Thora Worrell appeals pro se the district court’s order dismissing her Fed.R.Civ.P. 60(b) action. She contends the district court erred in not granting her request for a default judgment. We affirm.
DISCUSSION
Worrell commenced this action by filing an amеnded complaint seeking relief under Rule 60(b) from a 1978 judgment. Pursuant to Fed.R.Civ.P. 4(c)(2)(C)(ii), she sent a copy of the complaint and summons, with a notice and acknowledgment of service, by certified mail to Goodrich’s attorney. The. attorney signed the acknowledgment and mailed it back to Worrеll within the twenty, days specified by that rule.
Worrell thereafter twice sought default judgments, claiming that Goodrich failed to file a responsive pleading to her complaint within the twenty-day period provided by Fed.R.Civ.P. 12(a). The clerk refused to enter default judgments since the twenty-day responsе time provided by Rule 12(a), when measured from the date Goodrich’s attorney signed the acknowledgment, had not expired. Worrell contends that Rule 12(a)’s twenty-day response period begins on the date of receipt of the complaint and summons by counsel. Thus we must decide whethеr Goodrich’s motion to dismiss, filed within twenty days of its acknowledgment of the complaint and summons, but well beyond twenty days from receipt of the comрlaint and summons, satisfied the response requirements of Rule 12(a).
Procеss by mail and acknowledgment was adopted in 1983. Rule 4(c)(2)(C)(ii) provides that a plaintiff may serve a defendant by mail by sending copies of the complaint and summons, together with two copies of a notice and аcknowledgment form. The rule plainly states that service fails unless the defendant returns the signed acknowledgment form. Virtually every court that has еxamined the rule has reached that same interpretation.
E.g., Combs v. Nick Garin Trucking,
Effeсtive mail service under Rule 4(c)(2)(C)(ii) thus depends on the cooperative response of the defendant. That result, as one court notеd, “was not adopted through inadvertence.”
Coldwell Banker & Co. v. Eyde,
That service is not deemed complete until the signed acknowledgment is timely returned supports a conclusion that the twenty-day response period provided by Rule 12(a) does not begin until the acknowledgment is made. The few courts thаt have considered this issue have reached this same conclusiоn.
See, e.g., Blair v. Zimmerman,
No. 86-7037 (E.D.Pa. March 31, 1987) [available on WESTLAW,
Hence we hold that service of process is effective under Rule 4(c)(2)(C)(ii) on the date the acknowledgment is signed (if timely returned) and the twenty-day response time provided by Rule 12(a) commences on that date. Worrell’s request for a default judgment was therefоre premature and properly denied by the court.
See Rust,
AFFIRMED.