United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, District Judge.
Before the Court is a motion to dismiss filed by the United States of America. Docket No. 16. The government has made a special appearance because the defendants are current or former employees of the National Park Service. Id. at 1. The government argues that dismissal is appropriate because the defendants have never been appropriately served. Id.
As background, Lisa Keys filed this Bivens  action in November 2009. Docket No. 1. Fifteen months later, an Order was issued in February 2011 directing her to explain why service had not been completed within 120 days as required by Federal Rule of Civil Procedure 4(m). Docket No. 2. Instead of responding, Keys asked for and received summonses from the Clerk - but then never served them on the defendants. In July 2011, the Magistrate Judge ordered Keys to serve the defendants by August 25, 2011, and cautioned Keys that the case would be dismissed under Rule 4(m) if service was not completed by then. Docket No. 5.
Shortly thereafter, Keys returned as executed four summonses. They reveal that she took the following steps:
1. On August 8, 2011, Keys sent a summons and copy of the complaint via certified mail, return receipt requested, to the United States Attorney's Office for the Southern District of Mississippi, to the attention of the Civil Process Clerk. Docket No. 10, at 1-3. The return receipt shows that it was received the following day. Id. at 2.
2. On August 8, 2011, Keys sent a summons and copy of the complaint via certified mail, return receipt requested, to the Attorney General of the United States, Eric Holder, in Washington, D.C. Docket No. 10. The return receipt shows that it was received on August 16, 2011. Id. at 2.
3. On August 9, 2011, Keys sent a summons and copy of the complaint via certified mail, return receipt requested, to Dave Bodge at Guidepost Solutions in Washington, D.C. Docket No. 9, at 7-9. The return receipt shows that it was signed for on August 11, 2011, by a person whose signature cannot be identified. Id. at 8.
4. On August 12, 2011, Keys sent a summons and copy of the complaint via certified mail, return receipt requested, to Clyde Yee at the Grand Canyon National Park. Id. at 4-6. The return receipt shows that it was signed for by Lisa Reynolds on August 16, 2011. Id. at 5.
Keys filed these executed summonses with the Clerk on August 24 and 25, 2011. Docket Nos. 10-11. Nothing happened for the next 33 months.
In May 2014, the Magistrate Judge set this matter for a status conference for early June. The Minute Entry shows that Keys was ordered "to advise the Court via email not later than June 11, 2014, as to whether she wishes to proceed pro se with this action." After a further email exchange with the Magistrate Judge, Keys notified the Clerk that she wished to proceed with her case pro se. Docket Nos. 12-13.
Keys' letter indicates that she believes she properly served Yee at the Grand Canyon. Id. She also claims she named the United States as a defendant by listing it on her summons, adding that she completed service upon the United States by her mailings. Id.
The government's motion argues that certified mail was not sufficient to serve the defendants, and even if it was, the recipients were not authorized to accept service for the defendants. Docket No. 16, at 3. It contends that dismissal is appropriate under Rule 4(m) because Keys had "numerous" opportunities over years to serve the defendants and failed to do so. Id. at 4. Finally, it argues that to the extent Keys stated a claim against the United States, it has sovereign immunity from Bivens actions. Id. at 4-5.
An earlier Text Order issued by the Magistrate Judge had given Keys 14 days to respond in writing to the government's anticipated motion to dismiss. See Text Only Order of July 31, 2014. As of this Order, more than 14 days have elapsed without a response having been filed. The Court will proceed to take up the government's motion.
Service of process is governed by Federal Rule of Civil Procedure 4. Rule 4(m) requires defendants who are not served within 120 days of the complaint's filing to be dismissed without prejudice unless the ...