IN	THE	UNITED	STATES	DISTRICT	COURT

FOR	THE	SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

BRENDA	E.	BALBUENA, )

)

Plaintiff,	 )

)

v.		 ) CIVIL	ACTION	NO.	14-00188-KD-C

)

JOHN	M.	McHUGH,	 Secretary	 )

Department	of	the	Army,	Agency, )

)

Defendants. )

ORDER	

On	April	25,	2014,	Brenda	E.	Balbuena	(Balbuena), an	employee	of	the	U.S.	Army	

Corps	of	Engineers,	Mobile	District,	filed	a	pro	se complaint	alleging	that	she	was	

discriminated	against	on	basis	of	“age	and	reprisal”	(doc.	1).		The	summons	were	issued	May	

1,	2014	(doc.	2).			Balbuena	sues	John	M. McHugh	in	his	official	capacity	as	Secretary	of	the	

Department	of	the	Army,	the	Department	of	the	Army	as	an	“Agency”,	and	possibly	Leo	J.	

Hickman	in	his	capacity	as	Chief	of	Contracting or	in	his	individual	capacity. 1

On	July	15,	2014,	Balbuena	filed	four	Proofs	of	Service,	which	indicate	that	she	

attempted	to	serve	defendants	McHugh,	Hickman	and	the	United	States	Attorney	General	by	

certified	mail,	return	receipt	requested.

2 There	is	no	Proof	of	Service	as	to	the	United	States	

																																																							 1			Although	Hickman	is	not	identified	in	the	caption	of	Balbuena’s	complaint,	she	identifies	

2 Rule	4(i)(2)	applies	to	service	of	an	agency	of the	United	States	such	as	the	Department	of	

the	Army	and	an	officer	or	employee	such	as	McHugh	and	Hickman	sued	in	their	official	

capacity.		The	Rule	states	as	follows:	“To	serve	a	United	States	agency	or	corporation,	or	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	agency,	corporation,	officer,	or	employee.”	Fed.	R.	Civ.	P.	4(i)(2).			To	the	

extent	that	Balbuena	sues	Hickman	in	his	individual	capacity,	Rule	4(i)(3)	provides	that	“[t]o	

serve	a	United	States	officer	or	employee	sued	in	an	individual	capacity		.	.	.	(whether	or	not	

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Attorney	for	this	district	or	as	to	the	Department	of	the	Army,	as	an	agency	of	the	United	

States.		

Balbuena signed	each	Proof	of	Service	as	the	“Server” and	listed	her	address.	

However,	Balbuena is	a	party	and	Rule	4(c)(2)	provides	that	“[a]ny	person	who	is	at	least	18	

years	old	and	not	a	party	may	serve	a	summons	and	complaint.”		Fed.	R.	Civ.	P.	4(c)(2)	

(emphasis	added).	 A similar	circumstance	was	addressed	by	the	Court	of	Appeals	for	the	

Eleventh	Circuit	in	Albra	v.	Advan, Inc., 490	F.	3d	826	(11th	Cir.	2007).		Albra,	filed	a	pro	se

complaint against	his	employer	Advan,	Inc.		He	alleged violations	of	the	Americans	with	

Disabilities	Act	and	the	Florida	Omnibus	Aids	Act.		The	return	of	service	to	Advan’s	

registered	agent	showed	Albra	as	the	process	server.		The circuit	court	explained	as	follows:	

Albra	argues	that	service	to	Advan	was	proper	because	he	mailed	a	copy	of	

the	summons	to	Advan's	registered	agent,	Wayne	Abbott,	who	was	also	

named	as	a	defendant	in	the	action.	 .	.	.	

Federal	Rule	of	Civil	Procedure	4(c)	provides	that	service	of	process	shall	be	

effected	by	serving	a	summons	“	together	with	a	copy	of	the	complaint.	...	

within	the	time	allowed	under	[Rule	4(m)]	....	by	any	person	who	is	not	a	

party	and	who	is	at	least	18	years	of	age.”	Fed.R.Civ.P.	4(c)	(emphasis	added).	

A	defendant's	actual	notice	is	not	sufficient	to	cure	defectively	executed	

service.	See	Schnabel	v.	Wells,	922	F.2d	726,	728	(11th	Cir.1991)	

(interpreting	former	Rule	4(j)),	superseded	in	part	by	rule	as	stated	in	

Horenkamp	v.	Van	Winkle	And	Co.,	Inc., 402	F.3d	1129,	1132	n.	2	(11th	Cir.

																																																																																																																																																																																				

the	officer	or	employee	is	also	sued	in	an	official	capacity),	a	party	must	serve	the	United	

States	and	also	serve	the	officer	or	employee	under	Rule	4(e),	(f),	or	(g).”		Fed.	R.	Civ.	P.	

4(i)(3).			

Thus,	in	either	instance	the	United	States	must	be	served.		To	do	so,	Balbuena	must		“(A)(i)	

deliver	a	copy	of	the	summons	and	of the	complaint	to	the	United	States	attorney	for	the	

district	where	the	action	is	brought--or	to	an	assistant	United	States	attorney	or	clerical	

employee	whom	the	United	States	attorney	designates	in	a	writing	filed	with	the	court	

clerk—or	(ii)	send	a	copy of	each	by	registered	or	certified	mail	to	the	civil-process	clerk	at	

the	United	States	attorney's	office;	[and]	(B)	send	a	copy	of	each	by	registered	or	certified	

mail	to	the	Attorney	General	of	the	United	States	at	Washington,	D.C.	.	.	.	“	Fed.	R.	Civ.	P.	

4(i)(1).		

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2005).	And	although	we	are	to	give	liberal	construction	to	the	pleadings	of	

pro	se	litigants,	“we	nevertheless	have	required	them	to	conform	to	

procedural	rules.”	Loren	v.	Sasser,	309	F.3d	1296,	1304	(11th	Cir.2002).

Here,	the	record	demonstrates	that	Albra,	the	plaintiff	in	the	suit,	served	

Advan	by	mailing	a	copy	of	the	summons	without	attaching	a	copy	of	the	

complaint.	Accordingly,	Albra	failed	to	properly	effect	service	upon	Advan	in	

accordance	with	Rule	4(c),	and	the	district	court's	grant	of	Advan's	motion	to	

dismiss	was	proper.

Id. at	828-829	(italics	in	original).			

For	purpose	of	this	decision,	the	Court	will	assume	that	Balbuena	attached	a	copy	of	

the	complaint	to	the	summons	that	she	attempted	to	serve. 3			However,	because	Balbuena	is	

the	plaintiff,	and	thus	a	party	in	the	suit,	she	failed	to	properly	effect	service	under	Rule	4(c).		

Accordingly,	the	Proofs	of	Service	are	STRICKEN.		See	also	Green	v.	Florida,	2013	WL	

5567324	(M.D.	Fla.	Oct.	9,	2013)	(citing	Fed.	R.	Civ.	P.	4(c)(2)	and	4(c)(1)	and	finding	that	the	

certificates	of	service	signed	by	plaintiff	did	not	constitute	proper	service	of	process	upon	

the	defendants). ““Read	together,	then,	Rules	4(i)(1)	and	4(c)(2)	direct	that	service	upon	the	

United	States	be	made	(1)	by	a	person	...	age	18	or	older	(2)	who	is	not	a	party	(3)	either	

through	in-person	delivery	or	sending	by	certified	mail	a	copy	of	the	summons	and	

complaint	to	both	the	Attorney	General	and	the	United	States	Attorney	for	the	judicial	

district	where	the	action	is	brought.” Lindsey	v.	United	States,	448	F.Supp.2d	37,	42	

(D.C.Cir.2006)	abrogated	on	separate	grounds,	Ramer	v.	United	States,	620	F.Supp.2d	90,	99	

(D.D.C.2009) (denying	motion	to	dismiss	for	insufficiency	of	service	of	process).	

Balbuena	is	not	excused	from	compliance	with	the	Federal	Rules	of	Civil	Procedure	

including	the	rules	that	apply	to	effecting	service upon	the	defendants.		“[B]oth	the	Supreme	

																																																							 3		Rule	4(c)(1)	states	that	“[a]	A	summons	must	be	served	with	a	copy	of	the	complaint.	The	

plaintiff	is	responsible	for	having	the	summons	and	complaint	served	within	the	time	

allowed	by	Rule	4(m)	and	must	furnish	the	necessary	copies	to	the	person	who	makes	

service.”.		

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Court	and	[the	Eleventh	Circuit]	have	concluded	that	a	defendant’s	pro	se	status	in	civil	

litigation	generally	will	not	excuse	mistakes	he	makes	regarding	procedural	rules.”	Nelson	v.	

Barden,	145	Fed.	Appx.	303,	311	n.10	(11th	Cir.	2005);	accord Local	Rule	83.9(b)(“All	

litigants	proceeding	pro	se	shall	be	bound	by	and	comply	with	all	local	rules	of	this	Court,	

and	the	Federal	Rules	of	Civil	...	Procedure,	unless	otherwise	excused	from	operation	of	the	

rules	by	court	order.”)	

However,	since	Balbuena	is	proceeding	pro	se and	has now	been	apprised	again4 of	

her	obligation	to	follow	the	Federal	Rules	of	Civil	Procedure,	the	Court	extends her	deadline	

for	service	beyond	the	120-day	period	set	forth	in	Rule	4(m)5 of	the	Federal	Rules	of	Civil	

Procedure.	Horenkamp	v.	Van	Winkle	&	Company,	Inc.,	402	F.3d	1129,	1132	(11th	Cir. 2005)

(acknowledging	that	the	district	court	has	discretion	to	extend	the	time	for	service).		

Therefore,	Balbuena	shall	arrange	service	of	the	Summons	and	Complaint	and	file	

Proofs of	Service	in	a	manner	that	complies	with	the Federal	Rules	of	Civil	Procedure,	

on	or	before	March	1,	2015.

																																																							 4 The	docket	indicates	that	Balbuena	was	given	a	copy	of	the	Pro	Se	Litigant	Guide.		As	to	

service	of	the	summons	and	complaint,	the	Guide	states	as	follows:

(2)	Service	of	Summons	and	Complaint	- Fed.R.Civ.P.	4(c)(2)	states,	“service	

may	be	effected	by	any	person	who	is	not	a	party and	who	is	at	least	18	

years	of	age.”	Using	this	method,	you	direct	someone	else	to	deliver	or	serve	

a	copy	of	the	complaint	and	summons	on	the	defendant(s).	The	most	

common	methods	for	effecting service	are	certified	mail	with	a	return	

receipt,	or	personal	service.	Private	process	servers	will	also	do	this	for	a	

fee.

Pro	Se	Litigant	Guide,	p.	5.

5 Rule	4(m)	provides	a	time	limit	for	service	of	120	days.		However	the	Court,	“on	motio	or	

on	its	own	after	notice	to	the	plaintiff	--		must	dismiss	the	action	without	prejudice	.	.	.	or	

order	that	service	be	made	within	a	specified	time.”		Fed.	R.	Civ.	P.	4(m).	

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Additionally,	Balbuena	is	warned	that	failure	to	do	so	may	result	in	dismissal	of	

this	action	without	prejudice	for	failure	to	comply	with	this	Court’s	order	and	failure	

to	comply	with	the	Federal	Rules	of	Civil	Procedure.	 See	Link	v.	Wabash	R.R.,	370	U.S.	

626,	630	31,	82	S.Ct.	1386 (1962)	(interpreting	Rule	41(b)	as	not	restricting	the	court’s	

inherent	authority	to	dismiss	sua	sponte an	action	for	lack	of	prosecution);	Mingo v.	Sugar	

Cane	Growers	Co-op, 864 F.2d	101,	102	(11th	Cir.	1989)	(“The	district	court	possesses	the	

inherent	power	to	police	its	docket[]	.	.	.	[and]	.	.	.	[i]ncident	to	this	power,	the	judge	may	

impose	formal	sanctions	upon	dilatory	litigants.	The	sanctions	imposed	can	range	from	a	

simple	reprimand	to	an	order	dismissing	the	action	with	or	without	prejudice.”)		

Done	and	ordered	the	2nd day	of	December 2014.

s/	Kristi	K.	DuBose	

KRISTI	K.	DuBOSE

UNITED	STATES	DISTRICT	JUDGE	

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