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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

GHAZANFAR RAJA, 

 Plaintiff, Case No. 2:13-cv-11 

 JUDGE GREGORY L. FROST 

v. Magistrate Mark R. Abel 

JEH JOHNSON, Secretary, 

United States Department of Homeland 

Security, et al. 

 Defendants.

OPINION & ORDER 

This matter is before the Court for consideration of Defendants’ motion to dismiss (ECF 

No. 15). For the reasons that follow, the Court DENIES the motion.

I. BACKGROUND 

Plaintiff brings this lawsuit against Jeh Johnson (Secretary of the United States 

Department of Homeland Security),1

 Alejandro Mayorkas (Director of United States Citizenship 

and Immigration Services (“USCIS”)), and Mark Hansen (District Director of USCIS) 

(collectively, “Defendants”) in their official capacities. Plaintiff seeks a “writ in the nature of 

mandamus” to compel Defendants to process Plaintiff’s immigration application. (Am. Compl., 

ECF No. 7.) 

Plaintiff filed his Amended Complaint on January 16, 2013. (Id.) Summonses were 

issued to Defendants. (ECF No. 8.) The summonses were directed to the United States 

Attorney’s office in Columbus, Ohio. (Id.) On May 30, 2013 and June 3, 2013, Plaintiff filed 

documents purporting to show that the summonses had been returned executed as to each 

 

1

 Pursuant to Federal Rule of Civil Procedure 25(d), Jeh Johnson is automatically substituted as a Defendant in this 

action for Janet Napolitano, former Secretary of the Department of Homeland Security. 

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Defendant. (ECF Nos. 9 & 10.) Those filings, however, state that the summonses were served 

only on United States Attorney Carter M. Stewart. (Id.) There is no record that Plaintiff sent a 

copy of the summons and Amended Complaint to Defendants or the Attorney General of the 

United States at Washington, D.C. For that reason, as explained in more detail below, service 

has not been perfected as to any Defendant. 

 On September 9, 2013, the Magistrate Judge assigned to this case issued an order 

directing Plaintiff to show cause why this case should not be dismissed for want of prosecution. 

(ECF No. 11, hereinafter “Show Cause Order”.) The Show Cause Order states: “Plaintiff has 

filed returns of service on defendants . . . Defendants have not responded to the complaint.” (Id.) 

The Show Cause Order also cites Southern District of Ohio Civil Rule 55.1(a), which states in 

relevant part: “If a party makes proper service of a pleading seeking affirmative relief but, after 

the time for making a response has passed without any response having been served and 

filed . . . .” Admittedly, as discussed below, the Show Cause Order could be read to suggest that 

service has been perfected, even though that is not the case. 

In response to the Show Cause Order, Plaintiff filed a “Motion for Default Judgment,” 

(ECF No. 12), which the Court denied as procedurally deficient (ECF No. 13). Plaintiff then 

filed an affidavit requesting an entry of default. (ECF No. 14.) Plaintiff’s request for default 

judgment remains pending. 

On November 22, 2013, Defendants moved to dismiss Plaintiff’s Amended Complaint 

pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 15.) Defendants argue in their 

motion that Plaintiff failed to properly serve any of the Defendants because he failed to send 

copies of the Amended Complaint and summons to the United States Attorney General and each 

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individual Defendant. Because Plaintiff failed to perfect service, Defendants oppose Plaintiff’s 

request for default judgment and seek dismissal of Plaintiff’s Amended Complaint. 

Plaintiff did not respond to Defendants’ motion. To date, the Court has no record of 

Plaintiff taking any action to correct service in response to Defendant’s motion. 

II. ANALYSIS 

Federal Rule of Civil Procedure 4 governs service in federal court. Defendants move for 

dismissal pursuant to Rule 4(m), which provides: 

If a defendant is not served within 120 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. But if the plaintiff shows good cause for the failure, the 

court must extend the time for service for an appropriate period. 

 The first issue for the Court is whether Defendants have properly been served. Pursuant 

to Rule 4(l), a party must provide proof of service to the court. The Court therefore examines the 

record in this case to determine whether Plaintiff properly served Defendants. 

 Upon review of the record, the Court agrees with Defendants that Plaintiff failed to 

perfect service upon them. Rule 4(i)(2) governs service upon the United States and its Agencies, 

Corporations, Officers or Employees sued in their official capacity. Pursuant to Rule 4(i)(2), to 

properly serve Defendants, Plaintiff was required to: 

 “[D]eliver a copy of the summons and of the complaint to the United States 

attorney for the district where the action is brought . . .” 

 “[S]end a copy of each by registered or certified mail to the Attorney General of 

the United States at Washington, D.C.;” and 

 “[S]end a copy of the summons and of the complaint by registered or certified 

mail to the agency, corporation, officer, or employee.” 

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FED. R. CIV. P. 4(i)(2) (incorporating FED. R. CIV. P. 4(i)(1)). 

 The Court has no record of Plaintiff completing the latter two requirements for any 

Defendant. As such, Plaintiff failed to perfect service on Defendants. 

 Defendants argue that, because Plaintiff failed to properly serve them within 120 days of 

filing his Amended Complaint, dismissal is proper under Rule 4(m). But Rule 4(m) must be read 

in conjunction with Rule 4(i)(4), which requires courts to extend the time period for service if the 

plaintiff met one of Rule 4(i)(2)’s first two requirements but failed to complete the remaining 

requirements. Specifically, Rule 4(i)(4) states: “The court must allow a party a reasonable time 

to cure its failure to: (A) serve a person required to be served under Rule 4(i)(2), if the party has 

served either the United States attorney or the Attorney General of the United States . . . .” 

 Rule 4(m) complements Rule 4(i)(2) in this respect. Pursuant to Rule 4(m), a Court 

“must” extend the time for service if the plaintiff shows good cause for the failure. The advisory 

committee’s note to Rule 4(m) states: “[a] specific instance of good cause is set forth in [Rule 

4(i)(4)], which provides for extensions if necessary to correct oversights in compliance with the 

requirements of multiple service in actions against the United States or its officers, agencies, and 

corporations.” FED. R. CIV. P. 4 advisory committee’s note, 1993 amendments. As such, under 

both Rule 4(i)(4) and Rule 4(m), if a plaintiff attempting to serve a United States officer or 

employee serves “either the United States attorney or the Attorney General of the United States” 

but fails to meet the remaining requirements of Rule 4(i)(2), the Court “must” extend the time for 

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service for an appropriate period before dismissing the complaint. Fed R. Civ. P. 4(i)(4) & (m); 

see also Cole v. Shinseki, No. 12-2969, 2013 WL 2289257, at *3 (W.D. Tenn. May 23, 2013).2

 

 Here, Defendants do not dispute that Plaintiff served Carter M. Stewart, the United States 

attorney for the Southern District of Ohio. Thus, pursuant to the plain language of Rule 4(i)(4), 

Plaintiff must be afforded a reasonable time to cure his failure to serve the remaining persons 

required to be served under Rule 4(i)(2). 

Defendants brush Rule 4(i)(4) aside by stating, “[t]he Fed. R. Civ. P. 4(i)(4) allowance of 

extended time does not apply to the case at bar in that the U.S. Attorney General was not 

served.” (ECF No. 15, at 6 n.2.) But Defendants misread Rule 4(i)(4). Under the plain language 

of that Rule, the Court “must” allow Plaintiff the opportunity to cure its defective service if 

Plaintiff “served either the United States attorney or the Attorney General of the United States.” 

FED. R. CIV. P. 4(i)(4) (emphasis added). Defendants do not dispute that Plaintiffs served the 

United States attorney. Accordingly, the fact that Plaintiff did not also serve the Attorney 

General of the United States does not remove this case from Rule 4(i)(4)’s reach. 

 The question becomes whether Plaintiff already had reasonable time to cure service. 

Rule 4(i)(4) contemplates that the “reasonable time to cure” service will begin running once the 

failure is pointed out. See, e.g., FED. R. CIV. P. 4 advisory committee’s note, 2000 amendment. 

The Court acknowledges that courts in other jurisdictions have held that clock begins running 

once the defendant notifies the plaintiff of the defect. See, e.g., Kurzberg v. Ashcroft, 618 F.3d 

 

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 Defendants cite Moncrief v. Stone, in which the Sixth Circuit affirmed the dismissal of a plaintiff’s complaint 

where the plaintiff served a government official and the United States Attorney General but failed to serve the 

United States Attorney for the district in which he filed his case. 961 F.2d 595, 597 (6th Cir. 1992). Moncrief, 

however, was decided in 1992—one year before Rule 4 was amended to add what is now Rule 4(i)(4). Indeed, Rule 

4(i)(4) (formerly Rule 4(i)(3)) was added in 1993 to “save[] the plaintiff from the hazard of losing a substantive right 

because of failure to comply with the complex requirements of multiple service under this subdivision.” Fed. R. 

Civ. P. 4(i) advisory committee’s note, 1993 amendments. Moncrief therefore is not controlling on this issue. 

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176, 185–86 (2d Cir. 2010); Graham v. Sequatchie Cty. Gov’t, No. 1;10-cv-20, 2011 WL 

796785, at *1–2 (E.D. Tenn. Feb. 28, 2011). 

 Without opining as to the precedential value of those cases, however, the Court finds that 

the facts of this case present a unique circumstance that warrants granting Plaintiff additional 

time to perfect service. Specifically, the Show Cause Order in this case could have been read to 

suggest that service was complete. (ECF No. 11.) It would be unfair to find that Defendants’ 

motion, filed shortly after the potentially-misleading Show Cause Order, put Plaintiff on notice 

that he needed to cure service. 

 For that reason, the Court finds that it must allow Plaintiff a reasonable time to cure his 

failure to properly serve Defendants. Plaintiff shall have an additional fourteen (14) days from 

the date of this Opinion & Order to perfect service and file proof of the same. 

 As a final note, the Court addresses Plaintiff’s request for an entry of default (ECF No. 

14) and Defendants’ opposition thereto (ECF No. 15). Because service has not been perfected, 

the Court lacks jurisdiction to adjudicate the parties’ rights, and default judgment is not 

appropriate. See, e.g., O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 348, 353 (6th Cir. 

2003). 

III. CONCLUSION 

For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss. (ECF No. 

15.) Plaintiff is hereby GRANTED an additional fourteen (14) days from the date of this 

Opinion & Order to perfect service and file proof of the same. 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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