UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-3269

Summary Calendar

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ROY McGINNIS,

Plaintiff-Appellant,

versus

DONNA SHALALA, M.D., Secretary 

of Health and Human Services,

Defendant-Appellee.

* * * * * * * *

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No. 92-3568

Summary Calendar

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PEGGY MUSMECI,

Plaintiff-Appellant,

versus

DONNA SHALALA, Secretary 

Department of Health and Human Services,

Defendant-Appellee.

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Appeals from the United States District Court for the

Eastern District of Louisiana

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(August 11, 1993)

 

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:
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Roy McGinnis (McGinnis), appellant in No. 92-3269, and Peggy

Musmeci (Musmeci), appellant in No. 92-3568, both filed suit

against the Secretary of Health and Human Services (the Secretary)

seeking judicial review of his denial of their claims for

disability benefits. In each case, the district court dismissed

the action under Federal Rule of Civil Procedure 4(j) for failure

to effect service of process within 120 days of the filing of the

complaint. The two cases were consolidated for appeal due to the

similarity of facts and issues of law. We affirm.

Facts and Proceedings Below

The facts of these cases are sufficiently similar that they

can be described in tandem. McGinnis and Musmeci (collectively,

appellants) filed their complaints against the Secretary on July 5

and July 17, 1991, respectively. Both were represented by counsel

Harry E. Forst. Forst sent copies of the summons and complaints by

certified mail to the United States Attorney in New Orleans, the

United States Attorney General, and the Secretary. The United

States Attorney received these service attempts on or about July

16, 1991 (McGinnis), and July 23, 1991 (Musmeci), and shortly

thereafter informed appellants by letter that their attempts at

service were defective and that he would not file an answer or

other pleading until properly served. Forst had summons reissued

in both cases on October 21, 1991, which was still within the 120-

day period, but failed to effect proper service on the United

States Attorney until December 9, 1991. On December 4, 1991, the

Secretary moved to dismiss the actions under Rule 4(j) on the

ground that more than 120 days had lapsed since appellants had
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filed their complaints. Each case was automatically referred

pursuant to local rule to a magistrate judge and thereafter

traveled a slightly different path to this Court.

The magistrate judge reviewing McGinnis' complaint filed a

report and recommendation in which she recommended that the

government's motion to dismiss be denied. The district court,

however, ordered that the government's objections to the report be

maintained and granted the government's motion. The magistrate

judge in Musmeci's case issued a finding and recommendation

recommending that the government's motion to dismiss be granted.

The district court adopted the recommendation and dismissed

Musmeci's complaint. Both McGinnis and Musmeci timely appealed

their dismissals.

Discussion

Rule 4(j) of the Federal Rules of Civil Procedure provides:

"If a service of the summons and complaint is not made

upon a defendant within 120 days after the filing of the

complaint and the party on whose behalf such service was

required cannot show good cause why such service was not

made within that period, the action shall be dismissed as

to that defendant without prejudice upon the court's own

initiative with notice to such party or upon motion."

It is undisputed in this case that appellants failed properly to

serve process within the 120-day period. Rule 4(d)(4) requires

inter alia that in suits against the United States a copy of the

summons and complaint be delivered to the United States Attorney

for the district in which the action is brought (and a copy

properly mailed to the Attorney General in Washington, D.C.).

"Service" by mail on the United States Attorney does not suffice

under Rule 4(d)(4). Prisco v. Frank, 929 F.2d 603 (11th Cir.
4

1991); McDonald v. United States, 898 F.2d 466 (5th Cir. 1990).

Thus, appellants failed properly to serve the United States

Attorney when they sent their summons and complaints by certified

mail. Appellants do not dispute this. When they finally did

effect proper service on December 9, 1991, the 120-day period had

long expired, as both suits were filed in mid-July of 1991.

Appellants argue that, because they had good cause for failing

to effect timely service of process, it was error for the district

courts to dismiss their complaints. They also argue that the

government waived any defect in service. Finally, Musmeci (only)

argues that, because the magistrate judge in her case presided as

an Article III judge under 28 U.S.C. § 636(c), the district court

lacked jurisdiction to consider a matter appealable to this Court.

Each of these arguments lacks merit. 

Under Rule 4(j), dismissal of a plaintiff's complaint is

required in the absence of a showing of good cause why service was

not timely made. Winters v. Teledyne Movible Offshore, Inc., 776

F.2d 1304, 1305 (5th Cir. 1985). In such cases, the plaintiff

bears the burden of proving good cause. Id. at 1305. We review a

district court's ruling as to the absence of good cause for abuse

of discretion only. McDonald, 898 F.2d at 468; George v. United

States Department of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986).

Appellants' counsel argues that the good cause requirement is

satisfied in this case because he acted in good faith at all times

and because he had the summons and complaints reissued before the

expiration of the 120-day period and gave them to his secretary to

serve. We cannot agree. We have said that good cause "would
* Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

Partnership, 113 S.Ct. 1489 (1993), cited by appellants in a

supplemental brief, does not alter our analysis. That case

interpreted Bankruptcy Rule 9006(b)(1), which empowers a court in

Chapter 11 proceedings to permit a creditor to file a late proof

of claim upon a showing of excusable neglect. In our view, the

mode of analysis appropriate to Rule 9006(b)(1) is not

necessarily appropriate to Rule 4(j) if only because the standard

articulated in Rule 4(j) is good cause, not excusable neglect.

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appear to require at least as much as would be required to show

excusable neglect," Winters, 776 F.2d at 1306 (original emphasis),

and that "[a]ctions falling into the category of inadvertence,

mistake or ignorance of counsel are not excusable neglect and do

not establish good cause for extending the 120 day period for

service." Traina v. United States, 911 F.2d 1155, 1157 (5th Cir.

1990); accord McDonald, 898 F.2d at 467; Winters, 776 F.2d at

1306.* We have also sustained dismissals for defective service on

grounds that the plaintiff received adequate notice of the defect.

Traina, 911 F.2d at 1157; Systems Signs Supplies v. United States

Dep't of Justice, 903 F.2d 1011, 1013-14 (5th Cir. 1990). Here,

appellants' counsel learned that his initial efforts at service of

process were defective soon after the United States Attorney

received the complaints and summons. Yet he waited months before

he had the summons reissued on October 21, 1991. Even then, he

still had three weeks to serve process, but failed to do so. That

appellants' counsel had instructed his secretary to serve the

papers upon the United States Attorney (explained as a desire to

avoid the cost of hiring a process-server) is surely not good cause

or (even) excusable neglect. The record reflects that the United

States Attorney's office in New Orleans is only a few blocks away
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from the office of appellants' counsel. The district court in

McGinnis' case ruled that his failure to effect timely service "is

attributable solely to his own neglect." The court in Musmeci's

case found "no reasonable basis" for her failure to properly serve

the United States Attorney. It was well within the discretion of

these courts to rule that appellants had not demonstrated good

cause. 

Contrary to appellants' argument, it is not determinative that

the delivery of the summons and complaints by certified mail gave

the government sufficient notice or actual knowledge of the suit.

Rule 4(j) requires service to be timely made unless good cause for

the delay is shown. It is likewise not determinative that the

government was not prejudiced by the late service. Finally, it is

not determinative that, by virtue of the applicable statutes of

limitations, appellants' suits will now be time barred. We have

rejected this argument in prior cases and must do so again now.

Traina, 911 F.2d at 1157; McDonald, 898 F.2d at 468; Winters, 776

F.2d at 1307.

Appellants also make three arguments to the effect that the

government waived the requirements of Rule 4(j). First, McGinnis

argues that, because the magistrate judge in his case issued a

briefing schedule (on July 11, 1991), the government's failure to

oppose the briefing schedule caused him to believe that it had

waived any defect in service. The briefing schedule could not have

misled McGinnis, however, because it was issued before the

insufficient service was performed. Nor was the government under

any obligation to object to a briefing order in a case in which it
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had not properly been served. Second, appellants argue that the

government waived any service defects because it did not file a

motion to dismiss or an answer raising defective service as an

affirmative defense. The government, however, is under no

obligation to take either step within the 120-day period. Indeed,

until that 120-day period has expired, any attempt to seek

dismissal on the grounds of defective service clearly would be

premature. Finally, appellants argue that the letters sent to them

by the United States Attorney's office waived Rule 4(j) because the

letters "acknowledged" receipt of the summons and complaints.

These letters cannot even arguably be read as waivers, however,

because the United States Attorney stated therein that "[i]t will

be necessary for you to serve our office pursuant to Rule 4 since

we are not authorized by the Attorney General to waive proper

service of process."

Finally, there is no merit to Musmeci's contention that the

district court lacked jurisdiction to review the decision of the

magistrate judge and therefore that the appeal from the magistrate

judge's decision should have been directly to this Court. A

magistrate judge may act in the capacity of a federal district

court under 28 U.S.C. § 636(c) only upon the express, written

consent of both parties. FED. R. CIV. P. 73(b); Archie v. Christian,

808 F.2d 1132, 1137 (5th Cir. 1987) (en banc). Musmeci argues

that, by asking the magistrate judge rather than the district court

to dismiss the case, the government consented to final disposition

by the magistrate judge. As noted, however, consent to trial by

magistrate judge must be express; we have "refused to 'infer this
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statutorily required consent from the conduct of the parties.'"

Mendes Junior Int'l Co. v. M/V SOKAI MARU, 978 F.2d 920, 922 (5th

Cir. 1992) (quoting Caprera v. Jacobs, 790 F.2d 442, 445 (5th Cir.

1986)). See also EEOC v. West Louisiana Health Servs., Inc., 959

F.2d 1277, 1281 (5th Cir. 1992) ("Consent to trial by a magistrate

under section 636(c) cannot be implied."). Accordingly, the

district court's assumption of jurisdiction was not error.

Conclusion

For the foregoing reasons, the judgments of dismissal are

AFFIRMED.