United States District Court, D. Minnesota
Brantely, pro se, for Plaintiff.
Blumenfield, Assistant United States Attorney, for
REPORT & RECOMMENDATION
FRANKLIN L. NOEL, UNITED STATES MAGISTRATE JUDGE.
MATTER came before the undersigned United States
Magistrate Judge on Defendant Christopher Nickrenz and
Lieutenant Bus' motion to dismiss (ECF No. 32). This
motion has been referred to the undersigned for a report and
recommendation pursuant to 28 U.S.C. § 636 and Local
Rule 72.1. For the reasons set for below, the Court
recommends that Defendants' motion be
is currently an inmate at the Federal Prison Camp in Duluth,
Minnesota. On March 23, 2016, Plaintiff filed his Complaint
raising assorted claims under 42 U.S.C. § 1983, alleging
violations of his Eighth Amendment rights. See
Compl. 4, ECF No. 1. On May 16, 2016, the Court granted
Plaintiff's application to proceed in forma
pauperis. See Order, ECF No. 7. On November 22,
2016, Defendant Dr. Benjamin Rice answered the Complaint.
See Answer, ECF No. 14. On November 29, 2016, the
Court granted the remaining Defendants', Christopher
Nickrenz and Lieutenant Bus, request that Plaintiff be given
a time extension through January 6, 2017, in which to perfect
service on them. See Order, ECF No. 16. On
December 8, 2016, Plaintiff filed a motion to compel the
address of Nickrenz and Bus to effectuate service. See
generally Mot. to Comp., ECF No. 18. On January 5, 2017,
Plaintiff supplemented his motion to compel with a letter
stating that he was attempting to obtain Nickrenz and
Bus' address to complete service through a Freedom of
Information Act request. See Letter, ECF No. 27. On
February 10, 2017, the Court denied Plaintiff's motion to
compel for failure to comply with the Federal Rules of Civil
Procedure, but provided Plaintiff an additional forty-five
days to perfect service on Nickrenz and Bus through Attorney
Kara Lund at the Federal Medical Center (“FMC”)
in Rochester, Minnesota. See Order, ECF No. 29.
the parties attempted to resolve service of process issues,
the Court referred Plaintiff's case to the Federal Bar
Association, pro se project. See Notice,
ECF No. 20. On February 21, 2017, Zorislav Leyderman, an
attorney affiliated with the pro se project,
requested an opportunity to review the case, confer with
Plaintiff, and conduct research. The Court granted
Leyderman's request, and gave him forty-five days to
decide whether he would enter an appearance on
Plaintiff's behalf. However, Leyderman ultimately did not
enter an appearance within the forty-five day period.
April 18, 2017, Defendants filed the instant motion to
dismiss Plaintiff's Complaint pursuant to Rules 12(b)(4),
12(b)(5), and 4(i)(3) of the Federal Rules of Civil
Procedure. See Mot. to Dismiss, ECF No. 32.
Specifically, Nickrenz and Bus argue that Plaintiff failed to
perfect service after receiving two forty-five day
extensions. See generally Mem. in Supp., ECF No. 33.
On April 25, 2017, Plaintiff represented that he objects to
the motion to dismiss because he thought Leyderman was acting
as his counsel and would facilitate service of process,
see Letter, ECF No. 37, and requested an additional
two weeks to perfect service on Nickrenz and Bus through
Attorney Lund. See Id. On May 1, 2017, Plaintiff
again represented that he was attempting to perfect service
on Nickrenz and Bus through Attorney Lund, see
Letter, ECF No. 39, and the Court granted Plaintiff an
additional fourteen days to perfect service, and an
additional twenty-one days to respond to Defendants'
motion to dismiss. See Order, ECF No. 40.
14, 2017, Plaintiff again objected to Defendants' motion
to dismiss, and represented that he was still experiencing
difficulties serving Nickrenz and Bus because he had not
properly completed Form USM-285 when attempting to serve
Defendants. See Letter, ECF No. 41. On August 17,
2017, Nickrenz and Bus were served through Attorney Lund at
FMC Rochester. See Summons, ECF No. 45. On August
22, 2017, Plaintiff responded to Defendants' motion to
dismiss. See Opp'n. Mem., ECF No. 46.
defendant may file a motion to dismiss pursuant to
Rules12(b)(4) and 12(b)(5) of the Federal Rules of Civil
Procedure when a plaintiff provides insufficient process or
fails to properly serve process. “The distinction
between [Rules 12(b)(4) and 12(b)(5)] is often blurred, and
it is appropriate to present and analyze service issues under
both rules.” Adams v. Allied Signal Gen. Aviation
Avionics, 74 F.3d 882, 884 n. 2 (8th Cir. 1996).
“To serve [a] United States . . . officer or employee
sued in an individual capacity for an act or omission
occurring in connection with duties performed on the United
States' behalf . . . a party must serve the United States
and . . . serve the officer or employee under Rule 4(e), (f),
or (g).” Fed.R.Civ.P. 4(i)(3). A plaintiff may also
accomplish service by following state law for serving
individuals under the law of the state in which the district
court is located or the law of the state where service is to
be made. See Fed. R. Civ. P. 4(e)(1). Properly
effected service of process is a fundamental element of any
lawsuit. See Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999). Defects in
service of process are jurisdictional in nature and if a
defendant is improperly served, a federal court lacks
jurisdiction over the defendant. See Printed Media Serv.,
Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir.
1993). However, “[d]ismissal is not invariably required
where service is ineffective: under such circumstances, the
district court has discretion to either dismiss the action,
or quash service but retain the case.” Marshall v.
Warwick, 155 F.3d 1027, 1032 (8th Cir. 1998) (citing
Haley v. Simmons, 529 F.2d 78, 78 (8th Cir. 1976)).
“[T]he core function of service is to supply notice of
the pendency of a legal action, in a manner and at a time
that affords the defendant a fair opportunity to answer the
complaint and present defenses and objections.”
Henderson v. United States, 517 U.S. 654, 672
a defendant is not served within 90 days after the complaint
is filed, the court . . . 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”
appropriately extend the service period. Fed.R.Civ.P. 4(m)
(emphasis added). “ Rule 4(m) does not define good
cause, and courts have not given conclusive meaning to the
phrase.” Kurka v. Iowa Cty., 628 F.3d 953, 957
(8th Cir. 2010). “A showing of good cause requires at
least ‘excusable neglect'-good faith and some
reasonable basis for noncompliance with the rules.”
Id. (quoting Adams, 74 F.3d at 887).
[G]ood cause is likely (but not always) to be found when[:]
 the plaintiff's failure to complete service in [a]
timely fashion is a result of the conduct of a third person,
typically the process server,  the defendant has evaded
service of the process or engaged in misleading conduct, 
the plaintiff has acted diligently in trying to effect
service or there are ...