on

appeal, however, when we are faced with an issue of law.

Notwithstanding plaintiff’s assertions to the contrary, the law

of the case doctrine does not prevent either party from seeking

review of an erroneous decision by a district court. On appeal,

“the question is not whether the second judge should have

deferred to the ruling of the first judge, but whether that ruling

was correct.” Williams v. Comm’r of Internal Revenue, | F.3d

502, 503 (7th Cir. 1993); see also Champaign-Urbana News

Agency, Inc. v. J.L. Cummins News Co., 632 F.2d 680, 683

(7th Cir. 1980) (“[O]bviously we cannot be expected to

reverse a correct decision by one district judge simply because

we find it is contrary to a prior ruling by another district

judge in the same case.”) (internal quotation omitted).

As we indicated above, the district court correctly found that

McMasters failed to properly serve the United States;

therefore, plaintiff’s first argument fails.

Next, McMasters contends that service was proper under

Ninth Circuit precedent and that the district judge in the

Northern District of Illinois should have applied that law

when evaluating whether service was proper. McMasters

relies on Borzeka v. Heckler, 739 F.2d 444 (9th Cir. 1984),

to support her contention that the district judge in the Central

District of California properly concluded that service had

been effected on the United States. In Borzeka, the plaintiff

attempted to serve the U.S. Attorney by sending the summons

and complaint by certified mail rather than personally serving

the U.S. Attorney as required at that time by Rule 4(d)(5) of

the Federal Rules of Civil Procedure. See id. In reversing

the district court’s dismissal, the Ninth Circuit held that

failure to comply with the personal service requirement of

Appendix A

Rule 4(d)(5) did not require dismissal if: “(a) the-party that

had to be served personally received actual notice, (b) the

defendant would suffer no prejudice from the defect in service,

and (d) the plaintiff would be severely prejudiced if his complaint

were dismissed.” Jd. at 447 (footnote omitted).

We are not convinced that McMasters’ service of the

United States was proper even under the test articulated in

Borzeka; however, we need not consider that issue because

McMasters’ assertion that Ninth Circuit precedent applies

in this case is incorrect. Although the law of the transferor

court continues to apply when a diversity case is transferred

from one district court to another under § 1404(a), see Van

Dusen v. Barrack, 376 U.S. 612, 639, 84 S. Ct. 805,

11 L. Ed. 2d 945 (1964), the transferee court is usually “free

to decide [federal issues] in the manner it views as correct

without deferring to the interpretation of the transferor

circuit,” Jn re Korean Air Lines Disaster, 829 F.2d i171, 1174

(D.C. Cir. 1987) (Ruth B. Ginsburg, J.) (internal quotation

omitted), aff'd. on other grounds sub nom. Chan v. Korean

Air Lines, Ltd., 490 U.S. 122, 109 S. Ct. 1676, 104 L. Ed. 2d

113 (1989). On a limited number of federal issues, a court

may be required to apply the law of a different circuit to

cases which have been transferred under § 1404(a),

see Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1126-27

(7th Cir. 1993), but the general rule is that “[a] single federal

law implies a national interpretation .. . . [T]he norm is that

each court of appeals considers the question independently

and reaches its own decision, without regard to the geographic

location of the events giving rise to the litigation.” /d. at

1126; see also In re Korean Air Lines Disaster, 829 F.2d

at 1175.(“[B]ecause there is ultimately a single proper

10a

Appendix A

interpretation of federal law, the attempt to ascertain and

apply diverse circuit interpretations simultaneously is

inherently self-contradictory.”). Although “Congress might

require one federal court to apply another’s interpretation of

federal law ... § 1404(a) does not itself do so.” Eckstein,

8 F.3d at 1126. Only where the law of the United States is

specifically intended to be geographically non-uniform

should the transferee court apply the circuit precedent of the

transferor court. See id. (“Section 27A [of the Securities

Exchange Act of 1934] recognizes that different circuits had

taken different approaches to the appropriate statute of

limitations in suits under § 10(b), and it codifies this fractured

nature of federal law ....”). But see Menowitz v. Brown,

991 F.2d 36, 40-41 (2d Cir. 1993) (finding that a transferee

court should always apply the law of its circuit and ignore

the law of the transferor circuit under § 27A). Unlike the

statute at issue in Eckstein, the Federal Rules of Civil

Procedure are not intended to be geographically non-uniform.

Thus, the district court properly applied Seventh Circuit

precedent in evaluating whether McMasters’ case should be

dismissed for failure to serve the United States Attorney.

For the foregoing reasons, we find that the district court

properly dismissed McMasters’ complaint for failure to effect

proper service on the United States. The decision of the

district court is AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

lla

APPENDIX B — MEMORANDUM OPINION OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION DATED JUNE 6, 2000

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

98 C 6413

DEBRA McMASTERS, individually and as next-of-kin

of decedent, AMANDA LEE SCOTT, a minor,

Plaintiff,

vs.

UNITED STATES OF AMERICA, and

the DEPARTMENT OF THE NAVY,

Defendants.

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the Court on Plaintiff’s motion

to reconsider this Court’s prior decision to grant Defendants’

motion for judgment on the pleadings. For the reasons set

forth below, the Court denies Plaintiff’s motion to reconsider.

i2a

Appendix B

LEGAL STANDARD

Rule 59(e) permits parties to file, within ten days of the

entry of a judgment, a motion to alter or amend the judgment.

It maybe invoked to alert the court to matters such as newly

discovered evidence or manifest errors of law or fact. See Jn

the Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996),

cert. denied sub nom Prince v. Unsecured Creditors

Committee, 519 U.S. 1040, 117 S.Ct. 608, 136 L.Ed.2d 534

(1996); Russel v. Delco Remy Div. of General Motors Corp.,

51 F.3d 746, 749 (7th Cir. 1995). However, the Rule does

not give a party the opportunity to undo its own procedural

failures or present new evidence or arguments “that

could and should have been presented to the district court

prior to judgment.” Moro v. Shell Oil Co., 91 F.3d 872, 876,

(7th Cir. 1996), citing LB Credit Corp. v. Resolution Trust

Corp., 49 F.3d 1263, 1267 (7th Cir. 1995). To be successful,

a Rule 59(e) motion “must clearly establish either a manifest

error of law or fact or must present newly discovered

evidence.” LB Credit Corp., 49 F.3d at 1267, quoting FDIC

v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986). The decision

of whether to grant or deny a Rule 59(e) motion “is entrusted

to the sound judgment of the district court.” Matter of Prince,

85 F.3d at 324, citing LB Credit Corp., 49 F.3d at 1267. It is

with these principles in mind that the Court considers the

present motion.

DISCUSSION

The Court previously granted the motion of Defendants,

the United States and the Department of the Navy, for

judgment on the pleadings. See McMasters v. United States,

l3a

Appendix B

No. 98 C 6413, 2000 WL 336549 (N.D. Ill. Mar. 28, 2000).

This Court determined that Plaintiff Debra McMasters’

(“McMasters”) failure to ever serve the U.S. Attorney was

fatal to her case. In so doing, the Court sought guidance from

Seventh Circuit caselaw and departed from an earlier ruling

from the Central District of California. See id. at *3-4.

Presently, McMasters moves the Court to reconsider its

previous decision, arguing that the Court erred, not in its

interpretation of Seventh Circuit caselaw, but in relying on

Seventh Circuit caselaw rather than Ninth Circuit caselaw

in analyzing the previous motion.

Because the Court finds that it was not erroneous to rely

on Seventh Circuit caselaw and precedent in evaluating the

Federal Rule of Civil Procedure service issues in Defendants’

motion for judgment on the pleadings, the Court denies

McMasters’ motion to reconsider. “A single federal law

implies a national interpretation. Although courts of appeals

cannot achieve this on their own, the norm is that each court

of appeals considers the question independently and reaches

its own decision, without regard to the geographic location

of the events giving rise to the litigation.” Eckstein v. Balcor

Film Investors, 8 F.3d 1121, 1126 (7th Cir. 1993); see also

In re Korean Air Lines Disaster, 829 F.2d 1171, 1173 (D.C.

Cir. 1987) (Ruth B. Ginsburg, J.), affirmed on other grounds

sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109

S.Ct. 1676, 104 L.Ed.2d 113 (1989) (“the transferee court

[should] be free to decide a federal claim in the manner it

views as correct without deferring to the interpretation of

the transferor circuit”).

l4a

Appendix B

McMasters cites to Eckstein in support of its argument that

this Court should apply Ninth Circuit decisional law; however,

McMasters misunderstands Eckstein. In Eckstein, the Seventh

Circuit affirmed the decision in Korean Airlines that a transferee

court should decide federal claims independently without

guessing how the transferor court would reason. See Eckstein,

8 F.3d at 1126; Mark v. Keycorp Mortgage Inc., 1996 WL 465400,

at *6, n.4 (N.D. Ill. Aug. 8, 1996). Eckstein, however, drew a

narrow exception for situations where the federal law to be

applied is purposely not intended to be geographically uniform

among the circuits. See Eckstein, 8 F.5d at 1126; Mark, 1996

WL 465600, at *6, n.4. Nevertheless, where federal law is

Procedure, but is interpreted differently among the circuits,

the law of the transferee court governs. See Eckstein, 8 F.3d

at 1126-27; Mark, 1996 WL 465400, at * 6, n.4. In interpreting

federal law, “Binding precedent for all is set only by the Supreme

Court, and for the district courts within a circuit, only by the

court of appeals for that circuit.” Korean Airlines, 829 F.2d

at 1176. Therefore, this Court did not err in analyzing the Federal

Rule of Civil Procedure 4(i) service issues according to Seventh

Circuit decisional law.

CONCLUSION

For the reasons set forth above, the Court denies Plaintiff's

motion to reconsider.

s/ Charles P. Kocoras

Charles P. Kocoras

United States District Judge

Dated: June 6, 2000

lSa

APPENDIX C — MEMORANDUM OPINION AND

JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

ILLINOIS, EASTERN DIVISION

DATED MARCH 27, 2000

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

98 C 6413

DEBRA McMASTERS, individually and as next-of-kin

of decedent, AMANDA LEE SCOTT, a minor,

Plaintiff,

VS.

UNITED STATES OF AMERICA, and

the DEPARTMENT OF THE NAVY,

Defendants.

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge.

This case comes before the court on defendant United

States’ (“the government”) motion for judgment on the

pleadings or in the alternative for summary judgment and

plaintiff Debra McMasters’ (“McMasters”) motion for

summary judgment. For the reasons set forth below, the Court

grants the government’s motion and denies McMasters’

motion in its entirety.

l6a

Appendix C

BACKGROUND

Valentine Underwood (“Underwood”), although not a

party to this case, is the central figure in this tragic story.

Underwood enlisted in the Marine Corps in Maryland in

1990. On his enlistment application, he disclosed that he had

been arrested for rape in 1988 in New York. Further

investigation revealed that Underwood had also been arrested

in Maryland in 1987 for the same offense. Neither arrest

resulted in a conviction. On the section of the application

relating to drug use, Underwood stated, falsely, that he had

never used any kind of illegal drug. Despite Underwood’s

arrest record, the Marines issued a waiver that allowed

Underwood to enlist in the Corps.

In the summer of 1991, Underwood was stationed at the

Marine Corps base at 29 Palms, California. While stationed

there, Underwood was once again investigated in connection

with a reported rape. While the investigation was pending,

Underwood regularly left the base. Both Underwood and his

roommate, Perry Bernard Osbey (““Osbey”’) were both members

of the base basketball team, coached by Sergeant Larry Isom

(“Isom’’). Osbey regularly socialized with Underwood, but

Isom’s interactions with Underwood were limited to two

conversations in which the two had mostly discussed basketball.

Early on the moming of August 2, 1991, Underwood went to

his room on the base to try to convince Osbey to accompany

him to an off-base apartment occupied by Rosalie Ortega,

a 20-year-old, and plaintiff’s decedent, Amanda Lee Scott,

a 15-year-old. Osbey noted that Underwood’s eyes were

glassy and that Underwood was acting strangely. Osbey had

heard rumors that Underwood had been using cocaine but

17a

Appendix C

did not know if the rumors were true. Whether because of

Underwood’s strange behavior or because of the basketball

tournament in which both Osbey and Underwood were to

participate later that day, Osbey chose not to go to the

apartment. When Underwood did not come to the designated

gathering place for the basketball team to leave for the

tournament, Isom asked Osbey if he knew where Underwood

was, and Osbey told him that Underwood was at some girls’

apartment off base and that Osbey had an idea where the

apartment was. At first Isom decided to drive to get

Underwood but later changed his mind because he was so

angry with Underwood for being late. Underwood later

showed up at the tournament, and soon it was discovered

that at the time he was to have met Isom and Osbey and the

other members of the team, Underwood was murdering

Ortega and Scott at the apartment where he told Osbey he

was going. Underwood was charged with the murders shortly

thereafter and for the June rape on August 14, 1991. Medical

examination of the victims found Underwood’s sperm in both

victims. A state court convicted Underwood of both murders

in 1997, and he is serving two consecutive life sentences in

California. After Underwood’s conviction, McMasters filed

the instant action seeking damages from the government and

the Department of the Navy under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C.A. §§ 2671 et seg. The case,

originally filed in the Central District of California on

February 28, 1995, was transferred to the Northern District

of Illinois in 1998. The government has moved for judgment

on the pleadings or, in the alternative, for summary judgment,

and McMasters has moved for summary judgment.

18a

Appendix C

LEGAL STANDARDS

After the close of pleadings, a defendant may, pursuant

to Rule 12(c) of the Federal Rules of Civil Procedure, move

for judgment on the pleadings to dispose of the case on the

basis of the underlying substantive merits. The appropriate

standard for a judgment on the pleadings is that applicable

to summary judgment, except that the court may consider

only the contents of the pleadings. See Alexander y. City of

Chicago, 994 F.2d 333, 336 (7th Cir. 1993). Thus, all well-

pleaded allegations are taken as true, and the facts and

inferences to be drawn from those allegations are viewed in

a light most favorable to the plaintiff. See id.

Summary judgment is appropriate when the record,

viewed in a light most favorable to the nonmoving party,

reveals that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c). The moving party bears the

initial burden of showing that no genuine issue of material

fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 325,

106 S.Ct. 2458, 91 L.Ed.2d 265 (1986). The burden then

shifts to the nonmoving party to show through specific

evidence that a triable issue of fact remains on issues on

which the nonmovant bears the burden of proof at tnal. See id.

The nonmovant may not rest upon mere allegations in

the pleadings or upon conclusory statements in affidavits.

The nonmovant must go beyond the pleadings and s::pport

its contentions with proper documentary evidence. See id.

The plain language of Ruie 56(c) mandates the entry of

summary judgment against a party who fails to establish the

—

19a

Appendix C

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.

“In such a situation there can be ‘no genuine issue as to any

material fact,’ since a complete failure of proof concerning

an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” See id. at 323.

For cross-motions for summary judgment, each movant

must individuaHy fulfill the stringent requirements necessary

to obtain summary judgment under Rule 56, such standards

still being applicable. See United Transportation Union vy.

Illinois Central R.R., 998 F. Supp. 874, 880 (N.D. IIl.1998).

By filing cross-motions for summary judgment, the parties

do not waive trial by the merits, but each party merely

believes that the court should grant it judgment without trial,

unless the judge disagrees. See Miller v. LeSea Broadcasting,

Inc., 87 F.3d 224, 230 (7th Cir. 1996). Indeed, upon receipt

of cross-motions for summary judgment, the court is not

required to grant summary judgment as a matter of law for either

side. See Brownlee v. City of Chicago, 983 F. Supp. 776, 779

(N.D. Ill. 1997); Boozell v. United States, 979 F. Supp. 670, 674

(N.D. Ill. 1997). Rather, the court will evaluate each motion on

its merits, resolving factual uncertainties and drawing all

reasonable inferences against the movant. See Brownlee,

983 F. Supp. at 779; Boozell, 979 F. Supp. at 670; United

Transportation Union, 998 F. Supp. at 880. With all these

principles in mind, the Court evaluates the merits of the motions.

20a

Appendix C

DISCUSSION

As apreliminary matter, the government argues that this

case should be dismissed in its entirety because of various

problems with McMasters’ service of the U.S. Attorney, even

though Judge Timlin of the Central District of California

deemed the government served because McMasters had

substantially complied with the requirements of service.

Because the Court finds McMasters’ complete failure to serve

the U.S. Attorney fatal, the Court departs from the Central

District of California’s decision and dismisses this action

against the United States.

McMasters filed her complaint against the United States

and the Department of the Navy in the Central District of

California on February 28, 1995. On, July 30, 1995, she

served the United States Marine Corps by hand delivering a

copy of the summons and complaint to the Marine Corps’

Air and Ground Combat Center in Twenty-Nine Palms,

California. In June 1996, over a year after filing her

complaint, McMasters sent a copy of the summons and

complaint via certified mail to the Attorney General of the

United States. In addition, in June 1996, McMasters sent by

certified mail copies of the summons and complaint to the

Commandant of the Marine Corps and the Department of

the Navy. McMasters did not and has never properly served

the U.S. Attorney for the district in which the action was

brought or any other U.S. Attorney.

After the district court issued repeated orders to

McMasters to show cause why the action should not be

dismissed for lack of diligent prosecution based on lack of

2la

Appendix C

service, McMasters moved for default judgment on March

25, 1998 because the government had not responded to her

complaint. The district court vacated this motion for default

because McMasters had not requested an Entry of Default

by the Clerk. Subsequently, McMasters filed another motion

for default judgment on June 8, 1998. The government

opposed this motion for default judgment, asserting that the

U.S. Attorney was unaware of McMasters’ action until the

filing of the March 25, 1998 motion for default judgment

because McMasters had never properly served the

U.S. Attorney with a summons and complaint.

In a minute order, Judge Timlin denied the motion for

default judgment, but “deem[ed] the U.S. Attorney’s Office as

served because McMasters, representing herself pro se, has

‘substantially complied’ with Fed.R.Civ.Proc. [sic] Rule 4 and

it is clear that the U.S. Attorney’s Office by its response to the

instant motion has actual notice of the complaint against

its clients, the United States of America and the Department

of the 1 Navy.” See McMasters v. U.S., No. 95-0064 (C.D.Ca.

Aug. 18, 1998). Judge Timlin also noted that McMasters

contended that she had a justifiable excuse for her failure to

properly serve, which was that she received incorrect

information regarding service of process. Finally, Judge

Timlin found that the government had not shown any

prejudice from the defective service, whereas he concluded

McMasters would be severely prejudiced because she would

lose her claim.

Although the Court is generally bound by the law of the

case doctrine to not upset prior rulings in a case, it is not

improper for a court to depart from a prior holding if it is

22a

Appendix C

convinced that “the initial decision was clearly erroneous

and would work a manifest injustice.” Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 817 (1988); Arizona

v. California, 460 U.S. 605, 619, n.8, 103 S.Ct. 1382, 1391,

n.8, 75 L.Ed.2d 318 (1983). Because the Court is convinced

that the decision of the Central District of California

regarding service of process was clearly erroneous and

would work a manifest injustice, the Court will depart from

that decision.

Federal Rule of Civil Procedure 4(i) sets out the require-

ments for service upon the United States, and its agencies,

corporations, or officers. See Fed.R.Civ.P. 4(i). It provides

in relevant part:

(1) Service upon the United States shall be effected

(A) by delivering a copy of the summons and

of the complaint to the United States attorney for

the district in which the action is brought or to an

assistant United States attorney or clerical

employee designated by the United States attorney

in a writing filed with the clerk of the court or by

sending a copy of the summons and of the

complaint by registered or certified mail addressed

to the civil process clerk at the office of the United

States attorney and

(B) by also sending a copy of the summons

and of the complaint by registered or certified

mail to the Attorney General of the United States

at Washington, District of Columbia ....

Fed.R.Civ P. 4(i)(1).

23a

Appendix C

Further, Rule 4(m) allows 120 days for a plaintiff to serve the

summons and the complaint and allows the Court to grant

appropriate extensions. See Fed.R.Civ.P. 4(m). Rule 4(i)(3) also

provides that a court should allow a reasonable time for a

claimant to cure a failure to “serve multiple officers, agencies

or corporations of the United States if the plaintiff has effected

service on either the United States attorney or the Attorney

General for the United States.” Fed.R.Civ.P. 4(i)(3).

Although McMasters mailed a copy of the summons and

complaint via certified mail to the Attorney General pursuant

to Rule 4(1)(1)(B), she failed to ever properly serve the U.S.

Attorney in accordance with Rule 4(i)(1)(A). This failure of

service is fatal to McMasters’ claim. Although a court may

grant an extension of time so as to approve service made

outside the 120 day period provided in Rule 4(m) or cure a

defect in serving multiple officers, agencies or corporations

of the United States, a court may not simply condone a

complete failure to serve. Compare Tuke v. United States,

76 F.3d 155, 156-57 (7th Cir. 1996) with Panaras v. Liquid

Carbonic Industries Corp., 94 F.3d 338, 340-41

(7th Cir. 1996). Thus, the Central District of California may

have been within its discretion in permitting McMasters’

service on the Attorney General nearly 15 months after the

filing of her complaint, but clearly erred in excusing

McMasters from ever having served or having to serve the

U.S. Attorney.

In properly serving the United States, it is not sufficient

to serve only the Attorney General. See Juke, 76 F.3d at

156-57. Rather, a claimant must comply with both prongs of

Rule 4(1)(1); “for good reason: that’s what the rule says.”

24a .

Appendix C

Id. at 157. Further, actual notice is insufficient to meet

the requirements of Rule 4. See, e.g., Swaim v. Moltan Co.,

73 F.3d 711, 719 (7th Cir. 1996); Mid-Content Wood

Products, Inc. v. Harris, 936 F.2d 297, 300 (7th Cir.1991)

(liberal construction of rules of service “cannot be utilized

as a substitute for the plain legal requirement as to the manner

in which service of process may be held”). So, even if the

U.S. Attorney did have actual notice of McMasters’

complaint, it was inadequate to meet the requirements of Rule

4(i)(1)(A) and does not “deem” the U.S. Attorney served.

Further, that McMasters was proceeding pro se does not

excuse her from complying with the mandates of Rule 4.

See Clark v. Runyon, 27 F. Supp.2d 1040, 1042 (N.D. III.

1998), quoting McNeil v. United States, 508 U.S. 106, 113,

113, S.Ct. 1980, 124 L.Ed.2d 21 (1993).

Thus, the Court dismisses McMasters’ complaint for

failure to properly serve the United States. Because the statute

of limitations has run on her claim, the dismissal essentially

becomes one with prejudice. See Tuke, 76 F.3d at 156.

Although this seems like a harsh result, the United States

Supreme Court has emphasized that federal judges should

carry out the rules of procedure, regardless of whether those

rules strike the judge as optimal. See, e.g., Leatherman v.

Tarrant County, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d

517 (1993); Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct.

2379, 91 L.Ed.2d 18 (1986). This is because “in the long

run, experience teaches that strict adherence to the procedural

requirements specified by the legislature is the best guarantee

of evenhanded administration of the law.” Mohasco Corp. v.

Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d

532 (1980).

25a

Appendix C

McMasters claim also fails against the Department of

the Navy because she improperly served it and because the

Department of the Navy is not a proper defendant. Rule

4(i)(2) provides that “Service upon an officer, agency, or

corporation of the United States, shall be effected by serving

the United States in the manner prescribed by paragraph (1)

of this subdivision and by also sending a copy of the summons

and of the complaint by registered or certified mail to the

officer, agency, or corporation.” Fed.R.Civ.P. 4(i)(2). As

discussed above, McMasters failed to serve the United States

as prescribed in Rule 4(i), paragraph 1. This failure also

renders her service on the Department of the Navy insufficient

under Rule 4(i)(2). See Fed.R.Civ.P. 4(i)(2). Thus, the Court

dismisses McMasters’ claim against the Department of Navy.

In addition, the Department of the Navy must be

dismissed from this suit because it is not a proper defendant.

The United States is the only party that can be sued under

the FTCA; individual agencies or departments are not proper

parties to FTCA actions. See, e.g., Allen v. Veterans

Administration, 749 F.2d 1386, 1388 (9th Cir. 1984); Hughes

v. United States, 701 F.2d 56, 58 (7th Cir. 1982). For this

additional reason, the Department of the Navy is dismissed

as a defendant.

Having already dismissed McMasters’ complaint against

the United States and the Department of the Navy, it is

unnecessary for the Court to address McMasters’ motion for

summary judgment. The Court denies McMasters’ motion

for summary judgment as moot.

26a

Appendix C

CONCLUSION

For the reasons set forth above, the Court grants the

government’s motion for judgment on the pleadings or in

the alternative for summary judgment. The Court denies

McMasters’ motion for summary judgment in its entirety.

s/ Charles P. Kocoras

Charles P. Kocoras

United States District Court Judge

Dated: March 27, 2000

27a

Appendix C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case Number: 98 C 6413

Debra McMasters

United States of America et al

JUDGMENT IN A CIVIL CASE

4+ Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

rendered its verdict.

4 Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard

and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that judgment

on the pleadings is entered in favor of the defendants and

against plaintiff. Plaintiff to take nothing. All matters in

controversy having been resolved, final judgment is hereby

entered in favor of the defendants and against plaintiff.

Michael W. Dobbins, Clerk of Court

Date: 3/27/2000 s/ Stephen C. Tokoph

Stephen C. Tokoph, Deputy Clerk

28a

APPENDIX D — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DENYING PETITION FOR REHEARING

DATED NOVEMBER 2, 2001

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

AMENDED: November 2, 2001

November 1, 2001

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

No. 00-2991

DEBRA McMASTERS,

Plaintiff-Appellant,

UNITED STATES OF AMERICA, and

THE DEPARTMENT OF THE NAVY,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 98 C 6413

Charles P. Kocoras,

Judge.

29a

Appendix D

ORDER

On consideration of the petition for rehearing and petition

for rehearing en banc, no judge in active service has requested

a vote on the petition for rehearing en banc,* and all of the

judges on the original panel have voted to deny rehearing.

It is, therefore, ORDERED that rehearing and rehearing

en banc are DENIED.

* Chief Judge Flaum and Judge Ripple took no part in its

consideration.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.