UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MUNSEE DELAWARE INDIAN NATION and WILLIAM LITTLE SOLDIER, Plaintiffs ,

v. R. LEE FLEMMING, Director, Office of Federal Acknowledgment, Bureau of Indian Affairs, Department of the Interior, et al. , Defendants. Civil Action No. 16-2388 (RDM)

MEMORANDUM OPINION On December 7, 2016, this Court orde red Plaintiffs to show caus e on or before January 9, 2017, why their action should not be dismissed without prejudic e for failure to prosecute pursuant to Rule 4(m) of the Fed eral Rules of Civil Procedure. See Dkt. 16 at 3. The Court noted that to avoid dismissal, Pla intiffs were required to serv e Defendants in accordance with Rules 4(a), 4(c), and 4(i) with in ninety days of filing the com plaint. See id. ; see also Fed. R. Civ. P. 4(m). Ninety days elapsed on December 15, 2016. Id. On Plaintiffs’ motion for additional time, the Court extended the d eadline to respond to this initia l show cause order to February 23,
2017. See Minute Order (January 18, 2017). Plaintiffs replied on Januar y 23, 2017, but failed to address t he defects in service that had previously been iden tified by this Court. See Dkt. 18. Plaintiff William Litt le Soldier did file a document stating that he had s ent a “copy of the . . . COMPLAIN T” by “Federal Express Registered Delivery” to the Di rector of the Bureau of Indian Af fairs and the Director of the Bureau of Indian Affair’s Offi ce of Acknowledgement. Dkt. 18 a t 11. In a second show cause2 order on May 17, 2017, however, the Cour t explained that Plaint iffs’ attempt at service was not “in conformity with Rules 4(a), 4 (c), or 4(i), as the Court’s p rior order required.” Dkt. 19 at 1

. Because deficiencies in service remained, the Court ordered the Plaintiffs to show cause on or before June 16, 2017, “why this ac tion should not be dismissed without prejudice for failure to prosecute pursuant to Rule 4(m).” Id . at 2. Furthermore, Plaintiffs were to “demonstrate whether ‘good cause’ exist[ed] for their failure timely to effe ct service, and whether equitable factors support[ed] granting t hem an extension of time to do so .” Id

. Plaintiffs suggest that they have satisfied the requirements of Rule 4(c)(2), arguing that use of Federal Express constitutes service by a non-party, and that they have satisfied the requirements of Rule 4(i), argui ng that Federal Express constit utes a private “mail” service. See Dkt. 21. But, even if Plaintiffs were correct about both of th ese contentions, cf. Ilaw v. Dep’t of
Justice , 309 F.R.D. 101, 105 (D.D.C. 2015) ( describing as an open ques tion circumstances in which use of Federal Express can constitute proper service), it remains clear that they have failed to effect service in the prescri bed manner. As Rule 4(i) provi des, a plaintiff seeking to sue an agency of the United States must serve a designated recipient w ithin the office of the “United States attorney for the district where the action is brought,” “the Attorney General of the United States at Washington, D.C.,” and t he agency named in the suit. Fed. R. Civ. P. 4(i); see also Koerner v. United States, 246 F.R.D. 45, 48 (D.D.C. 2007). Here, Plaintiffs have only at tempted to serve the Director of the Bur eau of Indian Affairs and the D irector of the Office of Acknowledgment. Dkt. 18 at 11. T hey have not attempted to ser ve the U.S. Attorney, the Attorney General, or the Department of the Interior. Plaintiffs have also failed to i dentify “good cause” for the fa ilure to effect service in compliance with Rule 4(i), because “[g]ood cause exists when so me outside factor[,] rather than3 inadvertence or negligence , prevented service.” Mann v. Castiel , 681 F.3d 368, 374 (D.C. Cir. 2012) (emphasis added) (alterati on, citation, and internal quot ation marks omitted). Without proof of good cause, the Court may c onsider equitable factors a nd either dismiss the case or extend the time for e ffecting service. See id. at 375−76. “[D]ismissal of a case pursuant to Rule 4(m) is appropriate when the plai ntiff’s failure to effect prop er service is the result of inadvertence, oversight, or negl ect, and dismissal leaves the p laintiff in the same position as if the action had never been filed.” Id. at 376 (citations and internal quot ation marks omitted). Service is now nearly a year ove rdue. The Court has extended P laintiffs’ deadline by which to effect service three ti mes. The continued failure to comply with the requirements of Rule 4(i) can be attributed sol ely to the “inadvertence, oversi ght, or neglect” of the Plaintiffs.
See Fed. R. Civ. P. 4(m). Such a dismi ssal “leaves the [Plaintiffs ] in the same position as if the action had never been filed.” Id. The Court will, accordingly, DISMISS this action without prejudi ce. A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: November 9, 2017