Marc Moore v. City of Sedalia etc.

1 The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2935
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Jo Ann Hoffmann, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
United States of America, under * [UNPUBLISHED]
designated authority of agent Hildegard *
Conte Perlstein, agent, Edward E. Hunt, *
III, agent, Air Force Legal Services *
Agency, *
*
Appellee, *
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Submitted: October 23, 2001
Filed: October 26, 2001
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Before WOLLMAN, Chief Judge, HANSEN, and RILEY, Circuit Judges.
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PER CURIAM.
Jo Ann Hoffmann appeals the district court’s 1 dismissal of her Federal Tort
Claims Act (FTCA) action for failure to serve the defendant. We grant her leave to

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appeal in forma pauperis, and we affirm the dismissal, modifying it to be without
prejudice.
We conclude that the district court did not abuse its discretion in dismissing
Hoffmann’s action for insufficient service. See Bullock v. United States, 160 F.3d
441, 442 (8th Cir. 1998) (per curiam) (standard of review). In an FTCA action, the
United States is the real defendant. See 28 U.S.C. § 2679. To serve the United States
properly, Hoffmann had to deliver a copy of the summons and complaint to the U.S.
Attorney’s Office for the district in which the action was brought, as well as to the
Attorney General of the United States. See Fed. R. Civ. P. 4(i). Hoffman served
neither. Because more than 120 days had passed between the filing of the complaint
and the dismissal, the district court could dismiss the action sua sponte; however, the
dismissal should have been without prejudice. See Fed. R. Civ. P. 4(m) (where
service is not timely made, “court . . . shall dismiss the action without prejudice”).
The judgment is affirmed, but the dismissal is modified to be without prejudice.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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