CHOY, Circuit Judge:
Eric D. Boudette appeals the dismissal of his action for failure to serve the complaint within 120 days after its filing, as required by Federal Rules of Civil Procedure 4(j). Boudette contends that the district court abused its discretion in dismissing his action because he could not show good cause for his failure to comply with Rule 4(j). We affirm.
This is the second time that Boudette has had an action making similar allegations dismissed for failure to comply with Fed.R. Civ.P. 4(j). After his first action was dismissed on January 19, 1989, Boudette lodged a second complaint with the district court on January 25, 1989, and filed a motion for leave to proceed in forma pauperis ("IFP"). On February 24, 1989, the motion for IFP status was granted, and the second complaint was filed. IFP status entitled Boudette, inter alia, to have the United States bear some of the costs of his suit. Under Fed.R.Civ.P. 4(j) and 6(a), service of the complaint was required by June 26, 1989.
Boudette did inform the United States Attorney of the second complaint in April 1989.
On September 6, 1989, the district court denied Boudette's motion for enlargement of time and dismissed the action pursuant to Rule 4(j). The order was filed and judgment was entered on September 11. Boudette filed a timely notice of appeal on October 11, 1989.
In order to avoid dismissal for failure to serve the complaint and summons within 120 days after filing, as prescribed by Fed.R.Civ.P. 4(j), a plaintiff must show "good cause." Fimbres v. United States, 833 F.2d 138, 139 (9th Cir.1987); Fed.R.
As an excuse for his neglect in serving defendants, Boudette contends that he would have timely served the complaint if he had been informed of the February 24, 1989 filing date on the first day in the 120 day period for service. He claims that when he inquired of the district court clerk as to the status of his case, the clerk said he should not bother the court with constant inquiry because he would be notified by mail of the court's orders. Boudette then claims that either the clerk failed to send notice of the filing or that the post office failed to deliver the notice. Thus, Boudette argues that either possibility excuses his neglect because he relied on "the operation of the United States government in accordance with law."
As a preliminary matter we must confront an inconsistency between two statutes defining the duty of officers of the court to effect service of a complaint where the plaintiff is proceeding IFP. 28 U.S.C. § 1915(c) (1988) provides:
Rule 4(c)(2)(B)(i) of the Federal Rules of Civil Procedure provides:
Section 1915 states that the responsibility for service of process, which includes service of a complaint, in IFP actions rests with the officers of the courts. Rule 4(c)(2)(B)(i) states that a United States marshal or other appointed person (officers of the court) shall serve the IFP plaintiff's complaint on request.
We apply the doctrine of expressio unius est exclusio alterius to determine the meaning of Rule 4(c)(2)(B)(i). See Complaint of McLinn, 744 F.2d 677, 683 (9th
Application of this doctrine to Rule 4(c)(2)(B)(i) leads us to the conclusion that an IFP plaintiff must request service of the summons and complaint by court officers before the officers will be responsible for effecting such service. The legislative history of the 1983 amendments to Rule 4(c) supports this restrictive reading. Congress intended these amendments to relieve the marshal of the duty of routinely serving summons and complaints for private parties in civil actions. See 128 Cong. Rec. 30929-31 (1982), reprinted in 28 U.S.C.A. foll. Fed.R.Civ.P. 4, 131-33 (Supp.1990).
When two statutes conflict the general rule is that the statute last in time prevails as the most recent expression of the legislature's will. 2A C. Sands, Sutherland Statutory Construction § 51.02 (4th ed. 1984). 28 U.S.C. § 1915 was enacted in 1948 and last amended in 1979. The current version of Rule 4(c) was enacted in 1983 and last revised in 1987. Thus Rule 4(c) prevails. This conclusion is reinforced by the legislative history of the extensive 1983 revisions of Rule 4(c). The legislature specifically contemplated that its enactment of the 1983 amendments would conflict with prior statutes which imposed the burden of serving process on the marshal in a wider range of situations. The legislature anticipated that the more restrictive provisions of Rule 4(c) would control because it was the statute last in time and because of the express provision of 28 U.S.C. § 2072 that "[a]ll laws in conflict with the [Federal Rules of Civil Procedure] shall be of no further force or effect after such rules have taken effect...." 128 Cong.Rec. 30930-31 (1982), reprinted in 28 U.S.C.A. foll. Fed.R.Civ.P. 4 (Supp.1990).
An IFP plaintiff must request that the marshal serve his complaint before the marshal will be responsible for such service. Boudette did not request service by the marshal and so remained responsible for timely service.
Boudette's sole excuse for his failure to timely serve the complaint is that he did not receive notice of the filing of the complaint, because of the error of either the court clerk or the postal service. In light of the specific facts of this case, we do not think Boudette has shown "good cause" for failing to serve notice in a timely manner. The district court's order of January 19, 1989 dismissing Boudette's first action expressly informed Boudette that he could have the United States marshal serve his complaint rather than make his own arrangements for service. The order also set forth the requirement of Rule 4(j) that complaints be served within 120 days after filing. Boudette's subsequent reliance on the district court clerk and the post office was not reasonable in view of his previous experience and his express knowledge of the option of making the marshal responsible for service of process. Boudette may not now blame the Government for his failure to effect timely service of his complaint.
Aside from Reynolds, none of the other cases cited by defendants involves reliance on the government. Most involve inadvertent error. Townsel v. Contra Costa County, 820 F.2d 319, 320 (9th Cir.1987) (ignorance of Rule 4(j) not "good cause"); United States ex rel. DeLoss v. Kenner Gen. Contractors, Inc., 764 F.2d 707, 709-10 (9th Cir.1985) (no "good cause" where, beyond single attempt to place phone call to defendant, plaintiff did nothing to effect service); Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (no "good cause" where counsel inadvertently forgot deadline imposed by Rule 4(j)). One involves an intentional delay by counsel who wished to postpone pre-trial and discovery deadlines, and another involves a secretary who forgot to mail the summons with the complaint. Fimbres v. United States, 833 F.2d 138, 139 (9th Cir.1987) (intentional delay): Hart v. United States, 817 F.2d 78, 81 (9th Cir.1987) (secretarial error).