Constien v. US, No. 10-6153

Dismissal Based on Failure to Serve Affirmed

In Constien v. US, No. 10-6153, plaintiff's appeal from the dismissal of her suit against the U.S. and several agencies and officials for failure to serve them with process in accordance with Federal Rule of Civil Procedure 4, the court affirmed where the only proper service effected by plaintiff was service by a deputy marshal on a U.S. attorney, but even if plaintiff was a proper person to receive service, no defendant was properly served because service on each required service by mail on the Attorney General, and the only mailing of process to the Attorney General had been by plaintiff herself, not by a nonparty, as required by Rule 4(c).

As the court wrote:  "The United States District Court for the Western District of Oklahoma
dismissed without prejudice Virginia Kaye Constien's suit against the United
States and several agencies and officials for failure to serve them with process in
accordance with Federal Rule of Civil Procedure 4.  Ms. Constien appeals the
dismissal.  The government argues that we lack jurisdiction because the district
court did not set out its final judgment in a separate document.  We hold that we
have jurisdiction under 28 U.S.C. § 1291 and affirm."

Related Resources

• Read the Tenth Circuit's Decision in Constien v. US, No. 10-6153