F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 4 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
LARRY R. EDWARDS,
Plaintiff - Appellant,
No. 02-5096
v. D.C. No. 01-CV-618-EA
(N.D. Oklahoma)
JOHN F. POTTER, Postmaster
General, United States Postal Service,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Plaintiff-Appellant Larry R. Edwards, appearing pro se, appeals the district
court’s dismissal of his employment discrimination action for failure to timely
comply with the procedures for effecting service of process on an agency of the
United States. Fed. R. Civ. P. 4(i) and (m). We have jurisdiction pursuant to 28
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
U.S.C. § 1291, and we affirm.
On August 20, 2001, Mr. Edwards filed a complaint against the Postmaster
General of the United States (“Defendant”) alleging that he was wrongfully
terminated from his position with the United States Postal Service on account of
his race, sex, and age. On February 5, 2002, well beyond the 120-day time limit
for service of process set forth in Fed. R. Civ. P. 4(m), Defendant appeared
specially and moved to dismiss for failure to serve the appropriate entities in
accordance with Fed. R. Civ. P. 4(i). Noting that Mr. Edwards had served neither
the Attorney General of the United States nor the United States Attorney for the
Northern District of Oklahoma, the district court denied the motion to dismiss and
granted Mr. Edwards a 15-day extension within which to comply with Rule 4(i).
Following the expiration of the 15-day period, Defendant once again appeared
specially to request dismissal of Mr. Edward’s action. Instead of granting
Defendant’s motion, the district court again granted Mr. Edwards an additional
15-day extension, noting that although he had filed a return of service as to the
United States Attorney for the Northern District of Oklahoma, the docket sheet
still showed no return of service as to the Attorney General of the United States.
On May 14, 2002, over one month after the previous 15-day extension was
granted, the district court found that Mr. Edwards did not properly serve
Defendant within the additional time granted and dismissed the action without
prejudice pursuant to Rule 4(m).
-2-
In his brief to this court, Mr. Edwards contends that he should be granted a
“continuation” because he has shown the court that he is “trying to go by the
rules.” Aplt. Br. at 3. 1 In his reply brief, Mr. Edwards also argues that he in fact
properly served each of the entities required under Rule 4(i). Defendant contends
that none of the required entities were served with a copy of the complaint.
We review a district court’s dismissal for untimely or improper service of
process for abuse of discretion. See Jones v. Frank, 973 F.2d 872, 872 (10th Cir.
1992). To effect service of process on an agency of the United States or an
officer of the United States acting in an official capacity, the plaintiff must
deliver a copy of the summons and complaint to the United States Attorney for
the district in which the suit is brought and send a copy of the summons and the
complaint by registered or certified mail to both the Attorney General of the
United States and the applicable officer or agency. Fed. R. Civ. P. 4(i)(2)(A).
Under Rule 4(m), if proper service of the summons and complaint is not made
within 120 days after the filing of the complaint, the district court must
1
In his brief, Mr. Edwards also renews his request for appointment of
counsel. In response to his initial request for counsel, the magistrate judge to
whom the matter was referred denied the request on the ground that Mr. Edwards
failed to provide any information to the court that would enable it to conclude
whether counsel should be appointed under the factors outlined Long v.
Shillinger, 927 F.2d 525, 527 (10th Cir. 1991). In so doing, the magistrate judge
stated that the denial was “without prejudice to being reasserted with relevant
information demonstrating the necessity of appointment of counsel.” I. Rec. Doc.
17 at 2. We deny the request for appointment of counsel.
-3-
nonetheless grant an “appropriate” extension of time upon a showing by the
plaintiff of “good cause for the failure.” Fed. R. Civ. P. 4(m); see also Espinoza
v. United States, 52 F.3d 838, 840-841 (10th Cir. 1995). If the plaintiff fails to
show good cause, the district court retains discretion either to: (1) dismiss the
action without prejudice, or (2) direct that service be effected within a specified
time. Id. Rule 4(i)(3) further provides that where there is a failure to serve a
required party in an action governed by Rule 4(i)(2)(A), and the plaintiff has at
least served either the United States attorney or the Attorney General of the
United States, “[t]he court shall allow a reasonable time to serve process under
Rule 4(i) for the purpose of curing the failure to serve.”
After carefully reviewing the parties’ briefs, the district court’s orders, and
the entire record on appeal, we agree with the district court that Mr. Edwards
failed to comply with the rules for serving an official or agency of the United
States within the applicable time period. Moreover, the district court twice
identified the relevant deficiencies and extended the time within which Mr.
Edwards could correct them. Under such circumstances, we cannot say that the
district court abused its discretion in dismissing Mr. Edward’s complaint.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-