United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
matter comes before the Court on the expiration of two
notices of calls for dismissal pursuant to Federal Rule of
Civil Procedure 4(m). ECF Nos. 20-21. For the reasons set
forth below, the matter is DISMISSED WITHOUT
FACTS AND PROCEDURAL HISTORY
December 19, 2017, Plaintiff filed suit against Maria Hope
(“Hope”), the United States Postal Service
(“USPS, ” and together with Hope,
“Defendants”), and various fictitious individuals
and entities (“Fictitious Defendants”). Plaintiff
alleges that Hope videotaped her changing in the locker room
of a USPS facility on August 19, 2016, and showed the
recording to other employees of USPS. Compl. ¶ 9, ECF
filed four affidavits of service. ECF Nos. 6-7, 9-10
(evidencing service left with Hope's daughter at their
New Jersey home; attempted service on USPS at a Hoboken post
office; service on the U.S. Attorney General; and attempted
service on the New Jersey Attorney General). Next, Plaintiff
requested defaults against USPS and Hope. ECF Nos. 13-14. The
Clerk entered default against Hope, but refused to do so
against USPS due to Plaintiff's incomplete service of
process. See Clerk's Vacated Entry of Default
and Quality Control Message (Aug. 23, 2018). Next, USPS's
counsel filed a letter (“AUSA Letter”) explaining
that Plaintiff failed to properly serve USPS under Federal
Rule of Civil Procedure (“FRCP”) 4(i) because
Plaintiff did not serve the U.S. Attorney for the District of
New Jersey. AUSA Letter, ECF No. 16. The letter also noted
that FRCP 4(i) required Plaintiff to serve the United States
to effectuate service on Hope, and therefore neither
defendant had been properly served. Id.
Plaintiff's counsel then filed an affidavit acknowledging
the mistake and promising to serve the United States
Attorney. Goldfield Aff. ¶ 5, 8-9, ECF No. 19.
September 19, 2018, the Clerk docketed a Notice of Call for
Dismissal (the “Notice”) as to USPS. ECF No. 20.
The Notice required Plaintiff to evidence completed service
or otherwise demonstrate why USPS should not be dismissed by
September 27, 2018. Id. On September 24, the Court
docketed an order (the “Order”) vacating the
default against Hope. ECF No. 21. The Order required
Plaintiff to effectuate service on Hope by serving the United
States and cautioned that “[u]nless service of process
is effectuated . . . by October 1, 2018, this action [would]
be dismissed as to . . . Hope.” Id. Plaintiff
then refiled the previously submitted affidavit of service
evidencing service on Hope's daughter. Compare
ECF No. 6, with ECF No. 22. Plaintiff has not filed
any additional evidence of service on the United States, has
not attempted to show good cause for the failure to
effectuate service, and has not requested an extension.
Plaintiff Has Not Effectuated Service on USPS or
ten months has passed since Plaintiff filed her complaint and
she has yet to effectuate service on either Defendant.
Plaintiff failed to effectuate service on USPS because
Plaintiff never served the U.S. Attorney for the District of
New Jersey. See FRCP 4(i)(1)-(2); Notice, ECF No.
20; AUSA Letter, ECF No. 16. And Plaintiff failed to
effectuate service on Hope because Plaintiff did not complete
service on the United States, which in turn requires service
on the U.S. Attorney. See FRCP 4(i); Order, ECF No.
21; AUSA Letter, ECF No. 16.
The Court Provided Notice Under FRCP 4
a defendant is not served within 90 days after the complaint
is filed, the court- on motion or on its own after notice to
the plaintiff-must dismiss the action without prejudice
against that defendant or order that service be made within a
specified time.” FRCP 4(m). “The court must allow
a party a reasonable time to cure its failure” to serve
a federal agency, a federal employee sued in her official
capacity, or a federal employee sued “in connection
with duties performed on the United States'
behalf.” FRCP 4(i)(4).
Plaintiff failed to effectuate service against USPS, a
federal agency, and Hope, a federal employee sued for conduct
occurring “while within the course and scope of her
employment with [USPS].” See Compl. ¶ 9.
As such, the Court provided notice to Plaintiff that service
was incomplete and gave Plaintiff reasonable time to cure its
defects. See Notice, ECF No. 20; Order, ECF No. 21.
As the Court's deadlines have come and gone, it now
considers whether to dismiss the action under FRCP 4(m).
No Good Cause Exists to Extend the Time to Serve
the plaintiff shows good cause for the failure [to serve
process], the court must extend the time for service for an
appropriate period.” FRCP 4(m). Courts consider three
factors in their good cause analysis: (1) the reasonableness
of a party's efforts to serve; (2) prejudice by lack of
timely service; and (3) whether the plaintiff moved for an
extension. MCI Telecommunications Corp. v. Teleconcepts,
Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (citation
omitted). “Absence of prejudice alone can never
constitute good cause to excuse late service.”
Id. “[T]he primary focus is on the
plaintiff's reasons for not complying with the time limit
in the first place.” Id. The Third Circuit
equates “good ...