Sylvia P. Fimbres Abel Fimbres Frank Armijo, Sr. v. United States

Plaintiffs, Sylvia P. Fimbres, Abel Fim-bres, and Frank Armijo, brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 , et seq. (1982) (the “Act”). The district court dismissed their action without prejudice pursuant to Fed.R.Civ.P. 4(j) for failure to serve the complaint and summons within 120 days after filing their complaint. Plaintiffs timely appeal the dismissal. We affirm.

I.

On May 14, 1985, plaintiffs filed a complaint against the United States under the Act, seeking damages against the Veterans Administration Hospital. Plaintiffs claim that the hospital negligently failed to send medicine to Jake Armijo, who severely injured two people and killed another due to his uncontrolled paranoid-schizophrenic behavior.

On October 15, 1985, five months after the complaint was filed, the district court sua sponte issued an order to show cause why the complaint should not be dismissed pursuant to Fed.R.Civ.P. 4(j) for lack of prosecution. Plaintiffs effected service on the Attorney General on October 22, 1985. The government filed a motion to dismiss the action pursuant to Fed.R.Civ.P. 4(j). After a hearing, the court dismissed…