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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

LARRY KLAYMAN, et al., )

)Plaintiffs, )

)

v. ) Civil Action No. 1:13-cv-851-RJL

)

BARACK OBAMA, et al., )

)

Defendants. )

____________________________________)

____________________________________

)

LARRY KLAYMAN, et al., ))

Plaintiffs, )

)


)


)

Defendants. )

____________________________________)

____________________________________

)

LARRY KLAYMAN, et al., )

)

Plaintiffs, )

)


)


)

Defendants. )

____________________________________)

DEFENDANT ALEXANDERS MOTION TO QUASH SERVICE AND

THE INDIVIDUAL FEDERAL DEFENDANTS MOTION TO

DISMISS UNDER FEDERAL RULE OF CIVIL PROCEDURE 4(m)

Keith Alexander, a former Director of the National Security Agency, hereby moves to

quash the service on him of the Fourth Amended Complaint in case number 1:13-cv-851. In

Case 1:13-cv-00851-RJL Document 166 Filed 02/19/16 Page 1 of 22

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addition, Alexander and the other six individual federal defendants in case numbers 1:13-cv-851,

1:13-cv-851, and 1:14-cv-92President Barack Obama, former Attorney General Eric Holder,

Senior U.S. District Judge Roger Vinson, Director of National Intelligence James Clapper,

Central Intelligence Agency Director John Brennan, and Federal Bureau of Investigation

Director James Comeyrespectfully request that the Court dismiss them from these cases

pursuant to Federal Rule of Civil Procedure 4(m).

In support of this motion, the individual federal defendants rely on the accompanying

memorandum of law.

Respectfully submitted this 19th day of February 2016,

BENJAMIN C. MIZER

Principal Deputy Asst. Attorney General, Civil Division

RUPA BHATTACHARYYA

Director, Torts Branch

/s/James R. Whitman

JAMES R. WHITMAN (D.C. Bar No. 987694)

Senior Trial AttorneyUnited States Department of Justice

Torts Branch, Civil Division

P.O. Box 7146

Ben Franklin StationWashington, D.C. 20044-7146

Tel: (202) 616-4169

Fax: (202) 616-4314

Attorneys for Barack Obama, Eric Holder, Keith

Alexander, Roger Vinson, James Clapper, John Brennan,and James Comey, solely in their individual capacity


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TABLE OF CONTENTS

Table of Contents ............................................................................................................................. i

Table of Authorities ........................................................................................................................ ii

INTRODUCTION ...........................................................................................................................1

BACKGROUND .............................................................................................................................2

I. Klayman I.............................................................................................................................2

II. Klayman II ...........................................................................................................................4

III.

Klayman III..........................................................................................................................5

ANALYSIS ......................................................................................................................................5

I. The Plaintiffs Have Not Effected Proper, Timely,

Personal Service On The Individual Federal Defendants ....................................................6

II. The Plaintiffs Cannot Establish Good Cause To Extend The Rule 4(m) Deadline ...........11

CONCLUSION ..............................................................................................................................16


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TABLE OF AUTHORITIES

Cases

Anderson v. Gates, 20 F. Supp. 3d 114 (D.D.C. 2013)................................................................... 8

* Battle v. District of Columbia, 21 F. Supp. 3d 42 (D.D.C. 2014) ........................................... 11, 14

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ........... 6

Bogle-Assegai v. Connecticut, 470 F.3d 498 (2d Cir. 2006) ........................................................ 14

* Bryant v. Brooklyn Barbeque Corp.,

130 F.R.D. 665 (W.D. Mo. 1990), affd, 932 F.2d 697 (8th Cir. 1991) ............................... 9, 10

Cornish v. United States, 885 F. Supp. 2d 198 (D.D.C. 2012) ....................................................... 8

Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) ...................................................................... 16

Cruz-Packer v. District of Columbia, 539 F. Supp. 2d 181 (D.D.C. 2008) .................................... 7

Darby v. McDonald, 307 F.R.D. 254 (D.D.C. 2014).................................................................... 13

Gant v. Kant, 314 F. Supp. 2d 532 (D. Md. 2004) ......................................................................... 8

Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013),vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015) ........................................................... 15

Klayman v. Obama, No. 13-851, 2015 WL 6873127 (D.D.C. Nov. 9, 2015),stayed pending appeal, No. 15-5307, 2015 WL 9010330 (D.C. Cir. Nov. 16, 2015)

(per curiam), rehg en banc denied, 805 F.3d 1148 (D.C. Cir. 2015) ..................................... 16

Leonard v. Stuart-James Co., 742 F. Supp. 653 (N.D. Ga. 1990) ............................................ 9, 10

Light v. Wolf, 816 F.2d 746 (D.C. Cir. 1987) ................................................................................. 6

Little v. E. Dist. Police Station, No. WDQ-13-1514, 2014 WL 271628 (D. Md. Jan. 22, 2014) ... 8

* Mann v. Castiel, 681 F.3d 368 (D.C. Cir. 2012) ................................................................... passim

* Mann v. Castiel, 729 F. Supp. 2d 191 (D.D.C. 2010), affd, 681 F.3d 368 (D.C. Cir. 2012) ........ 7

Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) ............................................. 5

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ..................................................................................... 14

Omni Capital Intl v. Rudolf Wolff & Co., 484 U.S. 97 (1987) ...................................................... 5


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Prunte v. Universal Music Group, 248 F.R.D. 335 (D.D.C. 2008) .............................................. 13

Rudder v. Williams, 47 F. Supp. 3d 47 (D.D.C. 2014) ................................................................. 10

Simpkins v. Dist. of Columbia Govt, 108 F.3d 366 (D.C. Cir. 1997) ............................................ 6

Smith v. Maryland, 442 U.S. 735 (1979) ...................................................................................... 15

Smith v. Obama, 24 F. Supp. 3d 1005 (D. Idaho 2014) ................................................................ 15

Stump v. Sparkman, 435 U.S. 349 (1978) ..................................................................................... 14

Toms v. Hantman, 530 F. Supp. 2d 188 (D.D.C. 2008) .................................................................. 8

United States v. Lezdey, No. 12-11486, 2013 WL 704475 (D. Mass. Feb. 26, 2013) .................... 9

Wilson v. Layne, 526 U.S. 603 (1999) .......................................................................................... 15

* Wilson v. U.S. Park Police, 300 F.R.D. 606 (D.D.C. 2014) ..................................................... 6, 13

Wilson-Green v. Dept of Youth Rehab. Servs.,

No. 06-cv-2262, 2007 WL 2007557 (D.D.C. July 9, 2007) ....................................................... 7

Rules

Fed. R. Civ. P. 4(c) ......................................................................................................................... 9

Fed. R. Civ. P. 4(i)(3) ..................................................................................................................... 3

Fed. R. Civ. P. 4(j) ........................................................................................................................ 10

Fed. R. Civ. P. 4(m) ............................................................................................................... passim


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MEMORANDUM IN SUPPORT OF DEFENDANT ALEXANDERS MOTION

TO QUASH SERVICE AND THE INDIVIDUAL FEDERAL DEFENDANTS

MOTION TO DISMISS UNDER FEDERAL RULE OF CIVIL PROCEDURE 4(m)

INTRODUCTION

When the plaintiffs originally filed Klayman v. Obama, No. 1:13-cv-851 (D.D.C.)

(Klayman I), some 988 days ago, they sued several defendants, including: President of the

United States Barack Obama, then-Attorney General Eric Holder, then-National Security Agency

(NSA) Director Keith Alexander, and Senior U.S. District Judge Roger Vinson. In two related

cases, Klayman v. Obama, No. 1:13-cv-881 (D.D.C.) (Klayman II), filed 982 days ago, and

Klayman v. Obama, No. 1:14-cv-92 (D.D.C.) (Klayman III), filed 757 days ago, the plaintiffs

sued these same four defendants plus three more federal officials: Director of National

Intelligence (DNI) James Clapper, Central Intelligence Agency (CIA) Director John

Brennan, and Federal Bureau of Investigation (FBI) Director James Comey. The plaintiffs

have sued these seven individuals in both their official and personal capacities.1 Yet at no time

in the past 32 months have the plaintiffs personally served any of the current and former

government officials with the complaints in which they were initially named as defendants. Nor

have the plaintiffs ever requested an extension of time to do so. Because the plaintiffs have no

1 Insofar as they are sued in their individual capacity, President Obama, former Attorney

General Holder, former NSA Director Alexander, Judge Vinson, DNI Clapper, CIA DirectorBrennan, and FBI Director Comey are collectively referred to as the individual federal

defendants. Insofar as they are sued in their official capacity, these defendants, along with the

federal agency defendants, are collectively referred to as the Government Defendants. Inconjunction with this filing, the undersigned is appearing on behalf of the individual federal

defendants for the sole purpose of moving to dismiss the individual federal defendants due to the

plaintiffs failure to effect proper and timely service of process. This appearance is neither awaiver of service nor a concession that the plaintiffs have properly served the individual federal

defendants. Furthermore, this motion is being filed pursuant to the Courts suggestion at the

most recent status conference on February 12, 2016. For all of these reasons, the individual

federal defendants reserve their right to file a motion to dismiss under Rule 12, Rule 56, or anyother applicable rule, and to raise all other available personal defenses, if the Court were to deny

this motion (and the plaintiffs personally served them).


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excuse for such delay, their belated attempt to effect personal service on Alexander should be

quashed and all of the claims against the individual federal defendants in all three cases should

be dismissed under Federal Rule of Civil Procedure 4(m).

BACKGROUND

I. Klayman I

The original complaint in Klayman Iwas filed on June 6, 2013. See Klayman I,No.

1:13-cv-851, ECF No. 1, Compl. (June 6, 2013) (Klayman IComplaint). The Klayman I

Complaint named as defendants President Obama, former Attorney General Holder, former NSA

Director Alexander, and Judge Vinson, in both their official and individual capacities. Id. at 2.

The deadline for serving these defendants in Klayman I was therefore October 4, 2013. SeeFed.

R. Civ. P. 4(m).

It was not until December 22, 2015, however929 days after the Klayman I Complaint

was filedbefore the plaintiffs first tried to personally serve any of the four individual federal

defendants in that case. That is apparently when an unidentified man showed up at Alexanders

home, rang the doorbell, and asked his wife, who answered the door, to sign for some

documents. Those documents were a summons issued in Klayman Ion June 7, 2013, and a copy

of the Klayman I Fourth Amended Complaint. The Court had granted the plaintiffs leave to file

that Fourth Amended Complaint in an electronic minute order dated September 16, 2015.

As far as we know, the plaintiffs have yet to personally serve the other three individual

federal defendants in Klayman Iwith any kind of summons or any version of the complaint.

More importantly, the plaintiffs did not personally serve anyof the individual federal defendants

with the original Klayman IComplaint within 120 days of that complaint being filed; nor did


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they request (much less receive) this Courts permission to serve that complaint beyond Rule

4(m)s 120-day (now 90-day) time limit.

Nor has plaintiffs counsel ever asked the undersigned about personally serving the

individual federal defendants in Klayman I (or Klayman II or Klayman III, for that matter). That

is despite plaintiffs counsel having the undersigneds name and contact information since the

early days of Klayman Iand being informed explicitly and on numerous occasions of the need,

and the plaintiffs failure, to effect such personal service. The undersigned entered an

appearance in Klayman Ijust six days after the plaintiffs filed the Klayman I Complaint. See

Klayman I,1:13-cv-851, ECF No. 5, Notice of Appearance of James R. Whitman (June 12,

2013). And during the very first status conference in Klayman I(and Klayman II), the

undersigned introduced himself as counsel for the individual federal defendants and stated that

those defendants had not been served. See Klayman I,1:13-cv-851, ECF No. 59, Tr. of Status

Conference, at 3:20-21 (Oct. 31, 2013). That was on October 31, 2013, which was already past

the 120-day deadline in Klayman I (and Klayman II). See id.

A little more than two months after that, on January 10, 2014, the Government

Defendants filed a partial motion to dismiss in Klayman I(and Klayman II). See Klayman I,No.

1:13-cv-851, ECF No. 68 (Jan. 10, 2014). In their brief in support of that motion, they stated:

This motion does not address the Plaintiffs constitutional tort claims against the

individual federal defendants in their personal capacities. Those defendants havenot yet been served with process and so are not properly before the Court. . . .

Indeed, the Court may dismiss the individual federal defendants on the alternative

ground that it has now been approximately 210 days since the Plaintiffs filedthese actions, but they have yet to serve the individual federal defendants, see

Fed. R. Civ. P. 4(i)(3), and have no good cause for their failure to do so, see id.

4(m).

Id. at 13 n.8 (emphasis added).


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Six weeks later, without curing their service deficiencies, the plaintiffs filed a motion for

entry of default judgment against the individual federal defendants in Klayman Ion February 20,

2014. See Klayman I,No. 1:13-cv-851, ECF No. 85 (Feb. 20, 2014). We explained at length in

our opposition brief that, in the 266 days that the case had been pending at that time, the

plaintiffs had not accomplished personal service on the four individual federal defendants in that

case, as Rule 4(i)(3) and the case law require. See Klayman I, No. 1:13-cv-851, ECF No. 88 at

4-10 (Feb. 28, 2014). We further suggested that the Court should dismiss the individual federal

defendants in that case for that reason. See id. at 10-11. The plaintiffs did not address any of

these points in their reply brief, but simply stood by their unsupportable position that there is no

difference in serving government employees in their official and individual capacities. See

Klayman I,No. 1:13-cv-851, ECF No. 92 (Mar. 5, 2014). This Court summarily denied the

Klayman Iplaintiffs motion for entry of default (along with several other motions by the

plaintiffs) in an electronic minute order dated July 30, 2014.

II. Klayman II

The plaintiffs in Klayman IIfiled suit on June 12, 2013, just six days after the Klayman I

Complaint was filed. See Klayman II, No. 1:13-cv-881, ECF No. 1 (June 12, 2013) (Klayman II

Complaint). The Klayman II Complaint named as defendants (among others) President Obama,

former Attorney General Holder, and former NSA Director Alexander in both their official and

individual capacities. The deadline for serving these three individual federal defendants in

Klayman IIwas therefore October 10, 2013. SeeFed. R. Civ. P. 4(m).

The Court granted the plaintiffs leave to file a second amended complaint in Klayman II

on July 30, 2014. That second amended complaint added Judge Vinson, DNI Clapper, CIA

Director Brennan, and FBI Director Comey as defendants in both their official and individual


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capacities. See Klayman II, No. 1:13-cv-881, ECF No. 55-1 (Jan. 30, 2014) (Klayman II

Second Amended Complaint). The deadline for serving those four defendants in Klayman II

was therefore November 28, 2014. SeeFed. R. Civ. P. 4(m).

To our knowledge, the plaintiffs have not served either the Klayman II Complaint or the

Klayman II Second Amended Complaint on any of the individual federal defendants in their

personal capacity, whether within or outside the applicable 120-day window.

III. Klayman III

The original complaint in Klayman III was filed on January 23, 2014. See Klayman III,

No. 1:14-cv-92, ECF No. 1 (Jan. 23, 2014) (Klayman IIIComplaint). The Klayman III

Complaint named all seven of the individual federal defendants. Id. The deadline for serving

those defendants in Klayman IIIwas therefore May 23, 2014. SeeFed. R. Civ. P. 4(m).

To our knowledge, the plaintiffs have never made any attempt to serve the Klayman III

Complaint on any of the individual federal defendants in their personal capacity, whether within

or outside the 120-day window.

ANALYSIS

Service of process, under longstanding tradition in our system of justice, is fundamental

to any procedural imposition on a named defendant. Mann v. Castiel, 681 F.3d 368, 372 (D.C.

Cir. 2012) (quotingMurphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)).

Federal courts therefore lack the power to assert personal jurisdiction over a defendant unless

the procedural requirements of effective service of process are satisfied. Id.(internal quotations

and citation omitted); see Omni Capital Intl v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)

(Before a federal court may exercise personal jurisdiction over a defendant, the procedural

requirement of service of summons must be satisfied.).


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These principles apply equally when the defendant is a federal employee sued personally

underBivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

SeeFed. R. Civ. P. 4(i)(3);Simpkins v. Dist. of Columbia Govt, 108 F.3d 366, 369 (D.C. Cir.

1997) (holding thatBivensdefendants must be served as individuals pursuant to Rule 4(e)). As

this Court itself has said: When an officer or employee of the government is sued in his or her

individual capacity, as is the case here, personal service on the officer or employee is required.

Wilson v. U.S. Park Police, 300 F.R.D. 606, 608 (D.D.C. 2014) (Leon, J.).

The plaintiff bears the burden of establishing that he has properly effectuated service on

all defendants named in the complaint. Id. (citingLight v. Wolf, 816 F.2d 746, 751 (D.C. Cir.

1987)); see Mann, 681 F.3d at 372 (stating that plaintiff has the burden to demonstrate that the

procedure employed to deliver the papers satisfies the requirements of the relevant portions of

Rule 4) (internal quotations and citation omitted). If the plaintiff fails to meet this burden, the

court not only may dismiss the complaint for ineffective service of process, but Rule 4 states

that the court must dismiss an action when the plaintiff fails to serve the defendant within 120

days [of] the complaint being filed. Wilson, 300 F.R.D. at 608.

I. The Plaintiffs Have Not Effected Proper, Timely,

Personal Service On The Individual Federal Defendants

The plaintiffs in these three cases cannot meet their burden of proving proper service

because they have neverpersonally served any of the individual federal defendants with the

complaints in which those defendants were first named. They certainly did not do so within the

120-day window prescribed by Rule 4(m), and they never asked for more time to do so. The

plaintiffs have admitted as much by insisting, contrary to legal authority, that personal service is

not necessary. See Klayman I, No. 1:13-cv-851, ECF No. 92 at 1-3 (Mar. 5, 2014). It plainly is

necessary, though, see Simpkins, 108 F.3d at 369; Fed. R. Civ. P. 4(i)(3), and the plaintiffs


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failure to timely and personally serve the individual federal defendants alone warrants dismissal

under Rule 4(m). Mann v. Castiel, 729 F. Supp. 2d 191, 196 (D.D.C. 2010), affd, 681 F.3d 368

(D.C. Cir. 2012).

At the status conference on February 12, 2016, plaintiffs counsel declared that the

plaintiffs have served the individual federal defendants and that they have the return receipts to

prove it. This presumably refers to the certified mailing return receipts attached to the motion

for entry of default judgment that the Klayman Iplaintiffs filed on February 20, 2014. See

Klayman I,No. 1:13-cv-851, No. 85-1 (Feb. 20, 2014); id. No. 99-1 (Mar. 20, 2014). We

addressed this issue at length in our opposition to that motion, and demonstrated why the return

receipts do not prove personal service on the individual federal defendants in Klayman I. See id.

No. 88 (Feb. 28, 2014). Rather than reproduce that entire discussion here, we respectfully refer

the Court to that brief and will just recap the two most salient points of that discussion for

present purposes.

First, none of the plaintiffs return receipts were signed by the individual federal

defendants themselves or an authorized agent. See id. at 7. Second, the case law is clear that

service by certified mail delivered to and signed for by somebody other than the defendant or the

defendants authorized agentparticularly when it is addressed to the individual defendants

place of employment, as plaintiffs certified mailings wereis ineffective. See Wilson-Green v.

Dept of Youth Rehab. Servs., No. 06-cv-2262, 2007 WL 2007557, *2 (D.D.C. July 9, 2007)

(Leon, J.) (finding service on individual defendants by certified mail inadequate under D.C. law

where it was sent to defendants business address and plaintiff offered no evidence that the

third parties who signed the return receipts were authorized to accept service of process for the

defendants); Cruz-Packer v. District of Columbia, 539 F. Supp. 2d 181, 187 (D.D.C. 2008)


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(finding service on individual defendants by certified mail inadequate under D.C. law where

plaintiff mailed papers to defendants business addresses and presented no evidence that the

papers were delivered to any of the individual defendants or that the people who signed for the

mailings were authorized to receive service of process, as distinct from authorized to receive

mail); Cornish v. United States, 885 F. Supp. 2d 198, 204-05 (D.D.C. 2012) (same);Anderson

v. Gates, 20 F. Supp. 3d 114, 122-23 (D.D.C. 2013) (same); Toms v. Hantman, 530 F. Supp. 2d

188, 191 (D.D.C. 2008) (same as to service under both D.C. and Maryland law);Little v. E. Dist.

Police Station, No. WDQ-13-1514, 2014 WL 271628, *3 (D. Md. Jan. 22, 2014) (same as to

service under Maryland law); Gant v. Kant, 314 F. Supp. 2d 532, 533 (D. Md. 2004) (finding

service on multiple individual defendants by certified mail at the same residential address

effective under Maryland law only as to the defendant signing the return receipt). Moreover,

plaintiffs attempt to serve former NSA Director Alexander at NSA headquarters in Maryland

via certified mail is doubly defective because it was not designated for restricted delivery. See

Little,2014 WL 271628 at *3 (Service by certified mail, not designated for Restricted

Delivery, to an unauthorized agent at a Defendants workplace is not sufficient.); Md. Rule 2-

121(a) (requiring that service by mail be designated as Restricted Deliveryshow to whom,

date, address of delivery).

To all of this it is no answer to say that, at least with respect to Alexander, he was served

personally, on December 22, 2015, with the Klayman I Fourth Amended Complaint within 120

days of September 16, 2015, when the Court granted the plaintiffs leave to file that Fourth

Amended Complaint. First, even if service of the Fourth Amended Complaint were relevant

(which it is not, as we explain in just a moment), the plaintiffs would still bear the burden of

providing proof of proper service in the form of a servers affidavit. See Mann, 681 F.3d at 371.


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Without such proof, it is impossible to determine if the person who handed the documents to

Alexanders wife was qualified to act as a process server. See Fed. R. Civ. P. 4(c);Mann, 681

F.3d at 371, 373 (affirming dismissal on ground that plaintiffs offered no evidence to the district

court to show that the three defendants had been served, much less properly served, even

though defendants acknowledged receiving the summons and a copy of the complaint from

some person but questioned whether they had been properly served).

Second, and far more significantly, service of the Klayman IFourth Amended Complaint

on Alexander does not cure the plaintiffs failure to personally serve the original Klayman I

Complaint on Alexander within the original 120-day time limit that had expired more than two

years earlier. The case law on this point is universal and unequivocal. An amended complaint

adding a new defendant initiates a new 120-day timetable for service upon the added defendant,

but it does not toll the service period as to defendants already named. United States v. Lezdey,

No. 12-11486, 2013 WL 704475, *3 (D. Mass. Feb. 26, 2013) (emphasis added) (collecting

cases). For those defendants who are named in the original complaint, courts considering

whether a plaintiff may serve an amended complaint outside of the 120 day limit have uniformly

held that the amended complaint may not be served unless good cause is shown for the failure to

serve the original complaint within the 120 day period. Bryant v. Brooklyn Barbeque Corp.,

130 F.R.D. 665, 668 (W.D. Mo. 1990) (collecting cases), affd, 932 F.2d 697 (8th Cir. 1991); see

Leonard v. Stuart-James Co., 742 F. Supp. 653, 662 (N.D. Ga. 1990) (Courts that have

addressed the situation, where the original complaint was not served but an amended complaint

was served, have found that service of the amended complaint did not effect service when the

original complaint had not been served.) (collecting cases). The logic of these cases is clear

if an amendment were allowed to substitute for the original for service, plaintiffs would have no


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incentive to serve the original complaint within the 120-day period. Leonard, 742 F. Supp. at

662; see Bryant, 130 F.R.D. at 669 ([I]f a plaintiff who had not shown good cause for failing to

serve a complaint with the 120 day period was allowed to file an amended complaint after that

time period had passed, there would be no incentive to serve the complaint in a timely manner

and the purpose of Fed. R. Civ. P. 4(j) [now Rule 4(m)], to encourage prompt service, would be

emasculated.); cf. Rudder v. Williams, 47 F. Supp. 3d 47, 51-52 (D.D.C. 2014) (Leon, J.)

(holding that unserved complaint does not toll statute of limitations beyond the time allotted by

Rule 4(m) for service, despite subsequent timely service of amended complaint, because

contrary constructionallowing plaintiffs to indefinitely toll statute of limitations by simply

filing complaint, never serving it, and then later filing and serving amended complaint within

120 days of such filingwould defeat the purpose of statutes of limitations).

In the Klayman I Complaint filed on June 6, 2013, the plaintiffs clearly sued Alexander,

who was the NSA Director at the time, in both his official and personal capacities. See Klayman

ICompl. at 2. But they did not serve Alexander (or any of the other individual federal

defendants in Klayman I) personally with the original Klayman I Complaint before October 4,

2013 (or at any time), and did not request additional time to effect such service beyond that

deadline. As we explain immediately below, the plaintiffs (even if they were to make a belated

extension request now) cannot establish good cause for failing to meet that deadline. Thus,

service of the Klayman I Fourth Amended Complaint on Alexander after the 120-day period

had passed does not preserve [the plaintiffs] original cause of action and service of the amended

complaint must be quashed. Bryant, 130 F.R.D. at 669.

As for Klayman II and Klayman III, the plaintiffs have never even suggested that they

everpersonally served anyof the individual federal defendants with anyversion of the


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complaints in those two cases. And their deadlines for doing so have long since passed. In

Klayman II, the plaintiffs had until October 10, 2013, to serve the Klayman IIComplaint on

President Obama, former Attorney General Holder, and former NSA Director Alexander in their

personal capacity; and they had until November 28, 2014, to serve the Klayman II Second

Amended Complaint on Judge Vinson, DNI Clapper, CIA Director Brennan, and FBI Director

Comey in their personal capacity. In Klayman III, the plaintiffs had until May 23, 2014, to serve

the Klayman III Complaint on all seven of the individual federal defendants in their personal

capacity. The plaintiffs missed all of these deadlines, the last of which (November 28, 2014)

expired more than 440 days ago.

II. The Plaintiffs Cannot Establish Good Cause To Extend The Rule 4(m) Deadline

That brings us to the plaintiffs lack of good cause for their failure to effect timely

personal service on the individual federal defendants. Under Rule 4(m), a court may extend the

time to serve a defendant for an appropriate period if the plaintiff can show good cause for

failing to complete service within 120 (now 90) days of when suit was filed. Fed. R. Civ. P.

4(m). A plaintiff bears a heavy burden when attempting to establish good cause for failure to

effect service of process. Battle v. District of Columbia, 21 F. Supp. 3d 42, 45 (D.D.C. 2014).

Simply put, good cause means a valid reason for delay. Mann, 681 F.3d at 375 (internal

quotations, citation, and alteration omitted). It exists only when some outside factor . . . rather

than inadvertence or negligence, prevented service, such as a defendants evasion of service or a

pro seplaintiffs reliance on the U.S. Marshals Service to effect service. Id. at 374 (internal

quotations and citation omitted).

In these three cases, the plaintiffs have nevernot once in more than two and one-half

years of litigation, and despite repeated reminderseven askedthis Court for more time to serve


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the individual federal defendants. Regardless, they cannot show good cause for extending the

Rule 4(m) period to 988 days in Klayman I, or 982 and 569 days in Klayman II, or 757 days in

Klayman III. (And these numbers assume the plaintiffs effected service today, February 19,

2016). The plaintiffs cannot show good cause because the only reason they have for not serving

the individual federal defendants personally is their own dilatoriness.

Mr. Klayman, who is both a plaintiff and a licensed attorney representing his co-plaintiffs

in these cases, has had the undersigneds name and contact information since June 12, 2013. See

Klayman I,No. 1:13-cv-851, ECF No. 5, Notice of Appearance of James R. Whitman (June 12,

2013). Mr. Klayman was aware at least as early as the status conference on October 31, 2013,

that the undersigned represented the individual federal defendants. Id. ECF No. 59, Tr. of Status

Conference, at 3:20-21 (Oct. 31, 2013). Yet Mr. Klayman has never contacted the undersigned

to discuss service on the individual federal defendants. It was pointed out at that same status

conference, which occurred 147 days after Klayman Iwas filed and 141 days after Klayman II

was filed, that the individual federal defendants had not been served. Id. Still the plaintiffs took

no action to either effect personal service or ask for more time to do so. 210 days after Klayman

I was filed and 204 days after Klayman II was filed, the plaintiffs again were reminded, in the

Government Defendants partial motion to dismiss, that the individual federal defendants had not

been served personally. See id. ECF No. 68 at 13 n.8. Still the plaintiffs took no action to either

effect personal service or ask for more time to do so. 266 days after Klayman Iwas filed and

260 days after Klayman II was filed, the individual federal defendants filed an entire brief

devoted exclusively to explaining that they had yet to be served personally. See id. ECF No. 88

at 4-10. Still the plaintiffs took no action to either effect personal service or ask for more time to

do so. 419 days after Klayman I was filed, 413 days after Klayman IIwas filed, and 188 days


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after Klayman III was filed, on July 30, 2014, the Court denied the plaintiffs motion for entry of

default judgment in Klayman Ia motion that was opposed solely on the ground that the

plaintiffs had not personally served the individual federal defendants. Still the plaintiffs took no

action to either effect personal service or ask for more time to do so.

Sitting on their hands in the face of these numerous and explicit warnings, it was not until

the 929th day of Klayman Ithat the plaintiffs made any attempt to personally serve any of the

individual federal defendants in any of these cases. But even that was limited to just one of the

defendants (Alexander) in just one of the cases (Klayman I)and was itself ineffective for the

reasons we have explained. In these circumstances, where the plaintiffs have not employed a

reasonable amount, nay, anyamount, of diligence in accomplishing service for 988 days, at

worst (as in Klayman I), or 569 days, at best (with respect to the Klayman IISecond Amended

Complaint), they cannot show good cause to justify extending the Rule 4(m) time period. Prunte

v. Universal Music Group, 248 F.R.D. 335, 338-39 (D.D.C. 2008); see Wilson, 300 F.R.D. at 609

(Leon, J.) (dismissingBivens claims under Rule 4(m) where plaintiff submitted no evidence that

he has attempted to [e]ffect personal service on the individually named defendants in more

than nine months since plaintiff filed the complaint); see also Mann, 681 F.3d at 376-77

(affirming dismissal under Rule 4(m) where plaintiffs were alerted to their non-compliance with

Rule 4(m) and the potential for dismissal of the case nearly five months earlier but took no

action to remedy their non-compliance and had not been diligent in correcting the service

deficiencies);Darby v. McDonald, 307 F.R.D. 254, 258-59 (D.D.C. 2014) (dismissing case

under Rule 4(m) where plaintiff was put on notice that service was defective when the

government filed its motion to vacate entry of default and to dismiss but she still did not make

any additional efforts to comply with the applicable rules in the five months since being notified


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of the deficient service). Moreover, 988 or 982 or 757 or even 569 days would not be an

appropriate period to give the plaintiffs for serving the individual federal defendants in light of

the plaintiffs complete lack of diligence and failure to even request an extension after being put

on notice repeatedly of their non-compliance with Rule 4, including at a status conference that

took place just a few weeks after the 120-day window had passed for serving the Klayman I and

Klayman IIComplaints. SeeBogle-Assegai v. Connecticut, 470 F.3d 498, 509 (2d Cir. 2006)

(And given that [the plaintiff] also made no effort to show good cause for her failure and never

requested an extension of time during the 600-odd days when the case was pending after she first

learned of the [defendants] objections to service, we hardly think an extension of the 120-day

period, in lieu of dismissal, could have been an extension for an appropriate period.).

That leaves only the possibility of a discretionary extension of the Rule 4(m) period.

Although the D.C. Circuit has indicated that a district court has discretion to extend the time for

effecting service even if a plaintiff fails to show good cause, see Mann, 681 F.3d at 375, such a

discretionary extension is inappropriate when the plaintiffs failure to effect proper service is

the result of inadvertence, oversight, or neglect, and the dismissal leaves the plaintiff in the same

position as if the action had never been filed. Battle, 21 F. Supp. 3d at 45 (quotingMann, 681

F.3d at 376).

Here, the plaintiffsBivensclaims are, quite bluntly, meritless, and the plaintiffs therefore

would be no worse off for having them dismissed for lack of service. President Obama is clearly

entitled to absolute presidential immunity. See generally Nixon v. Fitzgerald, 457 U.S. 731

(1982). Judge Vinson is just as clearly entitled to absolute judicial immunity. See generally

Stump v. Sparkman, 435 U.S. 349 (1978). And former Attorney General Holder, former NSA

Director Alexander, DNI Clapper, CIA Director Brennan, and FBI Director Comey are all


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clearly entitled to qualified immunity if for no other reason than numerous judges of the Foreign

Intelligence Surveillance Court authorized over the past seven years the very surveillance

activities alleged in these cases, not to mention that other courts have disagreed with this Court

and have upheld the constitutionality of the alleged surveillance programs at issue. See Klayman

v. Obama, 957 F. Supp. 2d 1, 18 (D.D.C. 2013) (Through October 2013, fifteen different FISC

judges have issued thirty-five orders authorizing the program.), vacated and remanded, 800

F.3d 559 (D.C. Cir. 2015); id. at 43 (noting novelty of the constitutional issues); id. at 41

(observing that this Courts holding, that the NSAs metadata collection program under Section

215 was likely unconstitutional, was in conflict with other trial courts and with

longstanding doctrine that courts have applied in other contexts);Klayman v. Obama, 805 F.3d

1148 (D.C. Cir. 2015) (Kavanaugh, J., concurring in denial of rehearing en banc) (stating that

the Governments metadata collection program is entirely consistent with the Fourth

Amendment under Smith v. Maryland, 442 U.S. 735 (1979)); Smith v. Obama, 24 F. Supp. 3d

1005, 1007-10 (D. Idaho 2014) (upholding telephony metadata program as consistent with

Fourth Amendment), appeal docketed, No. 14-35555 (9th Cir. Jul 01, 2014); Wilson v. Layne,

526 U.S. 603, 618 (1999) (If judges thus disagree on a constitutional question, it is unfair to

subject police to money damages for picking the losing side of the controversy.).

Finally, as this Court well knows, the plaintiffs have vigorously pursued their

constitutional claims against the Government Defendants, which are identical to those against the

individual federal defendants. See Klayman I,No. 1:13-cv-851, ECF No. 145-1, Fourth Am.

Compl. 49-69 (Sept. 8, 2014); Klayman II, No. 1-13-cv-881, ECF No. 112, Third Am. Compl.

55-75 (Feb. 11, 2016); Klayman III, No. 14-cv-92, ECF No. 1, Compl. 52-72 (Jan. 23,

2014); Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013), vacated and remanded, 800 F.3d


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559 (D.C. Cir. 2015); Klayman v. Obama, No. 13-851, 2015 WL 6873127 (D.D.C. Nov. 9,

2015), stayed pending appeal, No. 15-5307, 2015 WL 9010330 (D.C. Cir. Nov. 16, 2015) (per

curiam), rehg en banc denied, 805 F.3d 1148 (D.C. Cir. 2015). A dismissal of the individual-

capacity claims thus would not itself prejudice the plaintiffs constitutional challenges to the

surveillance activities alleged in these cases (to the extent those challenges have merit). And

since these cases are ultimately about the lawfulness of government programs, plaintiffs attempt

to useBivens and the threat of personal liability to alter government policy is improper on that

basis alone. SeeCorr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (stating thatBivens

action has never [been] considered a proper vehicle for altering an entitys policy).

For all of these reasons, the plaintiffs cannot show good cause, Fed. R. Civ. P. 4(m),

some cause,Mann, 681 F.3d at 376 (internal quotations omitted), or anycause to justify their

failure to effect personal service of the Klayman I Complaint, the Klayman II Complaint, the

Klayman II Second Amended Complaint, or the Klayman III Complaint on the individual federal

defendants for, respectively, 988 days, 982 days, 569 days, or 757 daysand counting. The

Court therefore should dismiss the individual federal defendants under Rule 4(m).

CONCLUSION

In light of the foregoing, the Court should quash the service of the Klayman IFourth

Amended Complaint on Alexander, and dismiss all of the individual federal defendants from

Klayman I, Klayman II, and Klayman III.


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Respectfully submitted this 19th day of February 2016,

BENJAMIN C. MIZER

Principal Deputy Asst. Attorney General, Civil Division

RUPA BHATTACHARYYA

Director, Torts Branch

/s/James R. WhitmanJAMES R. WHITMAN (D.C. Bar No. 987694)

Senior Trial Attorney

United States Department of JusticeTorts Branch, Civil Division

P.O. Box 7146

Ben Franklin Station

Washington, D.C. 20044-7146Tel: (202) 616-4169

Fax: (202) 616-4314

Attorneys for Barack Obama, Eric Holder, Keith

Alexander, Roger Vinson, James Clapper, John Brennan,

and James Comey, solely in their individual capacity


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