United States District Court, D. Nevada
before the court is respondent United States Citizenship and
Immigration Service's (“USCIS”) motion to
dismiss Jingyi Wen's petition for judicial review of
USCIS's denial of her N-400 application for
naturalization. (ECF No. 12). Petitioner filed a response
(ECF No. 13), and respondent filed a reply (ECF No. 14).
November 17, 2015, Wen filed her petition for review. (ECF
No. 1). On November 18, 2015, she reportedly served the
Department of Homeland Security at its Washington, D.C.
office and USCIS's Las Vegas field office. (ECF No. 4-1).
On February 24, 2016, petitioner filed a motion for default
judgment for respondent's failure to answer or
appear. On February 29, 2016, USCIS filed a
response to that motion, indicating that:
To complete service of process on the United States
government, or an agency of the United States government, a
petitioner must complete specific acts of service of the
summons and complaint upon the concerned agency head, the
Office of the Attorney General of the United States in
Washington, D.C., and the local United States Attorney's
(ECF No. 7 at 2) (emphasis in original) (citing Fed.R.Civ.P.
4(i)). Additionally, defendant noted that “[t]he United
States Attorney's Office in Las Vegas, among
others, was not served-and, to date, still has not been
served.” (Id.) (emphasis added).
7, 2016, this court denied petitioner's motion, noted
that the motion was premature because petitioner had not
“s[ought] clerk's entry of default before
requesting the court to enter a default judgment, ” and
ordered petitioner to serve process upon the United States
attorney's office in Las Vegas-thereby addressing the
focus of respondent's opposition and petitioner's
reply regarding her failure to serve the same. (ECF No. 10 at
1 n.1, 3); see (ECF No. 9); see also (ECF
No. 7) (citing Rule 12(a)(2) and asserting that: “the
‘United States, a United States agency, or a United
States officer or employee sued only in an official capacity
must serve an answer to a complaint, counterclaim, or
crossclaim within 60 days after service on the United
States attorney.'” (emphasis in
18, 2016, petitioner filed a notice of proof of service on
the United States attorney's office. (ECF No. 11). The
same day, respondent filed the instant motion to dismiss.
(ECF No. 12). USCIS argues that dismissal of the petition is
appropriate under Federal Rules of Civil Procedure 12(b)(5)
and 12(b)(6) because petitioner has failed to serve process
on the United States attorney general within 90 days, as
required by rule 4(i)(1)(B) and rule 4(m), without good cause
and because petitioner was ineligible for naturalization
because of alleged unlawful acts. (Id.).
responded that she had complied with this court's July 7,
2016, order denying her motion for default judgment as
premature and providing seven days to serve process on the
United States attorney's office. (ECF No. 13). Petitioner
further states that, because this court did not order action
regarding the attorney general, she should avoid dismissal
or-over eight months after Wen filed the petition for
review-should be granted additional leave to file service on
the attorney general. (Id.).
12(b)(5) allows a defendant to attack a claim for relief on
the basis of “insufficient service of process.”
Indeed, “[a] federal court does not have jurisdiction
over a defendant unless the defendant has been served
properly under [rule] 4.” Direct Mail Specialists
v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688
(9th Cir. 1988); see also Murphy Bros., Inc. v. Mitchell
Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Where
the validity of service is contested, the burden is on the
party claiming proper service to establish its validity.
Cranford v. United States, 359 F.Supp.2d 981, 984
(E.D. Cal. 2005) (citing Grand Entm't Grp., Ltd. v.
Star Media Sales, Inc., 988 F.2d 476, 488 (3d
Cir. 1993)). Assuming insufficiency of process or
insufficiency of service of process, the court has discretion
to dismiss an action or simply quash service. See,
e.g., SHJ v. Issaquah Sch. Dist. No. 411, 470 F.3d
1288, 1293 (9th Cir. 2006) (citing Stevens v. Security
Pac. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976)
(“The choice between dismissal and quashing service of
process is in the district court's discretion.”)).
Ninth Circuit adopted the District of Columbia Circuit's
standard for assessing whether a district court may dismiss
an action for deficient service of process “upon an
officer or agency of the United States” in Borzeka
v. Heckler, 739 F.2d 444, 446-47 (9th Cir. 1984).
See also Jordan v. United States, 694 F.2d 833, 836
(D.C. Cir. 1982). There, the Ninth Circuit instructed that a
district court should consider whether: (1) the defendant has
actual notice of the suit; (2) “the defendant would
suffer no prejudice from the defect in service”; (3) a
“justifiable excuse” exists for noncompliance
with the applicable rule of service; and (4) dismissal would
result in “severe prejudice” for the
petitioner if the petition was dismissed. Borzeka,
739 F.2d at 447-48. That court also indicated that, when
applicable, a district court should examine a party's
pro se status and whether a litigant was aware of
its defect in service. See Id. at 447 n.2.
court notes that the respondent has actual notice of the suit
and that it has not indicated any reason why it would suffer
prejudice. (ECF Nos. 7, 12, 14). However, the remaining
factors weigh in favor of dismissal.
petitioner is not a pro se litigant entitled to some
lenience in her initiation of litigation; she has been
represented by counsel since this suit's inception.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
see also (ECF No. 1). Second, petitioner was on
notice of her failure to comply with its service
requirements; USCIS's response to petitioner's
premature motion for default judgment specifically
articulated the applicable pleading requirements in the
present case and indicated that entities other than the
United States attorney's office remained unserved. (ECF
No. 7). Thus, petitioner was on notice that more
investigation and action was required. See
(id.). Next, there is no justifiable excuse here for
the failure to comply with the rules of service, and
petitioner has not indicated that she would be subject to
severe prejudice if the instant action was dismissed.
See (ECF No. 13).
issue illustrates petitioner's third notable violation of
the Federal Rules of Civil Procedure in this case.
See (ECF Nos. 10-12). Further, this court has
already allowed petitioner to correct one error of service.
(ECF No. 10). Finally, petitioner cannot delegate to this
court her responsibility to comply with the Federal Rules of
Civil Procedure. See, e.g., United States v. Gavilan
Joint Cmty. Coll. Dist, 849 F.2d 1246, 1251 (9th Cir.
1988); see also Fed. R. Civ. P. 4(c)(1) (“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.”); (ECF No. 13).
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
defendant's motion to dismiss (ECF No. 12) be, and the