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Trial Judge at Fault for Dismissing Case Against Defendant Who Was Never Served

By William Vogeler, Esq. | Last updated on

Over a dissent's claim that it was unfair to reopen a four-year-old case, the Ninth Circuit said a trial judge was at fault and not the plaintiff for dismissing the case against a defendant who had never been served.

The U.S. Ninth Circuit Court of Appeals reversed the case because the trial judge improperly dismissed Joseph Gordwin, a former FBI officer, before time for service had expired. Carl West had sued the United States and Gordwin separately, but had not served the FBI agent by the time the government successfully moved to dismiss.

"Gordwin is in the exact same position he was in prior to the district court's error and this ensuing appeal: waiting for West to serve him," Judge Alex Kozinski wrote for the court in West v. United States.

"Manufactured and Coerced"

The civil case arose after West was convicted of robbery and sentenced to 20 years in prison. Gordwin, then an FBI agent, had provided evidence for the prosecution.

Prosecutors later dismissed the case, however, because Gordwin "manufactured and coerced" testimony of various witnesses at trial. West then sued the government and Gordwin, who had been convicted of crimes in another case.

A federal judge in Arizona granted the government's motion to dismiss, and West appealed. The notice of appeal did not identify Gordwin as an appellee, but the brief argued the case against the United States and Gordwin.

Noting that it was a new question in the circuit, the appeals court said failing to name the appellee was not a bar to appeal. They said the notice and brief were the "functional equivalent" of the rules for notice.

"Functional Equivalent"

In addition, the appellate court said the trial judge failed to distinguish between claims against the United States and those against Gordwin when dismissing the case with prejudice.

"It was clear error for the district court to dismiss the claims against Gordwin, who wasn't a party to the case because he hadn't been served and the time for service had not expired," the court said.

Judge Diarmuid O'Scannlain disagreed with the result. He said Gordwin had never been served with the complaint and had no notice of the appeal.

"It is both unfair and inequitable to require, as the majority does, that Agent Gordwin remain exposed to continued litigation, which began four years ago, without notice to him should West eventually decide to provide him with the due process to which he was entitled from the start," the judge said.

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