Debra McMasters v. United States of America and the Department of the Navy

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2991
Debra McMasters,
Plaintiff-Appellant,
v.
United States of America and
the Department of the Navy,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 6413--Charles P. Kocoras, Judge.
Argued February 26, 2001--Decided August 14, 2001
Before Bauer, Posner, and Kanne, Circuit
Judges.
Kanne, Circuit Judge. On August 2, 1991,
fifteen year- old Amanda Lee Scott was
raped and murdered by then-United States
Marine Valentine Underwood./1 On
February 28, 1995, Scott’s mother,
plaintiff-appellant Debra McMasters,
filed suit against the United States and
the Department of the Navy in the United
States District Court for the Central
District of California seeking damages
under state law as well as under the
Federal Tort Claims Act ("FTCA"), 28
U.S.C. sec. 1346(b)./2 McMasters,
proceeding pro se, delivered a copy of
the summons and complaint to the U.S.
Marine Corps’ Air and Ground Center in
Twenty-Nine Palms, California, on July
30, 1995. Approximately a year later,
McMasters sent a copy of the summons and
complaint via certified mail to the
Attorney General of the United States. At
that time, McMasters also sent copies of
the summons and complaint to the
Commandant of the Marine Corps and the
Department of the Navy.
Three years later, McMasters filed a
motion for default judgment based on the
fact that the government had not
responded to her complaint. The
government opposed McMasters’ motion,
asserting that it did not have notice of

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the action until McMasters filed the
motion for default judgment because
McMasters failed to serve the United
States Attorney for the Central District
of California. The district court denied
McMasters’ motion for default judgment
but determined that service was proper:
The Court will, however, deem the U.S.
Attorney’s Office as served because
McMasters, representing herself pro se,
has "substantially complied" with Fed. R.
Civ. Proc. Rule 4 and it is clear that
the U.S. Attorney’s Office by its
response to the instant motion has actual
notice of the complaint against its
clients, the United States of America and
the Department of the Navy. McMasters
contends that she has a justifiable
excuse for the failure to serve properly
in that she received erroneous
information regarding the service of
process. Further, the defendants have not
shown any prejudice from the defect in
the service of the summons and complaint,
whereas plaintiff would be severely
prejudiced by the loss of her claim if
the court were to construe Rule 4 in a
rigid manner in this case.
McMasters v. United States, No. 00-2991
(C. D. Cal. Aug. 8, 1998) (order denying
plaintiff’s motion for default judgment
and ordering defendants to file a
responsive pleading).
On August 24, 1998, McMasters moved to
transfer the case from the Central
District of California to the Northern
District of Illinois pursuant to 28
U.S.C. sec. 1404(a). The government did
not oppose the transfer, and the district
court granted the motion. McMasters, now
represented by counsel, filed an amended
complaint in the Northern District of
Illinois alleging that, as her daughter’s
next-of-kin, she was entitled to relief
under the FTCA because the Marine Corps
negligently recruited, enlisted,
supervised, and retained Underwood. In
its answer, the government presented sev
eral defenses including insufficient
service of process. The government filed
a motion for judgment on the pleadings,
or alternatively for summary judgment,
arguing that the case should be dismissed
for insufficient service of process, or
alternatively, because plaintiff’s claims
were barred by the FTCA’s assault and
battery exception, 28 U.S.C. sec.

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2680(h), and the discretionary function
exception, 28 U.S.C. sec. 2680(a).
McMasters filed a cross-motion for
summary judgment.
On March 28, 2000, the district court
granted the government’s motion for
judgment on the pleadings, finding that
service of process was insufficient
because McMasters failed to serve the
United States Attorney./3 In making
this determination, the court recognized
that a court is generally bound by
decisions made by a coordinate court but
found that the determination of the
district court for the Central District
of California regarding service of
process was "clearly erroneous and would
work a manifest injustice" if allowed to
stand. McMasters v. United States, No. 98
C 6413, 2000 WL 336549, at *4 (N.D. Ill.
March 28, 2000). McMasters filed a motion
for reconsideration and the district
court denied the motion. She now appeals.
We review the district court’s order
granting the motion for judgment on the
pleadings de novo, drawing all inferences
in the light most favorable to McMasters.
See Velasco v. Ill. Dep’t. of Human
Servs., 246 F.3d 1010, 1016 (7th Cir.
2000).
The plain language of Rule 4(i) of the
Federal Rules of Civil Procedure requires
that, in order to properly serve the
United States or its agencies,
corporations, or officers, a plaintiff
must deliver a copy of the summons and
the complaint to the U.S. Attorney’s
Office for the district in which the
action is brought, as well as to the
Attorney General of the United
States./4 While a court must give a
plaintiff reasonable time to cure a
defect in service under Rule 4(i)(3)/5
or grant an appropriate extension of time
for service under Rule 4(m),/6 nothing
in the Federal Rules of Civil Procedure
allows a judge to excuse service
altogether. Actual notice to the
defendant is insufficient; the plaintiff
must comply with the directives of Rule
4. See Mid-Continent Wood Prod., Inc. v.
Harris, 936 F.2d 297, 301-02 (7th Cir.
1991) (stating that neither actual notice
nor substantial compliance is sufficient
to satisfy the requirements of Rule 4);
see also Gabriel v. United States, 30
F.3d 75, 77 (7th Cir. 1994) (upholding
dismissal where plaintiff served U.S.

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Attorney by mail because, at that time,
Rule 4(d)(4) required personal service on
the U.S. Attorney).
Although McMasters mailed a copy of the
summons and complaint to the Attorney
General in accordance with Rule
4(i)(1)(B), at no point did she ever
serve the U.S. Attorney. This failure
renders improper the service of the
United States. See Tuke v. United States,
76 F.3d 155, 157 (7th Cir. 1996) (stating
that a plaintiff must comply with both
prongs of 4(i)(1) "for good reason:
that’s what the rule says"). The fact
that McMasters was proceeding pro se does
not excuse her failure to comply with
procedural rules. See, e.g., McNeil v.
United States, 508 U.S. 106, 113, 113 S.
Ct. 1980, 124 L. Ed. 2d 21 (1993) ("[W]e
have never suggested that procedural
rules in ordinary civil litigation should
be interpreted so as to excuse mistakes
by those who proceed without counsel.")
(footnote omitted). Thus, we are in
agreement with the district court’s
conclusion that, "the Central District of
California may have been within its
discretion in permitting McMasters’
service on the Attorney General nearly 15
months after the filing of her complaint,
but clearly erred in excusing McMasters
from ever having served or having to
serve the U.S. Attorney." McMasters v.
United States, 2000 WL 336549, at *4.
Although this may seem overly
formalistic, "[t]he Supreme Court insists
that federal judges carry out the rules
of procedure, whether or not those rules
strike the judges as optimal." Tuke, 76
F.3d at 157.
McMasters argues that even if service
was improper, the district court erred in
revisiting the decision of the Central
District of California. She contends that
the law of the case doctrine precluded
the district judge in the Northern
District of Illinois from reviewing the
pre-transfer decision of the district
judge in the Central District of
California that service was proper.
McMasters is correct that the law of the
case doctrine, which provides that courts
should refrain from reopening issues
decided in earlier stages of the same
litigation, see Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800,
815-16, 108 S. Ct. 2166, 100 L. Ed. 2d
811 (1988), applies when a case is

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transferred from one district court to
another. See id. at 816. ("[T]he [law of
the case] doctrine applies as much to the
decisions of a coordinate court in the
same case as to a court’s own
decisions."). However, as the district
court correctly recognized, "[t]he
doctrine does not apply if the court is
’convinced that [the prior decision] is
clearly erroneous and would work a
manifest injustice.’" Agostini v. Felton,
521 U.S. 203, 236, 117 S. Ct. 1997, 138
L. Ed. 2d 391 (1997) (quoting Arizona v.
California, 460 U.S. 605, 618 n.8, 103 S.
Ct. 1382, 75 L. Ed. 2d 318 (1983)).
Whether the second district judge
correctly overruled the decision of the
first district judge is of no moment on
appeal, however, when we are faced with
an issue of law. Notwithstanding
plaintiff’s assertions to the contrary,
the law of the case doctrine does not
prevent either party from seeking review
of an erroneous decision by a district
court. On appeal, "the question is not
whether the second judge should have
deferred to the ruling of the first
judge, but whether that ruling was
correct." Williams v. Comm’r of Internal
Revenue, 1 F.3d 502, 503 (7th Cir. 1993);
see also Champaign-Urbana News Agency,
Inc. v. J.L. Cummins News Co., 632 F.2d
680, 683 (7th Cir. 1980) ("[O]bviously we
cannot be expected to reverse a correct
decision by one district judge simply
because we find it is contrary to a prior
ruling by another district judge in the
same case.") (internal quotation
omitted). As we indicated above, the dis
trict court correctly found that
McMasters failed to properly serve the
United States; therefore, plaintiff’s
first argument fails.
Next, McMasters contends that service
was proper under Ninth Circuit precedent
and that the district judge in the
Northern District of Illinois should have
applied that law when evaluating whether
service was proper. McMasters relies on
Borzeka v. Heckler, 739 F.2d 444 (9th
Cir. 1984), to support her contention
that the district judge in the Central
District of California properly concluded
that service had been effected on the
United States. In Borzeka, the plaintiff
attempted to serve the U.S. Attorney by
sending the summons and complaint by
certified mail rather than personally

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serving the U.S. Attorney as required at
that time by Rule 4(d)(5) of the Federal
Rules of Civil Procedure. See id. In
reversing the district court’s dismissal,
the Ninth Circuit held that failure to
comply with the personal service
requirement of Rule 4(d)(5) did not
require dismissal if: "(a) the party that
had to be served personally received
actual notice, (b) the defendant would
suffer no prejudice from the defect in
service, (c) there is a justifiable
excuse for the failure to serve properly,
and (d) the plaintiff would be severely
prejudiced if his complaint were
dismissed." Id. at 447 (footnote
omitted).
We are not convinced that McMasters’
service of the United States was proper
even under the test articulated in
Borzeka; however, we need not consider
that issue because McMasters’ assertion
that Ninth Circuit precedent applies in
this case is incorrect. Although the law
of the transferor court continues to
apply when a diversity case is
transferred from one district court to
another under sec. 1404(a), see Van Dusen
v. Barrack, 376 U.S. 612, 639, 84 S. Ct.
805, 11 L. Ed. 2d 945 (1964), the
transferee court is usually "free to
decide [federal issues] in the manner it
views as correct without deferring to the
interpretation of the transferor
circuit," In re Korean Air Lines
Disaster, 829 F.2d 1171, 1174 (D.C. Cir.
1987) (Ruth B. Ginsburg, J.) (internal
quotation omitted), aff’d on other
grounds sub nom. Chan v. Korean Air
Lines, Ltd., 490 U.S. 122, 109 S. Ct.
1676, 104 L. Ed. 2d 113 (1989). On a
limited number of federal issues, a court
may be required to apply the law of a
different circuit to cases which have
been transferred under sec. 1404(a), see
Eckstein v. Balcor Film Investors, 8 F.3d
1121, 1126-27 (7th Cir. 1993), but the
general rule is that "[a] single federal
law implies a national interpretation . .
. . [T]he norm is that each court of
appeals considers the question
independently and reaches its own
decision, without regard to the
geographic location of the events giving
rise to the litigation." Id. at 1126; see
also In re Korean Air Lines Disaster, 829
F.2d at 1175. ("[B]ecause there is
ultimately a single proper interpretation
of federal law, the attempt to ascertain

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and apply diverse circuit interpretations
simultaneously is inherently self-
contradictory."). Although "Congress
might require one federal court to apply
another’s interpretation of federal law .
. . sec. 1404(a) does not itself do so."
Eckstein, 8 F.3d at 1126. Only where the
law of the United States is specifically
intended to be geographically non-uniform
should the transferee court apply the
circuit precedent of the transferor
court. See id. ("Section 27A [of the
Securities Exchange Act of 1934]
recognizes that different circuits had
taken different approaches to the
appropriate statute of limitations in
suits under sec. 10(b), and it codifies
this fractured nature of federal law . .
. ."). But see Menowitz v. Brown, 991
F.2d 36, 40-41 (2d Cir. 1993) (finding
that a transferee court should always
apply the law of its circuit and ignore
the law of the transferor circuit under
sec. 27A). Unlike the statute at issue in
Eckstein, the Federal Rules of Civil
Procedure are not intended to be
geographically non-uniform. Thus, the
district court properly applied Seventh
Circuit precedent in evaluating whether
McMasters’ case should be dismissed for
failure to serve the United States
Attorney.
For the foregoing reasons, we find that
the district court properly dismissed
McMasters’ complaint for failure to
effect proper service on the United
States. The decision of the district
court is AFFIRMED.
FOOTNOTES
/1 Valentine was convicted of Amanda Lee Scott’s
murder as well as the murder of twenty year-old
Rosalie Ortega in California State Court on
December 19, 1997. He is currently serving two
consecutive life sentences in state prison.
/2 McMasters’ suit was based on the fact that the
Marines issued a waiver allowing Underwood to
enlist in the Corps despite two previous arrests
for rape and also upon the fact that Underwood
was under investigation for a third rape at the
time that Amanda Lee Scott was murdered.
/3 McMasters is precluded from refiling her claim
because the statute of limitations has run.
/4 Rule 4(i)(1) provides that service on the
United States may be effected:

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(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 or to
an assistant United States attorney or clerical
employee designated by the United States attorney
in a writing filed with the clerk of the court or
by sending a copy of the summons and of the
complaint by registered or certified mail ad-
dressed to the civil process clerk at the office
of the United States Attorney 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 . .
. .
Fed. R. Civ. P. 4(i)(1).
/5 Rule 4(i)(3) provides in relevant part:
The court shall allow a reasonable time to serve
process under Rule 4(i) for the purpose of curing
the failure to serve:
(A) all persons required to be served in an
action governed by Rule 4(i)(2)(A), if the plain-
tiff has served either the United States attorney
or the Attorney General of the United States . .
. .
Fed. R. Civ. P. 4(i)(3).
/6 Under Rule 4(m), a plaintiff who has failed to
effect service within the required 120 day period
will be granted an extension "for service for an
appropriate period" upon a showing of good cause.
Fed. R. Civ. P. 4(m).

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