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Foy v. Wilson

United States District Court, M.D. Georgia, Macon Division

August 6, 2019

GARY FOY, Plaintiff,
v.
HEATHER WILSON, Secretary, Department of the Air Force Defendant.

          ORDER

          MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT

         More than ninety days after filing his complaint, Plaintiff Gary Foy perfected service on Defendant Heather Wilson, Secretary of the Air Force, sued in her official capacity, by delivering copies of the summons and complaint to the United States Attorney for the Middle District of Georgia and sending copies by certified and registered mail. Docs. 1; 5; 24-4. Wilson then moved to dismiss for failure to state a claim. Doc. 14. For the following reasons, the motion (Doc. 14) is GRANTED in part and DENIED in part.

         I. BACKGROUND[1]

         The facts, as alleged in the complaint, are short and simple. Foy, a black male over the age of forty, has been employed by the United States Air Force since 1987. Doc. 1 ¶¶ 1, 5. In 2015, Foy worked as a Technical Data Engineering Supervisor. Id. ¶ 8. That same year, he applied and interviewed for the position of Supervisory Systems Engineer but was not selected despite his qualifications for the role. Id. ¶¶ 7, 10, 23, 33. The selecting official “returned the certification unfilled, refusing to fill the position.” Id. ¶ 11. After returning the position unfilled, a white male-whose age relative to Foy's was not alleged in the complaint-was offered the position. Id. ¶ 20. Believing that he was not selected because of his race and age, Foy filed a complaint with the Air Force's Equal Employment Opportunity Program (“EEO”). Id. ¶¶ 12, 17. After filing his EEO complaint, a black woman over the age of forty, who was an Air Force employee and had never applied for the position, was re-assigned to the position “to mitigate the EEOC [sic] complaint” despite lacking the qualifications for the role. Id. ¶¶ 13, 21, 22, 28, 30.

         The procedural history of this case, on the other hand, is long and cluttered. More than 180 days after filing his complaint with the EEO and having not received a final decision, Foy filed his complaint in this Court on July 26, 2018 against Wilson in her official capacity alleging race and age discrimination. Id. ¶¶ 3, 42. Less than thirty days after filing his complaint, Foy sent a copy of the summons and of the complaint by certified mail to Wilson and the United States Attorney General in Washington, D.C. Doc. 4-1; see also Doc. 1. Foy did not deliver a copy or summons of the complaint to the United States Attorney for the Middle District of Georgia or send copies by certified or registered mail within ninety days of filing his complaint.

         On January 30, 2019, more than six months after Foy filed his complaint, the Court ordered Foy to show cause why his case should not be dismissed without prejudice for failure to properly and timely serve the U.S. Attorney pursuant to Federal Rule of Civil Procedure 4(m). Doc. 5. That same day, Foy responded to the Court's order stating, incorrectly, that he had properly served Wilson in accordance with Rule 4 and filed a motion for default judgment. Docs. 6; 7. The Clerk declined to enter default because Foy had not served the U.S. Attorney by delivering a copy of the summons and complaint or sending copies by certified or registered mail. Docs. 11; 12. On February 6 and 15, respectively, Foy served the U.S. Attorney by delivering copies of the summons and complaint to the U.S. Attorney's office and sending copies by certified mail. Docs. 24-3; 24-4. He did not, however, respond further to the Court's show cause order.

         On April 8, Wilson moved to dismiss Foy's complaint with prejudice for failing to state a claim upon which relief could be granted. Doc. 14. The following day, the Court ordered Foy to respond to its January 30 show cause order. Doc. 15. On May 7, Foy responded to the order and Wilson's motion. Doc. 24. For the first time in her reply, Wilson moved to dismiss Foy's complaint for failure to timely serve the U.S. Attorney. Doc. 26 at 1 n.1.

         II. DISCUSSION

         A. Failure to Timely Serve

         Rule 4(i)(2) states that “[t]o serve a . . . United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the . . . officer[] or employee.” To serve the United States, a party must (1) send a copy of the summons and of the complaint by registered or certified mail to the United States Attorney General and (2) deliver or send a copy of the summons and of the complaint by registered or certified mail to the U.S. Attorney for the district where the action is brought. Fed.R.Civ.P. 4(i)(1)(A)(i)-(ii), 4(i)(1)(B). A party must properly serve the United States and the officer or employee with a summons and complaint within ninety days after the complaint is filed. Fed.R.Civ.P. 4(m).

         Foy stated in his complaint that he is suing Wilson in her official capacity only, and Rule 4(i)(2) thus applies. Doc. 1 ¶ 3. Foy timely sent a copy of the summons and of the complaint by certified mail to Wilson and to the Attorney General, thus partially complying with Rule 4(i)(2). Doc. 4-1; see also Doc. 1. However, Foy did not deliver a copy of the summons and complaint or send copies by registered or certified mail to the U.S. Attorney for the Middle District of Georgia-the district in which he brought his action-within ninety days of filing his complaint. Docs. 4; 24-4. Instead, Foy sent “courtesy copies” of the summons and complaint to the U.S. Attorney by first class mail.[2] Doc. 4. After the Clerk denied his application for default and the Court ordered him to show cause why his case should not be dismissed for failure to timely serve the U.S. Attorney, Foy properly served the U.S. Attorney-nearly seven months after filing his complaint. Docs. 1; 5; 9; 10; 11.

         Rule 4(m) states that if a defendant is not timely served, “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 period of time.” Rule 4(m) also states that the Court must extend the time for service, but only upon a showing of good cause for the plaintiff's delay. Good cause is shown when some outside factor, such as reliance on faulty advice, rather than inadvertence or negligence, prevented service. Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991) (citation omitted). If good cause is not shown, the Court must dismiss the action. Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir. 1991).

         Although aware that his initial response to the Court's show cause order was wrong (the Clerk having informed his lawyer that he had not properly served Wilson), Foy did not respond further to the show cause order until May 7 and then only after the Court ordered him to do so. Docs. 5; 7; 9; 10; 11; 12; 15; 24. In that response, Foy states he properly and timely served the Attorney General on August 6, 2018; the Government shut down from December 22 until January 25; and he perfected service on the U.S. Attorney on February 6, which he argues was a “reasonable time, since the Attorney General was properly served on August 6, 2018.” Doc. 24 at 3. However, Foy fails to explain why he did not perfect service on the U.S. Attorney within ninety days of filing his complaint, or by October 24, which was nearly two months before the Government shut down. See generally Id. Accordingly, the Court finds that Foy has failed to show good cause.

         Notwithstanding Foy's failure to show good cause, for limited situations such as this where a party sues a U.S. officer in her official capacity, Rule 4(i)(4)(A) applies. Rule 4(i)(4)(A) states that the Court must allow the plaintiff reasonable time to cure its failure to “serve a person required to be served under Rule 4(i)(2), if the [plaintiff] has served either the United States attorney or the Attorney General of the United States[.]” After the Court entered its show cause order, Foy served the U.S. Attorney within a week. Docs. 24-1; 24-3; 24-4. The Court, perhaps generously, finds this to be reasonable time to cure his failure to serve the U.S. Attorney once he received notice of what Rule 4 plainly requires. See Fed. R. Civ. P. 4(i) advisory committee's note to 2000 amendment (“A reasonable time to effect service on the United States must be allowed after the failure is pointed out.”). Accordingly, the Court will not dismiss Foy's complaint for failure to timely serve Wilson in her official capacity and his failure to show good cause for his untimeliness. Se ...


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