At page 80 “obliged to raise questions of the district court's subject-matter jurisdiction sua sponte.”33 citing cases
- Frey, No. 4:24-cv-00582 (D. Idaho Mar. 17, 2026).Good cause, at a minimum, means excusable neglect, and that, to establish good cause, a plaintiff may also be required to show “(a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no…
- Herrera 152559 v. Unknown Party, No. 2:24-cv-00413 (D. Ariz. Sept. 23, 2024).Further, a plaintiff may “be required to show the following: (a) the party to be 1 served personally received actual notice of the lawsuit; (b) the defendant would suffer no 2 prejudice; and (c) plaintiff would be severely prejudiced if hi…
- Dimitrov v. Stavatti Aerospace Ltd., No. 2:23-cv-00226 (D. Ariz. Oct. 12, 2023).A district court may also consider 23 whether the plaintiff has established the following: “(a) the party to be served personally 24 received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) 25 plaintiff w…
- (PS)Laipply v. Laipply, No. 2:21-cv-01905 (E.D. Cal. May 2, 2022).The Ninth Circuit 7 held: 8 [A] plaintiff may be required to show the following factors in order to bring the excuse to the level of good cause: “(a) the party to be 9 served received actual notice of the lawsuit; (b) the defendant would s…
- Smith v. Hambro, No. 1:19-cv-00117 (D. Mont. June 19, 2020).The circuit has also considered whether “there is a justifiable excuse for a failure to serve properly.” Hart v. U.S., 817 F.2d 78, 80 (9th Cir. 1987).
- Andre Lesgras v. Aetna Life Ins., 786 F.3d 1233 (9th Cir. 2015). (holding that where the last day of the six-month limitations period under the Federal Tort Claims Act ended on a Saturday, the plaintiff could file on the following Monday)
- Almont Ambulatory Surgery Ctr., LLC v. UnitedHealth Grp., Inc., 99 F. Supp. 3d 1110 (C.D. Cal. 2015).A showing of good cause under Rule 4(m) means, “[a]t a minimum. ... ‘excusable neglect,’ ” and may also require a showing of the following three factors: “(a) the party to be served personally received actual notice of the lawsuit; (b) the…
- Mader v. United States, 619 F.3d 996 (8th Cir. 2010). See, e.g., Maahs v. United States, 840 F.2d 863, 866-67 (11th Cir.1988); Hart v. United States, 817 F.2d 78, 80 (9th Cir.1987) (per curiam); Frey v. Woodard, 748 F.2d 173, 175 (3d Cir.1984).
- Munoz v. England, 557 F. Supp. 2d 1145 (D. Haw. 2008).See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 593 , 124 S.Ct. 1920 , 158 L.Ed.2d 866 (2004) (“[I]t is the obligation of both district court and counsel to be alert to jurisdictional requirements.”); Williams v. United Airli…
- Williams v. United Airlines, Inc., 500 F.3d 1019 (9th Cir. 2007).Nonetheless, we are “obliged to raise questions of the district court’s subject-matter jurisdiction sua sponte.” Hart v. United, States, 817 F.2d 78, 80 (9th Cir.1987); see also Ins.
Show 23 more citing cases
- Payan v. Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119 (9th Cir. 2007).(applying Rule 6(a) to a claim brought under the Federal Tort Claims Act)
- Payan v. Aramark Mgmt., No. 05-15978 (9th Cir. Aug. 1, 2007).(applying Rule 6(a) to a claim brought under the Federal Tort Claims Act)
- Cranford v. United States, 359 F. Supp. 2d 981 (E.D. Cal. 2005).R.Civ.P. 4(m); Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.1987).
- In Re: Michael W. Sheehan Wilhelmina Sheehan, Debtors. Yoji Oyama v. Michael W. Sheehan Wilhelmina Sheehan, 253 F.3d 507 (9th Cir. 2001). In Boudette , we stated that a plaintiff may be required to show the following factors in order to bring the excuse to the level of good cause: "(a) the party to be served received actual notice of the lawsuit; (b) the defendant would suff…
- In Re: Thomas A. Greene, AKA Radiator Serv., Inc., & Bobby Jean Greene, Debtors. Mbna Am. v. Jeffry G. Locke, Tr., 223 F.3d 1064 (9th Cir. 2000). See In re Victoria Station Inc., 840 F.2d 682, 684 (9th Cir. 1988); Hart v. United States, 817 F.2d 78, 80 (9th Cir. 1987); In re Hill, 811 F.2d 484 (9th Cir. 1986); Bartlik v. U.S. Dep't of Labor, 62 F.3d 163, 166 (6th Cir. 1995); see als…
- Boltes v. Entex, 158 F.R.D. 110 (S.D. Tex. 1994).Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.1991); Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.1987).
- McLamb v. United States Dep't of Treasury, 858 F. Supp. 1042 (S.D. Cal. 1994).Hart v. United States, 817 F.2d 78, 80 (9th Cir.1987).
- Hanif Nassor Covington v. United States of Am. Fluor Daniel, Inc., 8 F.3d 26 (9th Cir. 1993). Hart v. United States, 817 F.2d 78, 80 (9th Cir.1987).
- Wood-Ivey Sys. Corp. v. United States, 4 F.3d 961 (Fed. Cir. 1993). (Rule 6(a) applies to time for filing tort claim against the United States and the district court properly had jurisdiction)
- Boatman v. Furnia (In re Sutera), 157 B.R. 519 (Bankr. D. Conn. 1993).See also United Mine Workers of America, International Union v. Dole, 870 F.2d 662, 665 (D.C.Cir.1989) (rejecting Butcher and approving Frey — “we decline to follow the analysis of the Sixth Circuit ... which reasons that applications of t…
- Matter of Sutera, 157 B.R. 519 (Bankr. D. Conn. 1993).See also United Mine Workers of America, International Union v. Dole, 870 F.2d 662, 665 (D.C.Cir. 1989) (rejecting Butcher and approving Frey — "we decline to follow the analysis of the Sixth Circuit . . . which reasons that applications o…
- Antonio Untal Cecilia Untal v. United States, 990 F.2d 1266 (9th Cir. 1993).We review for an abuse of discretion, Hart v. United States, 817 F.2d 78, 80 (9th Cir.1987), and we affirm. 3 Service upon the United States is made by (1) delivering a copy of the summons and complaint to the United States Attorney for th…
- Steve Moten v. Louis W. Sullivan, M.D., 974 F.2d 1342 (9th Cir. 1992).We have jurisdiction under 28 U.S.C. § 1291 and affirm. 3 "When a party has failed to comply with the requirements of service within the requisite time period, we review the district court's dismissal for an abuse of discretion." Hart v. U…
- Ali T. Agha v. Dep't of the Army United States Dep't of Just. Equal Emp. Opportunity Comm'n, 959 F.2d 239 (9th Cir. 1992). We have jurisdiction under 28 U.S.C. § 1291 and affirm. 1 3 "When a party has failed to comply with the requirements of service within the requisite time period, we review the district court's dismissal for abuse of discretion." Hart v. Un…
- McKeown v. Sullivan, 139 F.R.D. 667 (D. Alaska 1991).Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.1987).
- Eric David Boudette v. John Barnette, Police Officer James Vaughn, Police Officer, 923 F.2d 754 (9th Cir. 1991). Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.1987).
- Downs v. Kenyon, 844 F.2d 791 (9th Cir. 1988).Although we ordinarily review dismissals for an abuse of discretion, see Hart v. United States, 817 F.2d 78, 80 (CA9 1987) (per curiam), dismissals for want of personal jurisdiction are reviewed de novo.
- Sylvia P. Fimbres Abel Fimbres Frank Armijo, Sr. v. United States, 833 F.2d 138 (9th Cir. 1987). Hart v. United States, 817 F.2d 78, 80 (9th Cir.1987).
- Hawaii Cent. Fed. Credit Union v. Kealoha, No. 1:18-cv-00108 (D. Haw. July 31, 2019).See Williams v. United Airlines, Inc., 500 F.3d 1019, 1021 (9th Cir. 2007) (“[W]e are ‘obliged to raise questions of the district court’s subject-matter jurisdiction sua sponte.’” (some citations omitted) (quoting Hart v. United States, 81…
- Janossy v. Gen. Motors Acceptance Corp., 32 F. App'x 429 (9th Cir. 2002).See Hart v. United States, 817 F.2d 78, 80 (9th Cir.1987) (per curiam).
- Daniel Lentz v. United States, 10 F.3d 808 (9th Cir. 1993).See Hart v. United States, 817 F.2d 78, 80 (9th Cir.1987). 13 We AFFIRM. * This panel unanimously agrees that this case is appropriate for submission without oral argument.
- Vivi K. Hansen v. Sec'y of Health & Human Servs., 972 F.2d 1339 (9th Cir. 1992).See Hart v. United States, 817 F.2d 78, 80 (9th Cir.1985). 4 Rule 4(j) provides that an action against a defendant shall be dismissed without prejudice if that defendant is not served with a copy of the summons and complaint within 120 day…
- Mel M. Marin v. Brigham Young Univ., & Does 1-Xx Inclusive, 959 F.2d 240 (9th Cir. 1992).See Hart v. United States, 817 F.2d 78, 80 (9th Cir.1985). 4 Rule 4(j) provides that an action against a defendant shall be dismissed without prejudice if that defendant is not served with a copy of the summons and complaint within 120 day…
At page 81 holding that secretarial negligence in serving defendant is chargeable to counsel12 citing cases
- Frias v. Patenaude & Felix APC, No. 2:20-cv-00805 (W.D. Wash. Jan. 14, 2022).(Secretarial negligence, if it exists, is chargeable to counsel.)
- Anthony v. United States, No. 3:19-cv-05337 (W.D. Wash. Sept. 8, 2021).(Secretarial negligence, if it exists, is chargeable to counsel.)
- Vandeven v. Wyndham Vacation Resorts, Inc., No. 2:20-cv-00056 (M.D. Tenn. Nov. 29, 2021).(holding that secretarial negligence in serving defendant is chargeable to counsel)
- Brown v. Smith, No. 96-2723 (4th Cir. Aug. 5, 1997).Hart v. United States, 817 F.2d 78, 81 (9th Cir. 1987).
- Dorinda Hicks v. United States Post Off., 83 F.3d 427 (9th Cir. 1996). Hart v. United States, 817 F.2d 78, 81 (9th Cir.1987). 4 Federal Rule of Civil Procedure 4(i) requires that a party bringing an action against the United States or its agencies, corporations or officers must effect service on the United St…
- Rosa Zamora v. Internal Revenue Serv., 15 F.3d 1095 (9th Cir. 1993).Hart v. United States, 817 F.2d 78, 81 (9th Cir.1987). 4 Rule 12(b)(5) allows a defendant to move to dismiss the action where the service of process of a summons and complaint is insufficient.
- Sandra E. Davis v. Nicholas F. Brady, Sec'y of the United States Dep't of the Treasury United States Equal Emp. Opportunity Comm'n, 9 F.3d 107 (6th Cir. 1993).(cited with approval in Friedman, 929 F.2d at 1157)
- Friedman v. Est. Of, 929 F.2d 1151 (6th Cir. 1991).(secretarial negligence in serving defendant is chargeable to counsel)
- Friedman v. Est. of Presser, 929 F.2d 1151 (6th Cir. 1991).(secretarial negligence in serving defendant is chargeable to counsel)
- Rangel v. Cnty. of San Joaquin, 855 F.2d 862 (9th Cir. 1988).Fimbres v. United States, 833 F.2d 138, 139 (9th Cir.1987); Hart v. United States, 817 F.2d 78, 81 (9th Cir.1987). 10 AFFIRMED. * The panel finds this case appropriate for submission without oral argument pursuant to Fed.R.App.P. 34(a) and…
Show 2 more citing cases
- Andrea Geiger v. Donald Allen, 850 F.2d 330 (7th Cir. 1988).See, e.g., Lovelace, 820 F.2d at 84 ; Hart v. United States, 817 F.2d 78, 81 (9th Cir.1987); Braxton, 817 F.2d at 241 ; Winters, 776 F.2d at 1306 ; Wei, 763 F.2d at 372 .
- Navonne v. Action Watersports of Tahoe, No. 2:20-cv-01351 (E.D. Cal. Jan. 18, 2024).See Hart v. 24 United States, 817 F.2d 78, 81 (9th Cir. 1987). 25 d.
At page 79 cited at this page2 citing cases
- Elec. Specialty Co. v. Road & Ranch Supply, Inc. Arlen J. Bolls, AKA A.J. Bolls, 967 F.2d 309 (9th Cir. 1992).Hart v. United States, 817 F.2d 78, 79 (9th Cir.1987).
- Violet M. Maahs, & Alfred J. Maahs, Her Husband v. United States, 840 F.2d 863 (11th Cir. 1988).See Vernell, 819 F.2d at 111 n. 6 (5th Cir.); Hart v. United States, 817 F.2d 78, 79 (9th Cir.1987); Frey v. Woodard, 748 F.2d 173, 175 (3d Cir.1984); Tribue, 826 F.2d at 635 (7th Cir.). 9 Because we hold that Rule 6(a) applies m this case…
Other citing cases
- Scott, No. 3:25-cv-08126 (D. Ariz. Apr. 13, 2026).
- Cota v. Carrows Restaurants, LLC, No. 3:20-cv-01428 (S.D. Cal. June 13, 2022).
v.
UNITED STATES of America, Defendant-Appellee
Ira L. Hart appeals the district court’s dismissal of his action under the Federal Tort Claims Act. The district court dismissed Hart’s action for failure properly to serve the United States within the 120 days of filing his complaint prescribed by Fed.R.Civ.P. 4(5). The district court did not abuse its discretion in finding that Hart did not have good cause for the failure to serve, and we affirm.
I
Ira L. Hart slipped and fell while he was a patient at the Veterans’ Administration Hospital in Loma Linda, California. He filed an administrative claim with the Veteran’s Administration District Counsel. The claim was denied on May 31, 1985. Hart and his wife filed a complaint in the district court against the United States on December 2, 1985. The complaint charged the hospital with malpractice and maintenance of dangerous premises causing injury to Hart and loss of consortium to his wife.
The Harts failed properly to serve the government as required by Fed.R.Civ.P. 4(d)(4). The district court dismissed the Harts’ action, and Mr. Hart timely appeals. [1]
II
This court reviews de novo a district court’s subject-matter jurisdiction. See [*80] Anderson ex rel. Anderson v. United States, 803 F.2d 1520, 1522 (9th Cir.1986). When a party has failed to comply with the requirements of service within the requisite time period, we review the district court’s dismissal for abuse of discretion. See Wei v. State of Hawaii, 763 F.2d 370 (9th Cir.1985) (per curiam).
III
We are obliged to raise questions of the district court’s subject-matter jurisdiction sua sponte. Continental Ins. Co. v. Cotten, 427 F.2d 48, 51 (9th Cir.1970). Hart’s administrative claim was denied on May 31, 1985. His action in the district court was not filed until December 2, 1985, apparently beyond the six-month statute of limitation for such claims. See 28 U.S.C. § 2401(b). Although the issue was not raised by the parties or the district court, we must address it before we may reach the issue of service.
The six-month statute of limitations expired on November 30,1985, which fell on a Saturday. Fed.R.Civ.P. 6(a) provides, however, that in computing the time allowed under “any applicable statute,” when the final day falls on a Saturday, Sunday, or legal holiday, the time period extends to the first day following those days. Thus, Hart had until December 2,1985, to file his case, and the district court properly had jurisdiction. See Frey v. Woodard, 748 F.2d 173, 175 (3d Cir.1984) (holding that Rule 6(a) tolled the two-year statute of limitation for filing a complaint with the administrative agency). [2] The complaint was timely filed, and the district court had jurisdiction.
IV
The district court dismissed the case because Hart failed to serve the United States within the 120-day time limit imposed by Fed.R.Civ.P. 4(j). Hart concedes that he failed in any manner to serve the Attorney General as required by Fed.R.Civ.P. 4(d)(4), and that he failed properly to serve the United States Attorney for the Central District. Hart contends that failure to serve the government was justified by good cause.
Hart’s counsel attempted to serve the United States Attorney by sending a copy of the complaint without a copy of the summons. Hart’s counsel never complied with Rule 4(d)(4)’s requirement that service also be completed upon the Attorney General. The United States Attorney’s office went so far as to inform Hart’s counsel that service was inadequate and suggested the proper method to effect service. After the passing of the 120-day period and receiving no response from Hart’s counsel, the government moved the district court to dismiss the case, and the district court granted the motion.
Hart argues that his failure to serve the government is justified under the standards enunciated in Borzeka v. Heckler, 739 F.2d 444 (9th Cir.1984). In Borzeka, we held that a plaintiff’s failure to comply with the technical requirements for personal service under Rule 4(d)(4) does not warrant dismissal where “(a) the party that had to be served personally received actual notice, (b) the defendant would suffer no prejudice from the defect in service, (c) there is a justifiable excuse for a failure to serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were dismissed.” Borzeka, 739 F.2d at 447. In Borzeka, a pro se litigant claimed to have received improper advice from the district court regarding service, and this[*81] third-party error served as justifiable excuse.
Hart, at a minimum, has no justifiable excuse for his failure to serve, and thus cannot justify failure to serve under Borzeka. Hart’s counsel attempts to excuse the failure by blaming a secretary who allegedly was told to mail both the complaint and summons, although only the complaint was mailed. Hart’s counsel claims that failure to serve the Attorney General also was due to secretarial misdeeds. Secretarial negligence, if it exists, is chargeable to counsel. See Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1983) (en banc). Thus, these claims at best resolve to inadvertent error, which is not good cause. Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (per curiam). That Hart’s claim is now time-barred does not suffice to waive the requirement of service. See id. The district court thus did not abuse its discretion in dismissing the case for failure to serve the government.
AFFIRMED.
. Mrs. Hart does not challenge the dismissal of cause of action due to her failure to file an administrative claim.
. Our decision in Hatchell v. United States, 776 F.2d 244 (9th Cir.1985), is not to the contrary. In Hatchell, we found that Fed.R.Civ.P. 6(e) does not extend the time allowed for filing suit against the government under 28 U.S.C. § 2401(b). See 776 F.2d at 246. Rule 6(e) provides for an extension of time for acts conditioned upon service of notice when service is made by mail. Since the statute of limitations under 28 U.S.C. § 2401(b) commences running upon "the date of mailing" and is not conditioned upon the service of notice, we held that Rule 6(e) was inapplicable to 28 U.S.C. § 2401(b). 776 F.2d at 286. Rule 6(a) is not so limited, however, and applies to “any period of time prescribed or allowed ... by any applicable statute.” It thus operates to allow additional time when the statute would otherwise run on a weekend or legal holiday.