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Anyanwu v. United States Citizenship and Naturalization Services

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


August 7, 2008

ATHAN EKEJIUBA ANYANWU, PLAINTIFF,
v.
UNITED STATES CITIZENSHIP AND NATURALIZATION SERVICES, DEFENDANT.

The opinion of the court was delivered by: Simandle, District Judge

MEMORANDUM OPINION

1. This matter comes before the Court on its own initiative, pursuant to Fed. R. Civ. P. 4(m), because it appears that more than 120 days have elapsed since the Complaint*fn1 in this action was filed on January 2, 2008 and the Complaint has not been properly served on Defendant.

2. Plaintiff, through his attorney Emmanuel O. Anyaele, Esq., filed this action on January 2, 2008 pursuant to 8 U.S.C. § 1421(c). Plaintiff seeks to have this Court review the February 7, 2007 final decision of the United States Citizenship and Naturalization Services ("USCNS") denying Plaintiff's application for naturalization.

3. Plaintiff appears to have attempted to effectuate service upon the United States by sending a copy of the Complaint via certified mail to the office of the United States Immigration and Naturalization Services in Cherry Hill, New Jersey. (Docket Item 2.) However, this is not proper service pursuant to Rule 4(i), Fed. R. Civ. P., which is set forth in full in the margin.*fn2

4. In order to properly serve the Defendant, a United States agency, Plaintiff "must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency." Fed. R. Civ. P. 4(i)(2). In order to serve the United States, Plaintiff must comply with the requirements set forth in Rule 4(i)(1), which include serving "the United States attorney for the district where the action is brought" and "the Attorney General of the United States at Washington, D.C." Fed. R. Civ. P. 4(i)(1). Plaintiff has made no apparent effort to effectuate service on the United States in accordance with this Rule.

5. Under Rule 4(m), Fed. R. Civ. P., 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). As the Advisory Committee Notes to the 1993 Amendments suggest, good cause for an extension of time may be found when "the applicable statute of limitations would bar the refiled action." Advisory Committee's Notes on 1993 Amendment to Fed. Rule Civ. Proc. 4(m).

6. The Court will permit Plaintiff an additional thirty days from the entry of the accompanying Order to properly serve the defendant. This extension is appropriate in this case in light of the fact that the statute of limitations on Plaintiff's claim would not permit the refiling of this action.*fn3 See id.; see also 8 C.F.R. § 336.9(b) ("an applicant shall file a petition for review in the United States District Court having jurisdiction over his or her place of residence . . . within a period of not more than 120 days after the Service's final determination"). In the interim, the Court will dismiss Plaintiff's motion to amend/correct [Docket Item 1] without prejudice to Plaintiff's renewal of this motion after proper service has been effectuated.

7. If Plaintiff does not properly serve the Complaint and file his proofs of service within thirty days, the Court shall dismiss this action, pursuant to Fed. R. Civ. P. 4(m). An appropriate Order shall be entered.

JEROME B. SIMANDLE United States District Judge


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