Since service was not accomplished within 120 days after the filing of the complaint, the question becomes whether plaintiffs can show “good cause” why service was not made within 120 days.4
The cause asserted is one of secretarial oversight compounded by secretarial turnover. Plaintiffs’ counsel says that he directed his former secretary to serve the summons and complaint on the debtor and his bankruptcy counsel not later than July 14, 1988, but that she did not do so correctly. During August 1988, that secretary left counsel’s employ and was replaced by another secretary in September 1988 who, through illness, was out of counsel’s office during the months of October and November 1988 and was replaced in December 1988 by a third secretary. Counsel says that it was during a file review with the third secretary that the mistake in failing to serve counsel was discovered.
Upon discovering the defect in service, counsel immediately made a motion for the issuance of an alias summons, which was issued as of course by the clerk’s office.5 Upon receiving service, the defendant filed this motion to dismiss.
None of the excuses asserted by plaintiffs constitute good cause. It is settled in this circuit that misdeeds of employees are chargeable to counsel. Hart v. United States, 817 F.2d 78 (9th Cir.1987). Mistaken assumptions are not good cause. Whale v. United States, 792 F.2d 951 (9th Cir.1986). Inadvertence of counsel is not good cause, Wei v. Hawaii, 763 F.2d 370 (9th Cir.1985), nor is ignorance of Rule 4(j). Townsel v. County of Contra Costa, 820 F.2d 319 (9th Cir.1987).
Closely analogous facts were presented in Hart. That plaintiff needed to serve both the United States Attorney and the Attorney General in Washington, D.C., pursuant to Federal Rule of Civil Procedure 4(d)(4). The United States Attorney was served, but the Attorney General was not.6 The failure to serve one of the two requisite persons was fatal.
These plaintiffs needed to serve both the debtor and the counsel for debtor if the basis for service was to be Bankruptcy Rule 7004(b). It is conceded that one of the two requisite persons was not served. There is no apparent basis for a different result than in Hart.
Counsel argues correctly that dismissal without prejudice pursuant to Rule 4(j) would actually constitute a dismissal with prejudice because refiling would be time barred. That situation pertained in Hart as well. The short answer is that in the Ninth Circuit the meaning of “good cause” is unaffected by the intervention of a time bar that will preclude refiling, notwithstanding that the dismissal is nominally without prejudice. Townsel, 820 F.2d at 320; Hart, 817 F.2d at 81; United States v. Kenner Gen. Contractors, Inc., 764 F.2d 707, 711 n. 5 (9th Cir.1985).
Counsel proffers the same mitigating excuse as in Hart—the secretary who was told to accomplish the mailing did not do so correctly:
Secretarial negligence, if it exists, is chargeable to counsel. See Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1983) (en banc). Thus, these claims at best resolve to inadvertent error, which is not good cause. Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (per curiam). That Hart’s claim is now time-barred
4
The attorney for the plaintiffs has provided an affidavit reciting that his former secretary says that she mailed a copy of the summons and complaint to the debtor (but not to debtor's attorney) within 120 days after the filing of the complaint. The statement is hearsay, and, no hearsay exception having been demonstrated, it is not admissible. Fed.R.Evid. 801(c) and 802.
5
A summons expires if not served within ten days after it is issued. Bankruptcy Rule 7004(f) provides that "[i]f a summons is not timely delivered or mailed, another summons shall be issued and served.”
6
.I am assuming, purely for purposes of comparison, that a copy of the summons and complaint was directed to the debtor in a timely fashion. The debtor has by affidavit denied receiving a summons and complaint. I need make no finding on the point, however, because it would not change the outcome.