Karen Dahn v. United States of America Maureen Ames and Keith Finley

Citations: 77 F.3d 492; 1996 U.S. App. LEXIS 8951; 77 A.F.T.R.2d (RIA) 96Docket: 94-4107

Court: Court of Appeals for the Tenth Circuit; February 21, 1996; Federal Appellate Court

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Unpublished opinions may now be cited if they hold persuasive value on a material issue, provided a copy is attached to the citing document or furnished to the court and parties during oral arguments, as outlined in the General Order of November 29, 1993. In the case of Karen Dahn v. United States of America, et al., the Tenth Circuit Court reviewed the dismissal of Dahn's claims against the United States due to her failure to serve the necessary documents within 120 days as required by Federal Rule of Civil Procedure 4(j). Dahn had filed her action on October 26, 1993, but only served a copy of the complaint, without a summons, to a clerk at the U.S. Attorney's office and did not mail documents to the Attorney General. The United States moved to dismiss based on improper service, and while Dahn's counsel argued compliance with 28 U.S.C. 2410, he did not address the requirements of Rule 4. The district court dismissed the case with prejudice in March 1994, which the Tenth Circuit reviewed for abuse of discretion. It noted that dismissals for failure to serve should not be with prejudice, as reflected in Rule 4(j) and the subsequent Rule 4(m) amendments that expanded district court discretion regarding service timelines. The Tenth Circuit reversed the dismissal and remanded the case for further proceedings.

In Espinoza, the court retroactively applied the 1993 amendments, emphasizing that they should be implemented to the fullest extent possible. The amendments were in effect when the government moved to dismiss for lack of proper service, and the district court ruled after they had been in force for several months. Consequently, Rule 4(m) applies to this case, as it is deemed 'just and practicable'. Under Rule 4(m), a district court must first determine if the plaintiff has shown good cause for failing to serve timely; if so, an extension must be granted. If good cause is not established, the court still has discretion to grant a permissive extension.

The district court dismissed the plaintiff's claims against the United States without assessing whether good cause existed for the delay in service and mistakenly applied Rule 4(j) instead of Rule 4(m). Therefore, the case is remanded to the district court to reconsider the dismissal in light of Rule 4(m). 

Factors guiding the court for a permissive extension include the impact of the statute of limitations on the plaintiff's claims. Although the plaintiff did not argue that the statute of limitations would bar a new action, she claimed that the government's sale of the property during the proceedings could jeopardize her ability to pursue her 2410 cause of action. She argued that since the government no longer holds a lien interest in the property, she cannot file a new action but can continue the current one because the lien was in place at the action's initiation. 

The district court must evaluate whether the plaintiff's 2410 claim would be barred if she had to refile and should also consider the complexities of serving the United States as outlined in Rule 4(i). The judgment of the United States District Court for the District of Utah is reversed, and the case is remanded for further consideration of the government's motion to dismiss under Fed. R. Civ. P. 4(m). 

The order and judgment are not binding precedent except under specific legal doctrines, and the district court’s dismissal of claims against individual defendants is not challenged on appeal. The government argues for the affirmation of the dismissal based on the complaint failing to state a claim under 28 U.S.C. 2410 and the Anti-Injunction Act, while the plaintiff contends she can amend her complaint if given the opportunity. Since the dismissal was solely for untimely service, the district court did not consider these alternative dismissal grounds, which are referred back for consideration on remand.