Ana Miranda Roque v. United States, 857 F.2d 20 (1st Cir. 1988). · Go Syfert
Ana Miranda Roque v. United States, 857 F.2d 20 (1st Cir. 1988). Cases Citing This Book View Copy Cite
“if the true objection is insufficient service of process, we do not think it is too much to require a litigant to plainly say so couch its true objection . . . in the garb of formalistic incantations of lack of personal jurisdiction.”
42 citation events (14 in the last 25 years) across 21 distinct courts.
Strongest positive: Elaine Petroleum Distributor, Inc., and Qingdao Xiyingmen Double Camel Tyre Co., Ltd. v. Betsy Snyder, Administratrix of the Estate of Michael Snyder (arkctapp, 2022-02-09)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Elaine Petroleum Distributor, Inc., and Qingdao Xiyingmen Double Camel Tyre Co., Ltd. v. Betsy Snyder, Administratrix of the Estate of Michael Snyder
Ark. Ct. App. · 2022 · quote attribution · 1 verbatim quote · confidence high
if the true objection is insufficient service of process, we do not think it is too much to require a litigant to plainly say so couch its true objection . . . in the garb of formalistic incantations of lack of personal jurisdiction.
discussed Cited as authority (rule) (PC) Rodriguez v. Tsui
E.D. Cal. · 2022 · confidence medium
Co., Inc., 857 F.2d 20 600, 603 (9th Cir.1988) (citations omitted)). 21 Here, plaintiff does not complain of conduct of any opposing parties or their attorneys, 22 whom plaintiff recognizes are not yet involved in this suit.
discussed Cited as authority (rule) Whitaker v. Stamping
E.D. Mich. · 2014 · confidence medium
Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir.2000) (holding that a properly raised insufficientserviee-of-proeess defense does not also preserve a lack-of-personal-jurisdietion defense because the two are separate and different); Roque v. United States, 857 F.2d 20, 22 (1st Cir.1988) (“If the true objection is insufficient service of process, we do not think it is too much to require a litigant to plainly say so[, instead of] eoueh[ing] its true objection ... in the garb of formalistic incantations of lack of personal jurisdiction____”); Hemispherx Biopharma…
discussed Cited as authority (rule) Leslie Equipment Co. v. Wood Resources Co. (2×)
W. Va. · 2009 · confidence medium
The opinion in Roque v. United States, 857 F.2d 20, 21-22 (1st Cir. 1988), addressed the concern I have as follows: Rule 12(b) distinguishes between the defenses of lack of personal jurisdiction[] and insufficient service of process. ...
discussed Cited as authority (rule) Hemispherx Biopharma, Inc. v. Johannesburg Consolidated Investments
11th Cir. · 2008 · confidence medium
See e.g., American Ass’n of Naturopathic Physi *1361 cians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir.2000) (holding that defendant waived objection to personal jurisdiction when he only raised improper service of process in his first filing to the court); Roque v. United States, 857 F.2d 20, 21-22 (1st Cir.1988) (noting that “Rule 12(b) distinguishes between the defenses of lack of personal [jurisdiction] and insufficient service of process” and that “[i]f the true objection is insufficient service of process, we do not think it is too much to require a litigant to plainly say so” ra…
discussed Cited as authority (rule) Rearden Family Trust v. Wisenbaker
Haw. · 2003 · confidence medium
See Chilicky v. Schweiker, 796 F.2d 1131, 1136 (9th Cir.1986) (concluding that appellees’ first responsive pleading, in which the only ground stated was the lack of service of process, did not preserve them objection to lack of personal jurisdiction, because “Rules 12(b)(4) and (5) were not designed to challenge personal jurisdiction allegedly obtained pursuant to a long-arm statute; rather, they were designed to challenge irregularities in the contents of the summons and irregularities in the manner of delivery of the summons and complaint”); Federal Home Loan Mortgage Corp. v. Dutch La…
cited Cited as authority (rule) Burke v. City of Boston
1st Cir. · 1999 · confidence medium
See, e.g., Libertad v. Welch, 53 F.3d 428, 440 (1st Cir. 1995); Roque v. United States, 857 F.2d 20, 22 (1st Cir. 1988).
cited Cited as authority (rule) Burke v. City of Boston
1st Cir. · 1999 · confidence medium
See, e.g., Libertad v. Welch, 53 F.3d 428, 440 (1st Cir. 1995); Roque v. United States, 857 F.2d 20, 22 (1st Cir. 1988).
discussed Cited as authority (rule) United States v. Islip
Ct. Intl. Trade · 1998 · confidence medium
In Roque v. United States, 857 F.2d 20, 22 (1st Cir.1988), the First Circuit held that “[i]f the true objection is insufficient service of process, we do not think it is too much to require a litigant to plainly say so.
discussed Cited as authority (rule) Roussell v. USA
D.N.H. · 1995 · confidence medium
Given "the simple manner in which the service deficiency can be cured, and the absence of any articulated prejudice to the government," Rogue v. United States, 857 F.2d 20, 22 (1st Cir. 1988) (per curiam), the court finds that dismissal, even without prejudice, is too harsh a sanction.4 Accord Benjamin v. Grosnick, 999 F.2d 590, 592 (1st Cir. 1993), cert, denied sub nom., Grosnick v. 4The court does note, however, the government's repeated efforts to ensure literal compliance with the dictates of Rule 4(1).
discussed Cited as authority (rule) Benjamin v. Grosnick
1st Cir. · 1993 · confidence medium
In its finding to the contrary, the district court erroneously relied on Roque v. United States, 857 F.2d 20, 22 (1st Cir. _____ ______________ 1988),5 which held that: [G]iven the [defendant's] answer which _____ did not clearly allege insufficient _________________________________________ service of process, the government's _____________________ failure plainly to assert insufficiency until after the 120 days had run, the confusion caused by the district court's ____________________ 5 Although a district court's good cause finding is entitled to great deference, such a finding "'predicated …
discussed Cited as authority (rule) Edward H. Benjamin v. Allen H. Grosnick, Peter J. Embriano v. Allen H. Grosnick
1st Cir. · 1993 · confidence medium
In its finding to the contrary, the district court erroneously relied on Roque v. United States, 857 F.2d 20, 22 (1st Cir.1988), 5 which held that: [Gjiven the [defendant’s] answer which did not clearly allege insufficient service of process, the government’s failure plainly to assert insufficiency until after the 120 days had run, the confusion caused by the district court’s initial denial of the government’s motion, the simple manner in which the service deficiency can be cured, and the absence of any articulable prejudice to the [defendant], we think the district court should have f…
discussed Cited as authority (rule) Benjamin v. Grosnick
1st Cir. · 1993 · confidence medium
In its finding to the contrary, the district court erroneously relied on Roque v. United States, 857 F.2d 20, 22 (1st Cir. 1988),5 which held that: [G]iven the [defendant's] answer which did not clearly allege insufficient service of process, the government's failure plainly to assert insufficiency until after the 120 days had run, the confusion caused by the district court's 5 Although a district court's good cause finding is entitled to great deference, such a finding "'predicated upon, or induced by, a misapprehension of law is robbed of its customary vitality.'" Reliance Steel Products v. …
cited Cited as authority (rule) Mitchell ex rel. R. Cacho & Co. v. Hobbs
1st Cir. · 1991 · confidence medium
Roque v. United States, 857 F.2d 20, 21 (1st Cir.1988); Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir.1983).
cited Cited as authority (rule) Mitchell v. Hobbs
1st Cir. · 1991 · confidence medium
Roque v. United States, 857 F.2d 20, 21 (1st Cir.1988); Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir.1983).
cited Cited as authority (rule) Joyce Zankel and Charles Zankel v. United States
2d Cir. · 1990 · signal: cf. · confidence medium
Cf. Roque v. United States, 857 F.2d 20, 22 (1st Cir.1988).
discussed Cited as authority (rule) MacCauley v. Wahlig
D. Del. · 1990 · confidence medium
See Insurance Corporation of Ireland, Ltd. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 704 , 102 S.Ct. 2099, 2105 , 72 L.Ed.2d 492 (1982) (personal jurisdiction may be stipulated to or waived by the defendant, or “a defendant may be estopped from raising the issue.”); Roque v. United States, 857 F.2d 20, 21-22 (1st Cir.1988) (defendant’s acts that do not put plaintiff on notice of a deficiency in service of process may constitute “good cause” and excuse proper service); see also Prince Manufacturing, Inc. v. Bard International Associates, Inc., 1988 WL 142407 at *1 (D.N.J.
discussed Cited "see" Harris v. Atchley
N.D. Cal. · 2022 · signal: see · confidence high
See Ruple v. City of 18 Vermillion, 714 F.2d 860, 862 (8th Cir. 1983), cert. denied, 465 U.S. 1029 (1984). 19 The Ninth Circuit addressed a nearly identical situation in Tripati v. Henman, 857 F.2d 20 1366 (9th Cir. 1988).
discussed Cited "see" DuPonte v. Coyne-Fague
D.R.I. · 2019 · signal: see · confidence high
See Roque v. United States , 857 F.2d 20 , 22 (1st Cir. 1988) (finding that insufficient service of process should not be subsumed as having been raised in answer even if answer asserted lack of personal jurisdiction or sovereign immunity because "if true objection is insufficient service of process, litigant should plainly say so.").
discussed Cited "see" Zermeno v. McDonnell Douglas Corp.
S.D. Tex. · 2003 · signal: see · confidence high
See Roque v. U.S., 857 F.2d 20, 21 (where defendant filed an answer that did not directly challenge the service of process, and then challenged service after the 120-day time period expired, the court found “good cause” to excuse plaintiffs failure to properly serve defendant).
cited Cited "see" Findings, Inc. v. LTD
1st Cir. · 1992 · signal: see · confidence high
See Roque v. United ___ _____ ______ States, 857 F.2d 20, 21 (1st Cir. 1988); Glater v. Eli Lilly & Co., ______ ______ ________________ 712 F.2d 735, 738 (1st Cir. 1983).
cited Cited "see" Precision Etchings & Findings, Inc. v. Lgp Gem, Ltd., Maurice C. Feiger, Precision Etchings & Findings, Inc. v. Lgp Gem, Ltd., Maurice C. Feiger
1st Cir. · 1992 · signal: see · confidence high
See Rogue v. United States, 857 F.2d 20, 21 (1st Cir.1988); Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir.1983).
cited Cited "see, e.g." Woods v. STATE, DEPT. OF HEALTH AND HOSPITALS
La. Ct. App. · 2008 · signal: see also · confidence medium
See also Rogue v. U.S., 857 F.2d 20, 21-22 (1st Cir.1988).
cited Cited "see, e.g." Eiden v. McCarthy
D. Conn. · 2008 · signal: see also · confidence medium
Home Loan Mortgage Corp. v. Dutch Lane Assocs., 775 F.Supp. 133, 137 (S.D.N.Y.1991); see also Roque v. United States, 857 F.2d 20, 21-22 (1st Cir.1988).
discussed Cited "see, e.g." Mitrano v. Jerry's Ford Sales
1st Cir. · 1996 · signal: see also · confidence medium
Taken together, Rule 12(h)(1)(A) & (B) require "that defendants wishing to raise [a defense of lack of personal jurisdiction] must do so in their first defensive move, be it ________________________________________ a Rule 12 motion or a responsive pleading." Glater v. Eli ______ ___ Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983); see also ___________ ___ ____ Roque v. United States, 857 F.2d 20, 21 (1st Cir. 1988) _____ _____________ (Under Rule 12(h)(1), "defense of [personal jurisdiction] is waived if not raised in the answer (or in a motion filed prior to or contemporaneously with the answe…
discussed Cited "see, e.g." Mitrano v. Jerry's Ford Sales
1st Cir. · 1996 · signal: see also · confidence medium
Taken together, Rule 12(h)(1)(A) & (B) require "that defendants wishing to raise [a defense of lack of personal jurisdiction] must do so in their first defensive move, be it a Rule 12 motion or a responsive pleading." Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir.1983); see also Roque v. United States, 857 F.2d 20, 21 (1st Cir.1988) (Under Rule 12(h)(1), "defense of [personal jurisdiction] is waived if not raised in the answer (or in a motion filed prior to or contemporaneously with the answer).") (emphasis in original). 5 In the instant case, defendant/appellee raised the defense of l…
cited Cited "see, e.g." Isabelle Carta v. Town of Fairfield, Ey Al.
1st Cir. · 1992 · signal: see also · confidence medium
Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555, 1559 (1st Cir. 1989); see also Roque v. United States, 857 F.2d 20, 21-22 (1st Cir. 1988).
discussed Cited "see, e.g." Carta v. Town of Fairfield
1st Cir. · 1992 · signal: see also · confidence medium
Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d ______________________ ____________ 1555, 1559 (1st Cir. 1989); see also Roque v. United States, ________ _____ _____________ 857 F.2d 20, 21-22 (1st Cir. 1988).
discussed Cited "see, e.g." David Floyd v. United States
7th Cir. · 1990 · signal: see also · confidence medium
This court and other courts have refused to fashion a per se rule that attorney inadvertence, when accompanied by other factors, prevents a finding of “good cause.” See id.; Del Raine v. Carlson, 826 F.2d 698, 704-05 (7th Cir.1987) (remanded for good cause determination where delay was caused in part by inadvertence); see also Roque v. United States, 857 F.2d 20, 22 (1st Cir.1988) (district court should have found good cause for plaintiff’s inadvertent failure to serve defendant within 120 days where deficiency could be cured easily and defendant did not clearly allege insufficient servi…
Retrieving the full opinion text from the archive…
Ana Miranda ROQUE, Plaintiff, Appellant,
v.
UNITED STATES of America, Defendant, Appellee
88-1509.
Court of Appeals for the First Circuit.
Sep 19, 1988.
857 F.2d 20
Fernando Cruz Tollinche, San Juan, P.R., on brief, for plaintiff, appellant., Eduardo E. Toro Font, Asst. U.S. Atty., and Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., on motion for summary affirmance, for U.S.
Bownes, Breyer, Per Curiam, Torruella.
Cited by 35 opinions  |  Published
PER CURIAM.

Plaintiff appeals from the dismissal of her action for insufficient service of process. The government moves for summary affirmance. We review the background.

Plaintiff filed a federal tort claims act action against the United States on May 6, 1986. Within a few days service was made on the United States Attorney for the District of Puerto Rico. This was insufficient service of process since Fed.R.Civ.P. 4(d)(4) provides that when the United States is sued service is to made both by delivering a copy of the summons and complaint to the United States Attorney and by sending a copy “by registered or certified mail to the Attorney General....” The latter was never done. The United States filed its answer on June 19, 1986. The answer raised as affirmative defenses “lack[] [of] jurisdiction over the person of the defendant” and “sovereign immunity,” but did not specifically point out the deficiency in service of process. On September 11, 1987, the United States filed a motion to dismiss stating that more than 120 days had passed since the filing of the complaint but that the Attorney General had not been served as required by Fed.R.Civ.P. 4(d)(4). The government argued the action should be dismissed pursuant to Fed.R.Civ.P. 4(j) which states that if service is not made within 120 days and the party fails to show good cause for the delay then the action shall be dismissed without prejudice. While the United States received back from the clerk’s office a stamped copy of its[*21] motion marked received and filed, somehow the motion was lost and did not get noted on the docket sheet or appear among the original papers. Whether plaintiff received a copy of the motion in September is not apparent. In any event, however, the 120 days had passed before the United States specifically pointed out the service deficiency.

An initial scheduling conference was held on February 11, 1987. The United States pointed out that its motion to dismiss for insufficient service of process did not appear in the record. The government was granted permission to refile the substance of its motion, which it did on February 26, 1987. At the same time, the government requested that the ad damnum in plaintiff’s complaint be reduced to $10,000, the amount she had sought in her administrative claim. On April 9, 1987 when more than 30 days had passed without plaintiff’s responding to the government’s motion, the court warned plaintiff that her action would be dismissed for lack of diligence and interest unless she responded within 10 days. The plaintiff then filed a largely inarticulate response which, generously construed, contended that the government, by failing to raise insufficient service of process when it filed its answer, had waived the defect. By order dated September 23, 1987, the court granted the government’s request to reduce the ad damnum to $10,000, but denied the request to dismiss.

A pre-trial conference was held on December 11, 1987. The government argued that plaintiff’s action should be dismissed for insufficient service of process. The court gave the government 10 days to file a motion to that effect. According to the courtroom deputy’s notes, plaintiff then pointed out that such a motion had already been filed in February 1987 and that the court in September 1987 had reduced the ad damnum, but that “the dismissal aspect apparently was not considered.” In reality, however, the court in fact had already ruled on the government’s motion to dismiss, denying it in the last sentence of the September 23, 1987 order.

The government filed another motion to dismiss for insufficient service of process on December 21, 1987, inaccurately stating that the court had failed to address the government’s earlier motion to dismiss. Plaintiff in response pointed out that the court in its September 23, 1987 order had already denied the earlier request for dismissal. This time, the court granted the government’s motion to dismiss. The court rejected plaintiff’s argument that the government had waived the insufficiency of service by filing an answer since the answer had claimed lack of personal jurisdiction and sovereign immunity. The court felt the answer, filed within the 120 days when plaintiff could have cured the service defect, had put plaintiff on notice of the service insufficiency.

On the one hand, we have little sympathy for a litigant who fails to follow the plain language of Fed.R.Civ.P. 4(d)(4). The rule is straightforward, and it has long been established that both delivery to the United States Attorney and mailing to the Attorney General is required. Messenger v. United States, 231 F.2d 328, 330 (2d Cir.1956).

On the other hand, however, the government did little to acquaint plaintiff with the service deficiency. Instead, the government’s actions seem calculated to have kept its true objection hidden until the 120 days for service had run.

Under Fed.R.Civ.P. 12(b) and 12(h)(1), the defense of insufficient service of process is waived if not raised in the answer (or in a motion filed prior to or contemporaneously with the answer). 2A Moore’s Federal Practice 12-200 (2d ed.1986); Pila v. G.R. Leasing and Rental Corporation, 551 F.2d 941, 943 (1st Cir.1977). While the government’s answer raised lack of personal jurisdiction, it did not specifically challenge the sufficiency of service. Rule 12(b) distinguishes between the defenses of lack of personal jurisdictional and insufficient service of process. In view of this distinction, normally we do not think insufficient service of process should be subsumed as having been raised in an answer’s assertion of lack of personal[*22] jurisdiction or, for that matter, sovereign immunity. See Securities and Exchange Commission v. Beisinger Industries, 552 F.2d 15, 20 (1st Cir.1977) (defense of insufficient service of process waived where the defense actually raised was not that service had not been properly made but that service was impossible because the parties were outside the jurisdiction of the court). If the true objection is insufficient service of process, we do not think it is too much to require a litigant to plainly say so. The government should not couch its true objection to the sufficiency of service in the garb of formalistic incantations of lack of personal jurisdiction or sovereign immunity. Hence, if the government were a private litigant, we would most likely conclude that the defense of insufficient service of process had been waived.

There is a further consideration, however. While the government has not expressly argued that it should be held to any different standard of waiver than other litigants, some courts have indicated that compliance with Fed.R.Civ.P. 4(d)(4)’s twofold requirement of service is a condition upon which the government’s consent to be sued depends, see Messenger v. United States, 231 F.2d 328, 332 (2d Cir.1956) (Hincks, J. concurring), a view which would complicate waiver analysis.

We think it unnecessary to decide whether we would take that view. Instead, we see the case this way. We disagree with the district court’s apparent conclusion that the government’s assertion of lack of personal jurisdiction and sovereign immunity in its answer reasonably put plaintiff on notice of the service deficiency. So far as appears from the record, plaintiff did not have notice of the government’s claim of insufficient service of process until the initial scheduling conference held on February 11, 1987. This was nine months after the action had been filed and after at least some discovery had taken place. Plaintiff thereafter claimed the government had waived the defect, an argument which was not frivolous (although it was not very well developed by plaintiff). Unfortunately, plaintiff did not then (or subsequently) either correct or offer to correct the service deficiency by mailing the appropriate papers to the Attorney General, an omission which the district court regarded as obstinate. Plaintiff, however, may have felt that correction would be futile in view of the government’s position that the action should be dismissed because the 120 days provided for service in Fed.R.Civ.P. 4(j) had long ago expired. The court initially denied the government’s motion to dismiss (on September 23, 1987) and then granted it (on March 29, 1988), chastising plaintiff for having still failed to serve the Attorney General. In view of the court’s September 23, 1987 denial of the government’s motion to dismiss, which was not conditioned on proper service being completed, cf. Bolton v. Giuffrida, 569 F.Supp. 30, 32 n. 2 (N.D.Cal.1983) (government agency not prejudiced by delay in service and hence plaintiff’s action allowed to proceed provided plaintiff filed proof of having completed service), plaintiff’s inaction, while not entirely excusable, may be somewhat understandable, however. In sum, given the government’s answer which did not clearly allege insufficient service of process, the government’s failure plainly to assert insufficiency until after the 120 days had run, the confusion caused by the district court’s initial denial of the government’s motion, the simple manner in which the service deficiency can be cured, and the absence of any articulated prejudice to the government, we think the district court should have found “good cause,” within the meaning of Fed.R.Civ.P. 4(j), to excuse the failure to complete service within 120 days and denied the government’s motion to dismiss conditioned on plaintiff’s completing service within a reasonably prompt period.

The judgment of the district court is vacated and the case is remanded for further proceedings consistent with this opinion.