Opinion
Civil Action No. 04-1722 Section "R" (3).
January 7, 2005
AMENDED ORDER AND REASONS
On January 6, 2005, the Court entered an order and reasons granting defendants' motion to dismiss. That order is hereby vacated and replaced with this amended order and reasons.
Before the Court is defendants' motion to dismiss plaintiff's claims against them under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process and under Rule 12(b)(6) for failure to state a claim. Plaintiff does not oppose defendants' motion. For the following reasons, the Court GRANTS defendants' motion to dismiss for insufficient service of process.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Monique Jason is an employee with the United States Postal Service. Defendant Christopher Nugent is a Postal Inspector with the United States Postal Inspection Service. Defendant Kathleen Lester is a Postal Police Officer with the United States Postal Inspection Service. On March 23, 2004, test mail was sent through the Post Office. The test mail purportedly implicated Jason and another employee in mail theft. Jason alleges that she, but not the other employee, was "strip-searched" in the ladies room by Lester while Nugent stood outside and that nothing was found. Jason further alleges that defendants then searched her locker and car and also found nothing.
On June 21, 2004, Jason sued defendants, alleging that the search violated her constitutional right to be free of unreasonable search. She seeks compensatory and equitable relief, punitive damages, and attorney's fees and costs. Jason's attempt to hold Nugent and Lester liable for their role in depriving her of her constitutional rights is a Bivens claim. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Jason served defendants and the U.S. Attorneys by mail. Defendants received a summons and a copy of the complaint from a mail box designated for all Postal Police matters at their workplace.
In Bivens, the Supreme Court held that victims of a constitutional violation perpetrated by a federal actor may sue the individual offender for damages in federal court. 403 U.S. 388 (1971).
On August 13, 2004, Jason was charged with theft of mail matter by a postal employee. On October 21, 2004, a superseding indictment charged Jason with one count of unlawful delay of mail in violation of 18 U.S.C. § 1703(a) and two counts of possession of stolen mail matter in violation of 18 U.S.C. § 1708. Jason is currently scheduled to be tried on January 18, 2005.
Defendants now move to dismiss Jason's complaint under Rule 12(b)(5) for insufficient service of process because they were not served in their individual capacities, and under Rule 12(b)(6) because Jason's claims for relief have yet to accrue.
II. LAW AND ANALYSIS
If a party is not validly served with process, proceedings against that party are void. Aetna Bus. Credit, Inc. v. Universal Decor Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981). When service of process is challenged, the party on whose behalf service was made bears the burden of establishing its validity. Id. "The district court enjoys a broad discretion in determining whether to dismiss an action for ineffective service of process." George v. United States Dep't of Labor, 788 F.2d 1115, 1115 (5th Cir. 1986).
Defendants move to dismiss Jason's claims because Jason sues them in their individual capacities but has not served them with process individually in accordance with Rule 4(e). Jason purports to bring her Bivens claim against defendants in both their official and individual capacities.
Jason's claims against defendants in their official capacities with the United States Postal Service is considered a suit against the United States. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). The United States has sovereign immunity from suit except where it consents to be sued. See United States v. Mitchell, 463 U.S. 206, 212 (1983). The United States has not waived sovereign immunity in a Bivens suit for monetary damages or injunctive relief. Oladipupo v. Austin, 104 F. Supp. 2d 623, 625 (W.D. La. 2000) (citing United States v. Rural Elec. Convenience Coop. Co., 922 F.2d 429, 434 (7th Cir. 1991)). Jason therefore may not maintain a suit against Nugent and Lester in their official capacities. Accordingly, the Court sua sponte dismisses Jason's claims against defendants in their official capacities.
Jason's Bivens action is therefore available against defendants only in their personal capacities. Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F. 3d 282, 286 (5th Cir. 1999). Defendants in Bivens actions must be served as individuals, pursuant to Rule 4(e). Simpkins v. Dist. of Columbia Gov't, 108 F.3d 366, 369 (D.C. Cir. 1997) (collecting authorities). Serving public officials in their official capacity under Rule 4(i), as Jason did in this case, does not constitute individual service and is thus insufficient. Robinson v. Turner, 15 F.3d 82, 85 (7th Cir. 1994); Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994). Because Jason sues federal officers for a violation of her constitutional rights, Jason must serve them personally in accordance with Rule 4(e).
Under Rule 4(e), federal litigants may use the procedural methods of service of process provided by the state in which the district court is located, see Rule 4(e)(1), or they may serve defendants by either personal or domiciliary service as defined in Rule 4(e)(2). Louisiana law requires domiciliary or personal service except in certain circumstances when delivery or mail is appropriate if the document that is being served does not require an appearance or an answer. LA. CODE CIV. PROC. Ann. arts. 1231, 1232, 1234, 1313. Here, defendants have attested that they were served with a summons and the complaint through the mail at their workplace. Louisiana law does not authorize service of an individual through the mail when the document that is being served requires an answer. LA. CODE CIV. PROC. Ann. art. 1313. Moreover, Louisiana law does not authorize service of an individual at the individual's workplace. Thus, Jason's service on defendants in their individual capacities was not sufficient under Rule 4 (e) (1).
Service of process here was also insufficient under Rule 4(e)(2). That provision provides that Jason may serve defendants by either personal or domiciliary service by:
delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
Fed.R.Civ.P. 4(e)(2). Jason's service of defendants by mailing a copy to their workplace was ineffective because it did not comply with the provisions of Rule 4(e). Jason's claims are, therefore, subject to dismissal for insufficiency of service of process under Rule 12(b)(5).
Rule 4(m) gives Jason 120 days to serve defendants. Jason filed her complaint on June 21, 2004. More than 120 days have passed since then. Under Rule 4(m), the district court has two choices when a plaintiff fails to serve defendant within a 120-day period: it either may "dismiss the action without prejudice . . . or direct that service be effected within a specified time." Fed.R.Civ.P. 4(m). If, however, the plaintiff shows good cause for the failure, the court must extend the time of service for an appropriate period. Id. The plaintiff carries the burden of proving good cause for the failure to effect timely service. See Gitz v. St. Tammany Parish Hospital, 125 F.R.D. 138, 138 (E.D. La. 1989); Purvis v. Jenkins, No. Civ.A. 97-0263, 1998 WL 290212, at *2 (E.D. La. June 2, 1998). A plaintiff shows good cause for delay when a good faith attempt is made to effectuate service, but the service nonetheless fails to satisfy all the requirements set forth in Rule 4. See Chilean Nitrate Corp. v. M/V Hans Leonhardt, 810 F. Supp. 732, 735 (E.D. La. 1992). Mere inadvertence, mistake of counsel, and ignorance of the rules cannot establish good cause. Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993).
Here, Jason has not demonstrated good cause for her failure to serve defendants in their individual capacities. Jason has not opposed defendants' motion to dismiss. The Court finds that her failure to serve defendants in their individual capacities was the result of a mistake or ignorance of the rules, which cannot establish good cause. Id. Therefore, defendants' motion to dismiss for insufficiency of service of process is granted.
B. Failure to State a Claim
Because the Court has dismissed Jason's claims on other grounds, the Court need not reach defendants' motion to dismiss for failure to state a claim.
III. CONCLUSION
For the foregoing reasons, the Court dismisses plaintiffs' claims against defendants in their official capacities. The Court also GRANTS defendants' motion to dismiss for insufficiency of service of process on them in their individual capacities. The dismissal is without prejudice to plaintiff's right to refile against these defendants in their individual capacities.