Kurzberg v. Ashcroft , 619 F.3d 176 ( 2010 )


Menu:
  •      07-0542-cv
    Kurzberg v. Ashcroft
    1                           UNITED STATES COURT OF APPEALS
    2                               FOR THE SECOND CIRCUIT
    3                                 August Term, 2009
    4    (Argued: November 17, 2009                   Decided: August 30, 2010)
    5                               Docket No. 07-0542-cv
    6                    -------------------------------------
    7        SILVAN KURZBERG, PAUL KURZBERG, YARON SHMUEL, OMER GAVRIEL
    8                          MARMARI, ODED OZ ELNER,
    9                               Plaintiffs-Appellants,
    10                                      - v. -
    11       JOHN ASHCROFT, FORMER ATTORNEY GENERAL OF THE UNITED STATES,
    12        JAMES W. ZIGLAR, FORMER COMMISSIONER OF THE IMMIGRATION AND
    13         NATURALIZATION SERVICE, MICHAEL ZENK, FORMER WARDEN OF THE
    14   METROPOLITAN DETENTION CENTER, DENNIS HASTY, FORMER WARDEN OF THE
    15   METROPOLITAN DETENTION CENTER, JORDAN, BELIEVED TO BE AN EMPLOYEE
    16    OF THE FEDERAL BUREAU OF PRISONS, WHOSE TRUE FIRST NAME AND LAST
    17     NAME ARE UNKNOWN TO THE PLAINTIFFS, WHO BELIEVE THEY HEARD HIM
    18         CALLED JORDAN, MARIO MACHADO, WILLIAM BECK, RICHARD DIAZ,
    19        SALVATORE LOPRESTI, STEVEN BARRERE, MICHAEL DEFRANCISCO AND
    20      CHRISTOPHER WITSCHEL, BELIEVED TO BE EMPLOYEES OF THE FEDERAL
    21    BUREAU OF PRISONS, C. SHACKS, MOSCHELLO, NORMAN, HOSAIN, MOUNBO,
    22        M. ROBINSON AND TORRES, FIRST NAMES UNKNOWN, BELIEVED TO BE
    23        EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS, RAYMOND COTTON,
    24      COUNSELOR BELIEVED TO BE AN EMPLOYEE OF THE FEDERAL BUREAU OF
    25                            PRISONS, KEVIN LOPEZ,
    26                   Defendants-Cross-Defendants-Appellees,
    27   F. JOHNSON, FIRST NAME UNKNOWN, BELIEVED TO BE AN EMPLOYEE OF THE
    28                       FEDERAL BUREAU OF PRISONS,
    29            Defendant-Cross-Claimant-Cross-Defendant-Appellee,
    30     BIRAR, BUCK, T. CUSH, GUSS, D. ORTIZ, J., PEREZ, LIEUTENANTS,
    31      FIRST NAMES UNKNOWN, BELIEVED TO BE EMPLOYEES OF THE FEDERAL
    32   BUREAU OF PRISONS, JOHN DOES 1-30, METROPOLITAN DETENTION CENTER
    33    CORRECTIONS OFFICERS, "JOHN DOE" BEING FICTIONAL FIRST AND LAST
    34          NAMES, INTENDED TO BE THE CORRECTIONS OFFICERS AT THE
    35       METROPOLITAN DETENTION CENTER WHO ABUSED THE PLAINTIFFS AND
    1         VIOLATED THEIR RIGHTS, JOHN ROES 1-30, FEDERAL BUREAU OF
    2     IMMIGRATION AND NATURALIZATION SERVICE AGENTS, "JOHN ROE" BEING
    3     FICTIONAL FIRST AND LAST NAMES, INTENDED TO BE THE CORRECTIONS
    4       OFFICERS AT THE METROPOLITAN DETENTION CENTER WHO ABUSED THE
    5                   PLAINTIFFS AND VIOLATED THEIR RIGHTS,
    6                               Defendants,
    7     DR. LORENZO, FIRST NAME UNKNOWN, BELIEVED TO BE AN EMPLOYEE OF
    8        THE FEDERAL BUREAU OF PRISONS, J. MIELES AND JON OSTEEN,
    9                      Defendants-Cross-Defendants,
    10        LINDA THOMAS, FORMER ASSOCIATE WARD OF PROGRAMS OF THE
    11    METROPOLITAN DETENTION CENTER, ROBERT MUELLER, DIRECTOR OF THE
    12    FEDERAL BUREAU OF INVESTIGATION, KEVIN LOPEZ, BELIEVED TO BE AN
    13   EMPLOYEE OF THE FEDERAL BUREAU OF PRISONS, KATHLEEN HAWK, FORMER
    14               DIRECTOR OF THE FEDERAL BUREAU OF PRISONS,
    15                          Cross-Defendants.1
    16                 -------------------------------------
    17   Before:   SACK and WESLEY, Circuit Judges, and KEENAN, District
    18             Judge.2
    19             Appeal from the dismissal of a Bivens action on the
    20   ground that the plaintiffs failed to serve process on the United
    21   States through service on the Attorney General of the United
    1
    The Clerk of the Court is directed to amend the caption as
    set forth above. We do not substitute any of the government-
    official defendants in favor of their successors under Federal
    Rule of Appellate Procedure 43(c)(2), because we understand each
    of the defendants in this Bivens action to be sued in his or her
    individual capacity, see, e.g., Higazy v. Templeton, 
    505 F.3d 161
    , 169 (2d Cir. 2007) ("The only remedy available in a Bivens
    action is an award for monetary damages from defendants in their
    individual capacities."), although the plaintiffs have specified
    as much only for some, not all, of the defendants, see Am. Compl.
    ¶¶ 17-59. "[A]ny misnomer [in the caption] that does not affect
    the substantial rights of the parties may be disregarded." Fed.
    R. App. P. 43(c)(2).
    2
    The Honorable John F. Keenan, of the United States
    District Court for the Southern District of New York, sitting by
    designation.
    2
    1    States by registered or certified mail, as they were required to
    2    do under Federal Rule of Civil Procedure 4(i).   We conclude that
    3    the district court's obligation to allow the plaintiffs a
    4    reasonable time to cure a service failure was satisfied here
    5    inasmuch as the defendants informed the plaintiffs of the failure
    6    of service, and the plaintiffs had sufficient time thereafter to
    7    cure it.   We also conclude that the defendants did not waive the
    8    requirement of service on the United States by failing to raise
    9    an improper-service defense by motion or in their pleadings.
    10              Affirmed.
    11                             ROBERT JOSEPH TOLCHIN, Jaroslawicz &
    12                             Jaros, LLC, New York, NY, for
    13                             Plaintiffs-Appellants.
    14                             DENNIS C. BARGHAAN, JR., Assistant
    15                             United States Attorney, for Chuck
    16                             Rosenberg, United States Attorney, and
    17                             Gregory G. Katsas, Acting Assistant
    18                             Attorney General, New York, NY, for
    19                             Defendant-Cross-Defendant-Appellee John
    20                             Ashcroft and Cross-Defendant Robert
    21                             Mueller.
    22                             DAVID E. BELL, Crowell & Moring LLP,
    23                             Washington, DC, for Defendant-Cross-
    24                             Defendant-Appellee Dennis Hasty.
    25                             Linda Cronin, Dominick Revellino,
    26                             and Rocco G. Avallone,
    27                             Cronin & Byczek, LLP, Lake Success, NY,
    28                             for Defendant-Cross-Defendnat-Appellee
    29                             Elizabeth Torres.
    30                             Robert Goldman, Esq., New York, NY, for
    31                             Defendant-Cross-Defendant-Appellee
    32                             William Beck.
    33                             Jerold Wolin, Wolin & Wolin Esqs.,
    34                             Jericho, NY, for Defendant-Cross-
    35                             Defendant-Appellees Sidney Chase,
    36                             Michael DeFrancisco, Richard Diaz, and
    3
    1                             Mario Machado.
    2                             Yvonne Shivers, Levitt & Kaizer,
    3                             Attorneys at Law, New York, NY, for
    4                             Defendant-Cross-Defendant-Appellee
    5                             Raymond Cotton.
    6                            James G. Ryan, Elizabeth Iovino,
    7                            and Jennifer A. McLaughlin,
    8                            Cullen and Dykman LLP, Garden City, NY,
    9                            for Defendant-Cross-Defendant-Appellee
    10                            Steven Barrere.
    11                            Keith M. Sullivan, Sullivan & Galleshaw,
    12                            LLP, Middle Village, NY, for Defendant-
    13                            Cross-Defendant-Appellee Kevin Lopez.
    14                            Barry M. Lasky and Scott L. Steinberg,
    15                            Lasky & Steinberg, P.C., Garden City,
    16                            NY, for Defendant-Cross-Defendant-
    17                            Appellee C. Shacks.
    18                            James F. Matthews, Matthews & Matthews,
    19                            Huntington, NY, for Defendant-Cross-
    20                            Defendant-Appellee Marcial Mundo, III
    21                            ("Mounbo").
    22                            James J. Keefe, James J. Keefe, P.C.,
    23                            Garden City, NY, for Defendant-Cross-
    24                            Defendant-Appellee Salvatore LoPresti.
    25                            Gary E. Ireland, Law Offices of Gary E.
    26                            Ireland, Esq., New York, NY, for
    27                            Defendants-Cross-Defendants-Appellees
    28                            Christopher Witschel, Hosain, Moschello,
    29                            Norman, and for Defendant-Cross-
    30                            Claimant-Cross-Defendant-Appellee F.
    31                            Jonnson.
    32   SACK, Circuit Judge:
    33
    34             This is an appeal from the dismissal for failure to
    35   serve process on the United States of an action brought under
    36   Bivens v. Six Unknown Named Agents of the Federal Bureau of
    37   Narcotics, 
    403 U.S. 388
     (1971).   The plaintiffs, five Israeli
    38   nationals who were illegally present in the United States on
    4
    1    September 11, 2001, brought the underlying action in connection
    2    with certain alleged particulars of their arrest on that day and
    3    confinement thereafter at the Metropolitan Detention Center in
    4    Brooklyn.    They have since been removed from the United States by
    5    the Immigration and Naturalization Service.    The defendants are
    6    then-current and then-former officers of the federal government,
    7    including former United States Attorney General John Ashcroft,
    8    each of whom is sued in his or her individual capacity for
    9    actions taken in connection with his or her employment.3
    10               Pursuant to Federal Rule of Civil Procedure 4(i), in
    11   order to bring a Bivens action against these defendants, the
    12   plaintiffs were required to serve process on both the individual
    13   defendants and -- because the individual defendants were sued for
    14   acts or omissions occurring in connection with their performance
    15   of their duties -- the United States.    In order to serve process
    16   on the United States, the plaintiffs were required to deliver a
    17   copy of the complaint to the United States attorney for the
    18   district in which the action was brought and also send a copy of
    19   the summons and complaint by registered or certified mail to the
    20   Attorney General.    Here, the plaintiffs failed to comply with
    21   Rule 4(i) because they did not effect service on the United
    22   States.   The plaintiffs failed to do so despite receiving
    3
    The parties dispute whether the United States is also a
    party to this action. See Appellants' Br. 8; Ashcroft Br. 3-4
    n.3. The plaintiffs did not name the United States as a
    defendant in their Amended Complaint. For purposes of this
    appeal, we assume that the United States is not a separate party.
    That question has no bearing on the resolution of this appeal.
    5
    1    repeated reminders from the defendants that left the plaintiffs
    2    with sufficient time to complete service.
    3              Several, but not all, of the defendants, including
    4    then-Attorney General Ashcroft, moved to dismiss the action for
    5    improper service of process.   The United States District Court
    6    for the Eastern District of New York (John Gleeson, Judge)
    7    granted the motion and dismissed the action in its entirety.    The
    8    court rejected the plaintiffs' argument that the Attorney
    9    General's waiver of personal service on himself obviated the
    10   requirement of service of process on the United States.   The
    11   court also determined that the plaintiffs had been afforded a
    12   reasonable time to cure their failure to serve, as is required by
    13   Rule 4(i).   Upon a motion for reconsideration by the plaintiffs,
    14   the court rejected the argument that the action should not have
    15   been dismissed against those defendants who had failed to raise
    16   an improper service of process defense by motion or pleading.
    17   The court concluded that because these defendants did not have
    18   the power to waive the requirement of service on the United
    19   States, they did not in fact do so.
    20             We agree with the district court for substantially the
    21   reasons stated in its rulings, and therefore affirm.   We write
    22   primarily to make clear, first, that a district court's
    23   obligation to allow a plaintiff reasonable time to cure a failure
    24   to effect service of process is satisfied if the service failure
    25   is called to the plaintiff's attention by the defendant rather
    6
    1    than the court, provided that the plaintiff has sufficient time
    2    thereafter to complete such service; and second, that an
    3    individual defendant in a Bivens action lacks the power to waive
    4    the requirement of service of process on the United States.
    5                                BACKGROUND
    6              The plaintiffs filed an Amended Complaint on September
    7    21, 2004, asserting a Bivens action against the defendants, then-
    8    current and then-former officers of the United States government,
    9    including then-Attorney General John Ashcroft.4   At the
    10   conclusion of the 120-day period for service of process provided
    11   by Federal Rule of Civil Procedure 4(m), they sought a 60-day
    12   extension of time in which to serve all of the defendants.    The
    13   district court granted the motion.   Ashcroft, through counsel,
    14   then wrote a letter to the plaintiffs' counsel waiving personal
    15   service insofar as suit was being brought against him in his
    16   individual capacity:
    17             As you are aware . . . this office [the
    18             United States Attorney's Office for the
    19             Eastern District of Virginia] is responsible
    20             for the representation of Attorney General
    21             John Ashcroft, in his individual capacity. I
    22             am in receipt of the waiver of service form
    23             that you have sent to me, and the instant
    24             correspondence concerns the same.
    4
    In addition to damages, the Amended Complaint sought
    injunctive relief that would not be available in a Bivens action.
    See, e.g., Higazy, 
    505 F.3d at
    169 (supra, note 1). However, in
    their papers submitted to this Court the plaintiffs only seek
    damages, and refer to their lawsuit as a Bivens action. [Blue 3]
    Moreover, the district court treated the lawsuit as a Bivens
    action against the defendants in their individual capacities. We
    therefore treat the underlying lawsuit as a Bivens action.
    7
    1              My client has authorized me to accept your
    2              offer, and thus not require a process server
    3              to effectuate personal service upon him. As
    4              I am sure you understand, my client's
    5              decision in this regard in no way should be
    6              construed as waiving any cognizable defenses.
    7    Letter of Assistant U.S. Attorney Dennis C. Barghaan, Jr. dated
    8    Feb. 2, 2005.
    9              After the 60-day extension period expired, Ashcroft,
    10   through Barghaan, requested permission from the district court to
    11   move to dismiss the case on the ground, inter alia, that the
    12   plaintiffs had failed to effect proper service.   He argued that
    13   the plaintiffs had failed to comply with then-Federal Rule of
    14   Civil Procedure 4(i)(2)(B) because they had not served process on
    15   the United States through service upon Ashcroft by registered or
    16   certified mail and service upon the relevant United States
    17   Attorney's Office.
    18             In his written statement to the district court on
    19   Ashcroft's behalf, which was copied to plaintiffs' counsel,
    20   Barghaan set forth in precise terms what the plaintiffs were
    21   required to do:   "Pursuant to Federal Rule 4(i)(2)(B), service
    22   upon an officer of the United States sued in his individual
    23   capacity requires (1) personal service upon the officer; (2)
    24   delivering a copy of the summons and complaint to the United
    25   State's Attorney's Office for the district in which the action is
    26   pending; and (3) sending a copy of the same to the Attorney
    27   General via registered or certified mail."   Letter of Assistant
    28   U.S. Attorney Dennis C. Barghaan, Jr. to The Honorable John
    8
    1   Gleeson dated March 25, 2005 (internal quotation marks omitted).5
    2   Barghaan explained that although his February 2, 2005 letter had
    3   waived service "upon him," id. (emphasis in original), referring
    4   to Ashcroft, it had not purported to waive service upon the
    5   United States, id.6    One week later, the plaintiffs requested,
    6   nunc pro tunc, a second extension of time to serve process on the
    5
    The rule as then in effect provided:
    Service on an officer or employee of the
    United States sued in an individual capacity
    for acts or omissions occurring in
    connection with the performance of duties on
    behalf of the United States -- whether or
    not the officer or employee is sued also in
    an official capacity -- is effected by
    serving the United States in the manner
    prescribed by Rule 4(i)(1) and by serving
    the officer or employee in the manner
    prescribed by Rule 4(e), (f), or (g).
    Fed. R. Civ. P. 4(i)(2)(B) (pre-2007 amendment).
    The "manner prescribed by Rule 4(i)(1)" for serving the
    United States was, in relevant part, as follows:
    (1) Service upon the United States shall be
    effected (A) by delivering a copy of the
    summons and of the complaint to the United
    States attorney for the district in which
    the action is brought . . . and (B) by also
    sending a copy of the summons and of the
    complaint by registered or certified mail to
    the Attorney General of the United States at
    Washington, District of Columbia . . . .
    Fed. R. Civ. P. 4(i)(1) (pre-2007 amendment).
    6
    The February 2, 2005 letter from Ashcroft's counsel to
    plaintiffs' counsel waiving personal service specifically
    referred to personal service by a process server; it did not
    purport to waive any required service by registered or certified
    mail.
    9
    1    defendants.    The case was then referred to Magistrate Judge
    2    Steven Gold in the Eastern District of New York.    The magistrate
    3    judge scheduled a status conference and directed the parties to
    4    identify "any outstanding issues to be addressed."    Kurzberg v.
    5    Ashcroft, No. 04 Civ. 3950, Order, Docket No. 17 (E.D.N.Y. Apr.
    6    20, 2005).
    7                In response, Ashcroft, together with three other
    8    defendants, submitted a letter to the magistrate judge, copied to
    9    plaintiffs' counsel via electronic filing, calling attention once
    10   again to the issue of service of process on the United States.
    11   The letter asserted that the "plaintiffs have not effectuated
    12   proper service upon any of [the defendant signatories]" because,
    13   inter alia, "Mr. Ashcroft has only waived personal service upon
    14   him," and "[s]ervice upon a federal officer sued in his
    15   individual capacity . . . [requires] service upon the Attorney
    16   General."    Letter of Assistant U.S. Attorney Dennis C. Barghaan,
    17   Jr. to The Honorable Steven M. Gold dated April 29, 2005.      At the
    18   status conference, the plaintiffs made an oral motion for
    19   additional time to accomplish service of process, which the
    20   magistrate judge denied without prejudice to the filing of a
    21   formal motion to the same effect.
    22               The plaintiffs subsequently made a formal motion, under
    23   Federal Rule of Civil Procedure 4(i)(3)(A), as then in force,
    24   seeking a "reasonable time . . . to cure the failure to serve any
    25   defendant who has not been served with process in this action,"
    26   or a second extension of time under Federal Rule 4(m) to effect
    10
    1    proper service.   Pls.' Declaration in Support of Mot. to Enlarge
    2    Time to Serve Summons and Complaint, dated May 12, 2005, at 3.
    3    In making their motion, the plaintiffs argued that "[t]here is no
    4    question that the Attorney General . . . has been served."   Pls.'
    5    Mem. of Law in Support of Mot. to Enlarge Time to Serve Summons
    6    and Complaint, dated May 12, 2005, at 2.   In response, Ashcroft
    7    stated yet again that the plaintiffs' failure to serve the United
    8    States was fatal to their claims:
    9              Plaintiffs cannot argue that effecting
    10              service upon the Attorney General personally
    11              (through a waiver of service form to his
    12              individual capacity counsel in Alexandria,
    13              Virginia) is sufficient to effectuate service
    14              on the Attorney General officially. This
    15              Court has held that this third and final
    16              element of individual capacity must be
    17              fulfilled regardless of whether the Attorney
    18              General has been provided with notice of the
    19              summons and complaint in some other fashion.
    20   Ashcroft's Mem. in Opp. to Pls.' Motion to Enlarge Time to Serve
    21   Summons and Complaint, dated May 26, 2005, at 5 n.4 (emphasis in
    22   original).   Ashcroft specifically asserted that the plaintiffs
    23   "have yet . . . to [direct] a copy of the summons and complaint
    24   to the Attorney General via certified or registered mail in the
    25   District of Columbia."   Id. at 8 (emphasis in original).
    26              The magistrate judge denied the plaintiffs' motion
    27   under Rule 4(i)(3)(A), as then in force, for a reasonable time to
    28   cure, but granted their motion in the alternative under Rule 4(m)
    29   for a discretionary extension of time to accomplish service of
    30   process.   See Kurzberg v. Ashcroft, No. 04 Civ. 3950, Memorandum
    31   and Order, Docket No. 58 (E.D.N.Y. Dec. 19, 2005).   In denying
    11
    1    the plaintiffs' request for a reasonable time to cure under then-
    2    Rule 4(i)(3)(A), the court concluded that the cure provision only
    3    applied to actions governed by then-Rule 4(i)(2)(A).    He reasoned
    4    that Rule 4(i)(2)(A) did not govern the plaintiffs' Bivens action
    5    because it only governed actions against government officials who
    6    were sued in their official, rather than individual, capacities.
    7    He was of the view that "service of process on defendants in a
    8    Bivens action is governed by Rule 4(e)," id. at 3-4, the generic
    9    provision for serving process on individual defendants, which
    10   does not require service on the United States, see id..
    11              In explaining his decision to grant a discretionary
    12   extension of time under Rule 4(m), the magistrate judge referred
    13   to, inter alia, the fact that the statute of limitations would
    14   preclude the plaintiffs from re-filing their lawsuit should it be
    15   dismissed.   See id. at 6-7.   He ruled, however, that "this will
    16   be the final extension of time plaintiffs will be granted by this
    17   court."   Id. at 7.   The decision gave no indication that the
    18   plaintiffs' failure to serve process on the United States was a
    19   defect -- and indeed, its conclusion that service of process was
    20   governed by Rule 4(e) implied to the contrary.
    21              The time period for completion of service extended
    22   under Rule 4(m) elapsed without the plaintiffs serving process on
    23   the United States through service on the Attorney General by
    24   registered or certified mail.    They did, however, attempt to
    25   serve the United States three days before the time period expired
    26   by sending a copy of the summons and complaint by first-class
    12
    1    mail to the mailing address for the Attorney General at the
    2    Department of Justice; the attempt was insufficient because it
    3    did not make use of registered or certified mail.
    4              After the time period granted by the court had expired,
    5    several of the defendants, including Ashcroft, moved in the
    6    district court to dismiss the action on grounds of improper
    7    service of process, including failure to serve the United States
    8    through service on the Attorney General by registered or
    9    certified mail.   The district court (John Gleeson, Judge)
    10   dismissed the case with respect to all of the defendants,
    11   including those who had not raised an improper service defense by
    12   pleading or motion.   See Kurzberg v. Ashcroft, No. 04 Civ. 3950,
    13   
    2006 WL 2738991
    , 
    2006 U.S. Dist. LEXIS 68680
     (E.D.N.Y. Sept. 25,
    14   2006) ("Kurzberg I").   The court rejected the plaintiffs'
    15   argument that personal service on the Attorney General, which
    16   had, they asserted, been accomplished by Ashcroft's waiver,
    17   obviated the need to serve process on the United States because
    18   the Attorney General was already aware of the lawsuit.   The court
    19   explained that the drafters of Rule 4(i) had been careful to
    20   "keep separate officers' individual and official capacities."
    21   
    Id.,
     
    2006 WL 2738991
    , at *5, 
    2006 U.S. Dist. LEXIS 68680
    , at *16.
    22   "Rule 4(i), by its plain text, requires service both upon the
    23   individual defendant and upon the United States officially; one
    24   will not suffice for the other."     
    Id.
    25             The district court also rejected the plaintiffs'
    26   argument that they were entitled to a reasonable time to cure
    13
    1    their failure to serve process on the United States.    The
    2    district court acknowledged that it was bound, under Rule 4(i),
    3    to "'allow a reasonable time to serve process . . . for the
    4    purpose of curing the failure to serve . . . the United
    5    States . . . if the plaintiff has served an officer or employee
    6    of the United States sued in an individual capacity,'" 
    id.,
     2006
    
    7 WL 2738991
    , at *6, 
    2006 U.S. Dist. LEXIS 68680
    , at *17-18
    8    (quoting Rule 4(i)(3)(B)), which the plaintiffs had accomplished
    9    by serving Ashcroft in his individual capacity by means of his
    10   waiver.   The court concluded, however, that the plaintiffs had
    11   already been afforded a reasonable time to cure their failure to
    12   serve process on the United States.   It reasoned that the
    13   plaintiffs had been given two extensions of time to effectuate
    14   proper service of process, one of which was preceded by "repeated
    15   statements of defendants' counsel" explicitly underlining the
    16   plaintiffs' failure to serve the United States and the steps they
    17   had to take in order to effect proper service.   
    Id.,
     
    2006 WL 18
       2738991, at *6, 
    2006 U.S. Dist. LEXIS 68680
    , at *20.    The court
    19   did not mention the implication contained in the magistrate
    20   judge's earlier decision that service of process on the United
    21   States was not necessary, nor do the plaintiffs appear to have
    22   argued to the district court that they relied on that
    23   implication.   The district court's dismissal of the case was
    24   effectively with prejudice inasmuch as the statute of limitations
    25   on the Bivens claim had run.
    14
    1              The plaintiffs sought partial reconsideration of the
    2    court's ruling, arguing that because several of the defendants
    3    had not raised a service of process defense by motion or
    4    pleading, such a defense had been waived, and dismissal of the
    5    case against those defendants was improper.   The court, rejecting
    6    that argument, denied the motion.    See Kurzberg v. Ashcroft, No.
    7    04 Civ. 3950, 
    2006 WL 3717535
    , 
    2006 U.S. Dist. LEXIS 90900
     (Dec.
    8    15, 2006) ("Kurzberg II").   The court noted that it was empowered
    9    under Rule 4(m) to dismiss an action "upon motion or on its own
    10   initiative" for failure to serve process, 
    id.,
     
    2006 WL 3717535
    ,
    11   at *1, 
    2006 U.S. Dist. LEXIS 90900
    , at *4 (internal quotation
    12   marks omitted; emphasis in original), and concluded that the
    13   requirement of service upon the United States could not be waived
    14   by individual defendants in a Bivens action, even though it was
    15   in the context of serving such defendants, among others, that
    16   service upon the United States was required, 
    id.,
     
    2006 WL 17
       3717535, at *3-4, 
    2006 U.S. Dist. LEXIS 90900
    , at *11-12.   The
    18   court reasoned that the United States had an independent interest
    19   in being served with process.   "In this atypical case, when
    20   service must be made upon a nonparty [the United States] to allow
    21   that nonparty to protect its interests, a named defendant's
    22   failure to challenge service of process falls outside the domain
    23   of [waiver under Federal Rule of Civil Procedure] 12(h)(1)(B)."
    24   
    Id.,
     
    2006 WL 3717535
    , at *4, 
    2006 U.S. Dist. LEXIS 68680
    , at *11-
    25   12.
    15
    1              On appeal the plaintiffs argue that they were never
    2    given a reasonable time to cure their failure to serve process on
    3    the United States because the court did not, before dismissing
    4    the action, make a finding of fact that they had failed to serve
    5    the United States.   The plaintiffs also contend that dismissal of
    6    the action against those defendants who failed to raise a service
    7    of process defense by motion or pleading was improper because the
    8    defense was thereby waived.    The plaintiffs do not raise the
    9    issue whether the magistrate judge's opinion implied that service
    10   on the United States was not required or what the significance of
    11   any such implication might be.
    12                                 DISCUSSION
    13             I.   Standard of Review
    14             "We review for an abuse of discretion a district
    15   court's Rule 4(m) dismissal for failure to serve process."
    16   Zapata v. City of New York, 
    502 F.3d 192
    , 195 (2d Cir. 2007).7
    7
    The plaintiffs argue that the standard of review is de
    novo because Rule 4(i) was amended after the district court's
    rulings in this case, and therefore this Court's application of
    Rule 4(i), in its current form, to the facts of this case will
    represent the first such application. However, the amendment at
    issue was "intended to be stylistic only." Advisory Committee
    Notes, 2007 Amendment, Rule 4. The plaintiffs' argument is
    therefore without merit, even if we were to analyze this case
    using the current version of the rules rather than that which was
    in place at the time of the district court's rulings.
    The plaintiffs also argue that the standard of review is de
    novo because the cure provision in Rule 4(i) is mandatory. That
    fact does not affect the standard of review. If the district
    court failed to consider the cure provision, that would qualify
    as an abuse of discretion. See, e.g., United States v. Hasan,
    
    586 F.3d 161
    , 168 (2d Cir. 2009) (error of law constitutes, in
    effect, abuse of discretion).
    16
    1               II.   Service of Process under the Federal Rules
    2               Rule 4 of the Federal Rules of Civil Procedure governs
    3    the service of process in a civil suit.     Because the district
    4    court relied upon the pre-2007 incarnation of the rule in the
    5    decisions under review, even though, as noted below, the changes
    6    were intended as stylistic only, we use that version also in an
    7    attempt to avoid confusion.   We include a reference to the
    8    corresponding current version of each provision discussed for the
    9    convenience of the reader.
    10              The district court dismissed the plaintiffs' action
    11   pursuant to Rule 4(m).   Under Rule 4(m),
    12              [i]f service of the summons and complaint is
    13              not made upon a defendant within 120 days
    14              after the filing of the complaint, the court,
    15              upon motion or on its own initiative after
    16              notice to the plaintiff, shall dismiss the
    17              action without prejudice as to that
    18              defendant . . . . provided that if the
    19              plaintiff shows good cause for the failure,
    20              the court shall extend the time for service
    21              for an appropriate period.
    22   Fed. R. Civ. P. 4(m) (pre-2007 amendment).8
    23              In general, the method of serving process on an
    24   individual is governed by Rule 4(e), which does not require
    8
    The current version of Rule 4(m) reads:
    If a defendant is not served within 120 days
    after the complaint is filed, the court –- on
    motion or on its own after notice to the
    plaintiff –- must dismiss the action without
    prejudice against that defendant . . . . But
    if the plaintiff shows good cause for the
    failure, the court must extend the time for
    service for an appropriate period.
    Fed. R. Civ. P. 4(m)
    17
    1    service on the United States even if the individual is a
    2    government employee.    Service on an officer or employee of the
    3    United States sued in his or her individual capacity for acts or
    4    omissions occurring in connection with his or her performance of
    5    duties on behalf of the United States, however, "whether or not
    6    the officer or employee is sued also in an official capacity,"
    7    requires service of process on both the individual being sued and
    8    the United States.    Fed. R. Civ. P. 4(i)(2)(B) (pre-2007
    9    amendment).9
    10               In order to serve process on the United States, a party
    11   must deliver a copy of the summons and complaint to the United
    12   States Attorney for the district in which the action is brought,
    13   and, of particular importance to this appeal, send a copy of the
    14   summons and complaint by registered or certified mail to the
    15   Attorney General.    See Fed. R. Civ. P. 4(i)(1)(A-B) (pre- and
    16   post-2007 amendment).
    17               The Federal Rules contain a "cure provision" requiring
    18   the district court to allow a party who has failed to serve
    19   process on the United States but is required to do so a
    20   "reasonable time" to cure such a failure.    See Fed. R. Civ. P.
    21   4(i)(3)(B) (pre-2007 amendment) ("The court shall allow a
    22   reasonable time to serve process under Rule 4(i) for the purpose
    23   of curing the failure to serve . . . the United States in an
    24   action governed by Rule 4(i)(2)(B), if the plaintiff has served
    9
    This requirement is now provided in Rule 4(i)(3).
    18
    1    an officer or employee of the United States sued in his
    2    individual capacity.").10
    3              III. Whether The Plaintiffs Had a
    4                   Reasonable Time to Cure
    5              The plaintiffs argue that they were not afforded a
    6    reasonable time to cure their failure to serve process on the
    7    United States.11   The crux of their argument is that the district
    8    court never "officially determined" that their service of process
    9    was "in need of being cured."   Appellants' Br. at 18.   The
    10   plaintiffs contend that absent such a determination by the
    11   district court, there was nothing to cure.    The extensions of
    12   time that were granted to the plaintiffs do not constitute time
    13   to cure under the Rule because the extensions followed warnings
    14   by the defendants, not the court.
    10
    The current version of the "cure provision," Rule
    4(i)(4), reads, in relevant part: "The court must allow a party a
    reasonable time to cure its failure to . . . (B) serve the United
    States under Rule 4(i)(3), if the party has served the United
    States officer or employee."
    Fed. R. Civ. P. 4(i)(4).
    11
    The defendants urge us to ignore this argument because
    the plaintiffs failed to raise it before the district court.
    There, the plaintiffs argued that Ashcroft's waiver of personal
    service upon him in his individual capacity sufficed for service
    of process on the United States. There is indeed a "general rule
    that an appellate court will not consider an issue raised for the
    first time on appeal." Greene v. United States, 
    13 F.3d 577
    , 586
    (2d Cir. 1994); but see 
    id.
     ("We will [] sometimes entertain
    arguments not raised in the trial court if the elements of the
    claim were fully set forth and there is no need for additional
    fact finding."). But this is an unusual case inasmuch as the
    district court raised, sua sponte, the argument that the
    defendants ask us to ignore, and discussed it at length. The
    argument was thus raised in the district court, albeit not by the
    plaintiffs.
    19
    1              We disagree.   Nothing in the language of Rule
    2    4(i)(3)(A) suggests that a defect in the service of process can
    3    be identified for purposes of permitting the plaintiff to cure
    4    the defect only by the court.   The Advisory Committee described
    5    the cure provision as requiring that "[a] reasonable time to
    6    effect service on the United States must be allowed after the
    7    failure is pointed out."   Advisory Committee Notes, 2000
    8    Amendment, Rule 4.   Had the Committee meant to require that the
    9    error be pointed out by the court, it could easily, and surely
    10   would, have said so.
    11             Other circuits faced with this issue have concluded
    12   that notification to the plaintiff by the defendant, rather than
    13   by the court, of a defect in the service of process is sufficient
    14   to start the clock on the reasonable amount of time afforded to
    15   the plaintiff to cure the defect.    See Flory v. United States, 79
    
    16 F.3d 24
    , 25 (5th Cir. 1996) (per curiam) ("By raising the defense
    17   of defective service well within the expiration of the 120-day
    18   period allowed for service . . . the United States allowed
    19   plaintiff [] time to cure the defect, which she did not do."
    20   (emphasis added)); Tuke v. United States, 
    76 F.3d 155
    , 158 (7th
    21   Cir. 1996) (concluding that cure provision would not avail a
    22   plaintiff who failed to serve the Attorney General after being
    23   told twice -- once by defense counsel, and once by an incorrect
    24   recipient of the summons and complaint, but neither time by the
    25   district court -- that his service of process was defective); see
    26   also Hawkins v. Potter, 
    234 F. App'x 188
    , 189 n.1 (5th Cir. 2007)
    20
    1    (per curiam) ("There is no legal requirement that a district
    2    court notify the party regarding an insufficiency of service
    3    before deciding a reasonable time to cure has past. . . .
    4    [N]otice from [the] other party [is] sufficient.").
    5              We find no authority to the contrary, and reach the
    6    same conclusion.   Indeed, if we were to accept the plaintiffs'
    7    proposed requirement of an "official determination" by the court
    8    that service of process was defective before the cure provision
    9    was triggered, this would effectively require that a motion to
    10   dismiss for failure to serve process be granted only after such a
    11   motion had already been made once and denied for the purpose of
    12   affording the plaintiff a reasonable time to cure.    We do not see
    13   why, as a practical matter or in the interests of judicial
    14   economy, that should be the case.    There is nothing we perceive
    15   to be inherently wrong with requiring plaintiffs to adhere to a
    16   rule of procedure when their failure to do so has been correctly
    17   pointed out by an adversary.
    18             We repeat that the plaintiffs do not argue on appeal
    19   that they relied on any implication in the magistrate judge's
    20   opinion to the effect that service on the United States under
    21   Federal Rule of Civil Procedure 4(i) was not required.   The
    22   magistrate judge's conclusion that service of process in a Bivens
    23   action is governed by Federal Rule of Civil Procedure 4(e) -- a
    24   rule that would not require service on the United States -- was
    25   incorrect.   But because the plaintiffs do not assert that they
    26   relied on that conclusion or its implications in failing to
    21
    1    effect proper service, we need not decide the significance of the
    2    error.   In any event, the plaintiffs concede that they attempted
    3    to serve process on the United States through service on Ashcroft
    4    by first-class mail three days before the extension of time
    5    expired.   In other words, they plainly knew before the "cure"
    6    time had run that they were required to serve the United States.
    7    Any claim of reliance on the magistrate judge's misstatement, had
    8    it been made before us, likely would have been unpersuasive.
    9               For the foregoing reasons, we conclude that the
    10   district court did not abuse its discretion in holding that the
    11   plaintiffs were not entitled to any more time to cure their
    12   defective service of process on the United States.
    13              IV.   Whether Service of Process on the United States
    14                    Was Waived by Certain Defendants
    15              The plaintiffs argue that dismissal of their Bivens
    16   action against those of the defendants who did not raise the
    17   defense of improper service of process by motion or pleading was
    18   improper, because that defense was thereby waived as to those
    19   defendants.   We conclude, however, that an individual defendant
    20   in a Bivens action is incapable of waiving service on the United
    21   States under Federal Rule of Civil Procedure 4(i), and thus
    22   incapable of waiving such a defense on its behalf.
    23              In general, a defense of insufficient service of
    24   process is waived if the party wishing to assert it fails to do
    25   so by means of a 12(b) motion or in a responsive pleading.     See
    26   Fed. R. Civ. P. 12(h)(1).   But it should go without saying that a
    27   person without the power to waive cannot effect a waiver.     See
    22
    1    Zedner v. United States, 
    547 U.S. 489
    , 500-01 (2006) (concluding
    2    that criminal defendant cannot waive prospective application of
    3    Speedy Trial Act because Act protects not only defendant's right
    4    to speedy trial, but also "public interest").    The requirement of
    5    serving process on the United States in a Bivens action protects
    6    interests of the United States separate and apart from those of
    7    the individual defendant who may be said to have waived service,
    8    intentionally or otherwise.   The Advisory Committee has explained
    9    in this context:   "Service on the United States will help to
    10   protect the interest of the individual defendant in securing
    11   representation by the United States, and will expedite the
    12   process of determining whether the United States will provide
    13   representation."   Advisory Committee Notes, 2000 Amendment, Rule
    14   4 (emphasis added).   Indeed, the government will provide
    15   representation for a federal employee in these circumstances only
    16   if the Attorney General (or his or her designee) determines "that
    17   providing representation would otherwise be in the interest of
    18   the United States."   
    28 C.F.R. § 50.15
    (a).   Service of process on
    19   the United States thus protects the interest of the United States
    20   in choosing whether to provide representation to an individual
    21   defendant.   Unless we were to reach the unlikely conclusion that
    22   the defendant who does not insist on service by the plaintiff on
    23   the Unites States forfeits such representation by the government,
    24   that interest is not the defendant's to waive.   It was therefore
    25   not waived by the defendants here in failing to raise it before
    26   the district court.
    23
    1              If in another case the failure of the defendant to
    2    raise the issue in its pleadings or on motion served to mislead
    3    the plaintiff into failure to complete service, there might be
    4    relief available to the plaintiff.    For the foregoing reasons,
    5    however, we do not see how a finding of waiver by the United
    6    States would be a form of such relief.
    7              V.    Remaining Arguments
    8              The plaintiffs also argue that the district court
    9    interpreted the pre-2007 cure provision to require only the
    10   allowance of a reasonable time to effectuate service in the first
    11   place, rather than to cure a failure of service, whereas the
    12   post-2007 version of the cure provision requires the allowance of
    13   a reasonable time to cure a defect in the service of process.
    14   This argument is without merit even were we to apply the current
    15   version of Rule 4.    The old version of the rule, applied by the
    16   district court, provided that "the court shall allow a reasonable
    17   time to serve process . . . for the purpose of curing the failure
    18   to serve."   Fed. R. Civ. P. 4(i)(3)(B) (pre-2007 amendment)
    19   (emphasis added).    We think it implausible that the district
    20   court did not understand that the provision required it to allow
    21   the plaintiffs time to cure a failure to serve process.    Plainly,
    22   it did.   See Kurzberg I, 
    2006 WL 2738991
    , at *6, 2006 U.S. Dist.
    
    23 LEXIS 68680
    , at *18 (referring to Rule 4(i)(3)(B) as "cure
    24   provision").
    24
    1                                CONCLUSION
    2              Serving process on the United States through service by
    3    registered or certified mail on the Attorney General might seem,
    4    from a practical standpoint, to be nothing more than a formality
    5    inasmuch as the Attorney General, who is charged with determining
    6    whether the United States will provide representation to
    7    individual defendants, was himself an individual defendant in
    8    this lawsuit.   That does not, however, excuse noncompliance with
    9    the Federal Rules of Civil Procedure.    The district court did not
    10   err in so holding.
    11             For the foregoing reasons, we affirm the judgment of
    12   the district court.
    25