Tina Schingeck v. DENIS R. McDONOUGH, Secretary of Veterans Affairs

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 21, 2023*
Decided November 22, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 23-1457
TINA SCHINGECK,
Plaintiff-Appellant,
v.
DENIS R. McDONOUGH, Secretary of
Veterans Affairs,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 22-CV-373
William E. Duffin,
Magistrate Judge.
O R D E R
Tina Schingeck, a former nurse for the Department of Veterans Affairs, sued her
employer for discrimination. See 42 U.S.C. § 2000e-2. Despite receiving more time for
and instructions on how to serve process, Schingeck failed to do so. A magistrate judge,
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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proceeding with the parties’ consent, 28 U.S.C. § 636(c), permissibly dismissed her case
for lack of service. See F ED. R. C IV. P. 4(m), 12(b)(5). Thus we affirm.
Because Schingeck sued the Secretary of Veterans Affairs in his official capacity,
she had to serve the complaint and summons on both the Secretary’s Department and
the United States within 90 days of filing suit. See F ED. R. C IV. P. 4(i), (m). To serve the
United States, Schingeck needed to send these documents to two places: the United
States Attorney for the Eastern District of Wisconsin (where she sued) and the Attorney
General of the United States. See id.; McMasters v. United States, 260 F.3d 814, 817 (7th
Cir. 2001). The court’s clerk twice sent Schingeck these rules about service.
The case did not proceed as Schingeck expected. The court dismissed her
complaint for failure to state a claim and gave her leave to amend it, which she did. But
by then the 90-day deadline to serve the defendant had passed, see F ED. R. C IV. P. 4(m),
prompting the Secretary to move to dismiss the suit for failure to serve. See F ED. R. C IV.
P. 12(b)(5). He noted that more than six months had elapsed since Schingeck sued and
she had not served process in accord with the Federal Rule of Civil Procedure 4(i)(1),
(2). Among other problems, she never sent the summons and complaint (or amended
complaint) to the United States Attorney or Attorney General. Schingeck opposed the
motion. She explained that she had not followed the clerk’s instructions about service
because she thought that sending the documents as she had to the Department was
enough. She also asked for leave to file a second amended complaint.
The court initially denied the motion to dismiss. It reasoned that the court might
have confused Schingeck when, in an earlier ruling, it invited her to amend her
complaint. Accordingly, it gave her 30 more days to serve the defendants, explained
again how to do so, and told her that it would consider her motion to file a second
amended complaint once she completed service. The court warned her that “failure” to
serve as instructed within 30 days “may result in her case being dismissed.”
After the 30 days passed without service, the Secretary again moved to dismiss.
He argued that Schingeck had still not sent the summons and complaint to the Attorney
General and relevant United States Attorney. The court granted the motion. It observed
that it had told Schingeck how to serve and warned her that failure to do so within 30
days could result in dismissal. It also denied her motion to amend her complaint.
On appeal, Schingeck challenges these rulings. She does not deny that she failed
to complete service; indeed, in her reply brief, she concedes that the court had authority

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to grant the motion to dismiss. Instead, she argues that the court abused its discretion
(the applicable standard of review, Jones v. Ramos, 12 F.4th 745, 749 (7th Cir. 2021)) by
not forgiving her failure to serve. She contends that the rules about service are not
designed for pro se litigants like her. And, she adds, the district court had ruled that she
plausibly alleged discrimination under Title VII. But all litigants who bring plausible
claims, even those proceeding pro se, must follow procedural rules, including service
requirements. See McMasters, 260 F.3d at 818. The court’s clerk explained those rules to
Schingeck twice. And the district court, in granting her a reasonable extension of 30
more days and recognizing her limitations as a pro se litigant, explained them again.
Because those rules were carefully laid out for her, and they are among the lawfully
established requirements “for gaining access to the federal courts,” a court cannot out of
lenience disregard them. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984).
For “in the long run, experience teaches that strict adherence to the procedural
requirements specified by the legislature is the best guarantee of evenhanded
administration of the law.” McNeil v. United States, 508 U.S. 106, 113 (1993) (citing
Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)). Thus, the district court did not abuse its
discretion in dismissing this suit. And, in properly dismissing the suit, it permissibly
denied Schingeck leave to file a second amended complaint.
AFFIRMED

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