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Second Circuit Affirms Dismissal of Bivens Action Based upon Improper Service of Process

By Derek Gilna

In a case decided in the United States Court of Appeals for the Second Circuit on August 30, 2010, the court affirmed the district court decision dismissing a Bivens action on the grounds that plaintiffs failed to properly serve process on the United States through service on the Attorney General of the United States by registered or certified mail, as required under Federal Rule of Civil Procedure 4(i). They also held that the district court's obligation to allow the plaintiffs a reasonable time to cure a service failure was satisfied by the defendants notifying plaintiffs of the defective service, which did not constitute waiver of service, and that plaintiffs failed to cure said defect.

Upon a motion for reconsideration by the plaintiffs, the court rejected the plaintiff's argument that the action should not have been dismissed against those defendants who had failed to raise an improper service defense by motion or pleading, concluding that since these defendants did not have the power to waive the requirement of service on the United States, they did not in fact do so. See: Kurzberg v. Ashcroft, 619 F. 3d 176 (2010).

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Related legal case

Kurzberg v. Ashcroft