UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-60591
(Summary Calendar)
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ERNEST C. DAVIS,
Plaintiff-Appellant,
versus
CARLTON PRESS CORP; MICHELLE WEBER, President,
Carlton Press, Cor., 11 West 32nd Street, New
York, NY,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Mississippi
USDC No. 2: 96-CV-144-D
June 29, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Ernest C. Davis, proceeding pro se, appeals from the district
court’s dismissal of his complaint pursuant to FED. R. CIV. P. 4(m)
for failure to effect service on the defendants, Carlton Press
Corporation (“Carlton Press”) and Michelle Weber (collectively
“Carlton”). We review the district court’s decision to dismiss for
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
failure to effect timely service only for an abuse of discretion.
See Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993).
Under the district court’s order issued March 6, 1997, Davis
had until May 5, 1997, to effect service of process. On April 30,
1997, Davis submitted a letter to the district court requesting
that service of process be made on Carlton Press through its agent,
Michael E. Schoeman, at an address Davis had obtained from the New
York Department of State. Schoeman acknowledged receipt of process
in a letter to Davis dated May 14, 1997.
Davis submitted Schoeman’s May 14th letter to the district
court in a pleading titled “Motion for Judgment.” In August 1997,
the district court responded by dismissing Davis’ complaint sua
sponte, indicating that “plaintiff has still not yet properly
effectuated service of process upon the defendants.” Because the
record is clear that Davis had in fact effected service by the date
of the district court’s dismissal, we find the dismissal to be an
abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 405, 110 S. Ct. 2447, 2461, 110 L. Ed. 2d 359 (1990) (“A
district court would necessarily abuse its discretion if it based
its ruling on . . . a clearly erroneous assessment of the
evidence.”); Dawson v. United States, 68 F.3d 886, 895-96 (5th Cir.
1995) (same). We therefore vacate the district court’s dismissal
of Davis’ suit and remand for further proceedings consistent with
this opinion.
Further factual development may indicate that Davis did not
effect service before the district court’s original deadline of May
-2-
5, 1997, and had no good cause for failing to do so. Under these
circumstances, the district court may consider reinstating its
dismissal.
VACATED and REMANDED.
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