Antonio Proctor v. Navka, LLC

Case: 15-12165 Date Filed: 10/22/2015 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 15-12165
Non-Argument Calendar
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D.C. Docket No. 4:14-cv-00144-BAE-GRS

CONNIE JOHNSON,

Plaintiff,

ANTONIO PROCTOR,
WANDA RIVERA,
MARISHA WHITE,

Plaintiffs - Appellants,

versus

NAVKA, LLC,
NAVIKA CAPITAL GROUP, LLC,
NAVEEN C. SHAH,

Defendants - Appellees.

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Appeal from the United States District Court
for the Southern District of Georgia
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(October 22, 2015)
 Case: 15-12165 Date Filed: 10/22/2015 Page: 2 of 3

Before HULL, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:

Plaintiffs Antonio Proctor, Wanda Rivera, and Marisha White appeal the

district court’s dismissal without prejudice of their complaint for failure to serve

the defendants with process within 120 days after the date the complaint was filed

as required by Rule 4(m), Federal Rules of Civil Procedure. Plaintiffs argue that

the district court abused its discretion by dismissing the complaint without

prejudice and by failing to consider whether the statute of limitations would bar

Plaintiffs from refiling. After review, 1 we affirm.

For the first 87 days of the 120-day service period, Plaintiffs appear to have

made no effort at service. With one month remaining, Plaintiffs asked counsel for

the defendants to accept service on the defendants’ behalf. Upon receiving a

prompt refusal, Plaintiffs submitted a service waiver request under Rule 4(d),

Federal Rules of Civil Procedure.2 Three weeks after the 120-day service period

lapsed, Plaintiffs sought an extension of time, which the district court granted.

Five days after the extended deadline and over sixty days after the original

1
We review for abuse of discretion a district court’s dismissal without prejudice under
Rule 4(m), Federal Rules of Civil Procedure. Lepone-Dempsey v. Carroll Cty. Comm’rs, 476
F.3d 1277, 1280 (11th Cir. 2007).
2
Given Plaintiffs’ representations that they sent Rule 4(d) requests in late October and
early November 2014, the defendants’ deadline to respond would have been well after the
original 120-day service period lapsed. See Fed. R. Civ. P. 4(d)(1)(F) (requiring a plaintiff to
give the defendant at least 30 days to respond to a waiver of service request).
2
 Case: 15-12165 Date Filed: 10/22/2015 Page: 3 of 3

deadline, Plaintiffs served two defendants. Later, Plaintiffs served the final

defendant. On the defendants’ motion, the district court dismissed the complaint

without prejudice.

We cannot say that the district court abused its discretion by dismissing the

complaint. In explaining their delay, Plaintiffs failed to show good cause rather

than negligence, see Lepone-Dempsey, 476 F.3d at 1281–82, and the district court

had already granted them one extension of time. The district court also clearly

considered whether the statute of limitations or any other circumstances merited an

extension of time to serve the defendants. See id. at 1282 (“Although the running

of the statute of limitations, which barred the plaintiffs from refiling their claims,

does not require that the district court extend time for service of process under

Rule 4(m), it was incumbent upon the district court to at least consider this

factor.”). Contrary to Plaintiffs’ argument, the district court need not have

examined whether the statute of limitations had in fact run. See id.

AFFIRMED.

3