United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
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
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.
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
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.
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.
Failure to Timely Serve
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).
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. 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.
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).
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
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 ...