United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-20810
Summary Calendar
SUE A. COLE,
Plaintiff-Appellant,
VERSUS
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
USDC No. 04-CV-4720
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant appeals the dismissal of her case for want
of prosecution and the later denial of her Motion to Vacate the
Order of Dismissal. For the following reasons, we vacate the
district court order dismissing plaintiff’s case for want of
prosecution, and remand the case to the district court 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this opinion should not be published and is not precedent except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.
reinstatement on the docket and for further proceedings.
I.
Plaintiff, Sue Cole, filed an application for Disability
Insurance Benefits and Supplement Security Income. After the
denial of her claims initially and on reconsideration, she received
an administrative hearing. The administrative law judge (“ALJ”)
found that Cole was not disabled. Cole requested relief from the
Appeals Council, which was denied. She then filed a complaint in
federal district court seeking review of the Commissioner’s final
decision pursuant to 42 U.S.C. § 405(g). The district court issued
an order remanding Cole’s case to the ALJ for further
administrative proceedings, concluding that the ALJ’s decision was
not supported by the evidence.
On remand, the ALJ found Cole not disabled, and again, the
Appeals Council denied Cole’s request for review of the ALJ’s
decision. On December 16, 2004, Cole filed a second complaint in
federal district court seeking review of the Commissioner’s
decision. On July 3, 2005, the district court entered an Order of
Dismissal for Want of Prosecution because Cole failed to serve
summons on the defendant within 120 days as required by Federal
Rule of Civil Procedure 4(m). The record does not reflect that the
district court provided notice to Cole, as required by Rule 4(m),
before it dismissed the suit. Cole filed a Motion to Vacate the
Order of Dismissal and for Extension of Time for Service which the
district court denied. The prescriptive period has expired and the
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dismissal effectively ends this action.2
II.
Under Rule 4(m)3 of the Federal Rules of Civil Procedure, if
service of summons and complaint is not made upon a defendant
within 120 days after a complaint is filed, after giving notice
to plaintiff, the court shall dismiss the action without
prejudice or direct that service be effected within a specified
time, provided that if the plaintiff shows good cause for the
failure, the court shall extend the time for service for an
appropriate period. Fed. R. Civ. P. 4(m)(1993). A dismissal
under Rule 4(m) for failure to obtain service of process is
reviewed for an abuse of discretion. Fournier v. Textron Inc.,
776 F.2d 532, 534 (5th Cir. 1985).
Appellant argues, and appellee agrees, that where the
applicable statute of limitations bars future litigation, the
2
See note 3 infra.
3
Federal Rule of Civil Procedure 4(m) provides in relevant
part:
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss
the action without prejudice as to that defendant or
direct that service be effected within a specified
time; provided that if the plaintiff shows good cause
for the failure, the court shall extend the time for
service for an appropriate period.
Fed.R.Civ.P. 4(m)(1993).
3
standard of review for the district court’s dismissal should be
the same as is used when reviewing a dismissal with prejudice.
See Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir.
1976) (cited in Gray v. Fidelity Acceptance Corp., 634 F.2d 223
(5th Cir. 1981))(explaining that “where...the statute of
limitations prevents or arguably may prevent a party from
refiling his case after it has been dismissed, we fail to see how
a dismissal without prejudice is any less severe than a dismissal
with prejudice.” Boazman, 537 F.3d at 213). Cole and the
Commissioner agree that the dismissal of her suit has the effect
of a dismissal with prejudice4 and thus should be reviewed under
a heightened standard of review: dismissal with prejudice is
warranted only where a “clear record of delay or contumacious
conduct by the plaintiff” exists and a “lesser sanction would not
better serve the interests of justice.” Gray, 634 F.2d at 227.
The government did not oppose Cole’s motion in the district
court to reinstate this case to the docket and in this appeal
does not oppose reinstatement in light of: (1) the failure of
the district court to give Cole notice of dismissal and (2) the
district court’s failure to find a clear record of contumacious
4
Cole’s cause of action arises under 42 U.S.C. § 405(g),
which mandates that a plaintiff commence a civil action in
federal district court within 60 days following the mailing of
the Appeals Council’s denial of request for review. 42 U.S.C. §
405(g). Because the district court dismissed Cole’s suit after
the expiration of the 60-day time period, Cole is time-barred
from refiling her suit.
4
conduct by plaintiff.
The record does not support the dismissal under Rule 4(m).
It reveals that the district court did not give notice of its
intent to dismiss for failure to prosecute and the court made no
finding of a clear record of delay or contumacious conduct by
plaintiff, which the record would not support. We therefore
vacate the order of dismissal and remand this case to the
district court with directions to reinstate this case on the
docket.
VACATED and REMANDED.
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