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O'HALLORAN v. UNITED STATES

April 7, 1993

DONALD O'HALLORAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: EUGENE F. LYNCH

 I. Introduction

 Plaintiff has brought suit pursuant to the Public Vessels Act, 46 U.S.C. § 781 et seq. and the Suits in Admiralty Act ["SIAA"], 46 U.S.C. § 741 et seq. On February 2, 1993, defendant moved to dismiss this complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) based on plaintiff's failure to effect timely personal service of the summons and complaint upon the United States Attorney. The Court grants defendant's motion.

 II. Background

 Plaintiff was allegedly injured on November 4, 1990 on the SS CAPE GIBSON. This vessel was owned by the United States, by and through the Maritime Administration ("MARAD") and was operated on MARAD's behalf by American President Lines ("APL") under an agency agreement. Plaintiff initially filed a complaint on March 16, 1992. O'Halloran v. United States, American President Lines, N.D. Cal., Civil No. C-92-1092 BAC. The United States advised plaintiff's counsel that the action was defective for various jurisdictional reasons, including failure to effect "forthwith service" upon the Attorney General of the United States as required by 42 U.S.C. § 742. *fn1" On October 15, 1992, plaintiff voluntarily dismissed the suit without prejudice.

 On October 26, 1992, plaintiff filed his complaint in this action making the same allegations. It appears that service was made upon the Attorney General of the United States on November 3, 1992. However, although plaintiff mailed a copy of the summons and complaint, along with a "Request for Acknowledgment of Service," to the United States Attorney's Office on approximately November 2, he apparently did not personally serve the United States Attorney at that time.

 Defendant has moved for dismissal for failure to effect personal service, relying on the law of this Circuit for the proposition that the failure to effect personal service is a jurisdictional defect. Amella v. United States, 732 F.2d 711 (9th Cir. 1984). Plaintiff opposes the motion, conceding that Amella requires the dismissal of his claim, but asking this Court to disregard the Ninth Circuit's dictates in finding that the requirements of § 742 are not jurisdictional.

 III. Discussion

 A. Forthwith Service

 The term "forthwith service" has not been precisely defined in the Ninth Circuit. We know that forthwith service is service at some point prior to the fifty-eighth day after the complaint has been filed. Owens v. United States, 541 F.2d 1386, 1388 (9th Cir. 1976), cert. denied, 430 U.S. 945, 51 L. Ed. 2d 792, 97 S. Ct. 1580 (1977) (service on 58th day was not forthwith). We also know that forthwith service is service which is "immediate, without delay, prompt, and with reasonable dispatch." Amella v. United States, 732 F.2d 711, 713 (9th Cir. 1984). However, we do not know whether forthwith service is service on the day of filing, within a week of filing, within a month of filing, or service by the fifty-seventh day after filing. The term is inherently ambiguous.

 However, despite the ambiguity of the term, it is clear that service 77 days after the filing of a complaint is not "forthwith" under the law of this Circuit.

 In Amella v. United States, 732 F.2d 711 (9th Cir. 1984), the Ninth Circuit considered a case which presented almost identical facts. In Amella, plaintiffs brought a suit in admiralty against the United States for injuries suffered while in the tow of the United States Coast Guard. Plaintiffs filed their suit within the two-year statute of limitations and served the Attorney General of the United States by registered mail within a week of filing their complaint. Plaintiffs additionally mailed a copy of the complaint and a request for an acknowledgment of service to the United States Attorney for the Northern District of California. Instead of returning the acknowledgment of service to plaintiffs, the U.S. Attorney's office wrote to plaintiffs' counsel, informing him that personal service was required, and advising him to dismiss and refile the action. Counsel did not do so, and instead made personal service 63 days after the action was filed. On a motion to dismiss by the government, the district court dismissed the action on the basis that personal service had not been forthwith. The Ninth Circuit affirmed, following a number of other Ninth Circuit cases which required dismissal of similar claims. See Kenyon v. United States, 676 F.2d 1229 (9th Cir. 1981) (service on 60th day is not forthwith); Barrie v. United States, 615 F.2d 829 (9th Cir. 1980) (service on 62nd day did not meet statutory requirement); Owens v. United States, 541 F.2d 1386, 1388 (9th Cir. 1976), cert. denied, 430 U.S. 945, 51 L. Ed. 2d 792, 97 S. Ct. 1580 (1977) (service on day 58 mandated dismissal; when the defect cannot be remedied prior to expiration of two-year statute of limitation, dismissal must be final).

 The court in Amella held that "failure to comply with the forthwith service demand of § 742 is a jurisdictional defect which denies a court subject matter jurisdiction in the controversy." Amella, 732 F.2d at 713. The Ninth Circuit agreed with the district court that personal service 63 days after the action was filed was not forthwith. Id. at 713. The Amella court considered the argument, made here by plaintiff, that service within the 120-day period mandated by Federal Rule of Civil Procedure 4(j) should be considered forthwith. However, the court rejected that argument on two grounds. First, the court found that the assumption that the Federal Rules of Civil Procedure could amend an act of congress was ...


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