[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 18, 2006
No. 06-11469 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01223-CV-CC-1
DAVID G. TURNER,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 18, 2006)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
David Turner, proceeding pro se, appeals the district court’s dismissal of his
complaint, with prejudice, for failure to comply with a court order. For the reasons
that follow, we vacate and remand.
I. Background
On May, 9, 2005, Turner filed a pro se complaint against the IRS
challenging its failure to grant him a collection-due-process hearing before
imposing a levy against his property. Turner served a copy of the complaint on the
United States Attorney General by registered mail, but failed to include a
summons. In an answer filed on July 6, 2005, the Government raised the
affirmative defense of “insufficiency of process” for failure to serve a summons as
required by Federal Rules of Civil Procedure 4(c)(1) and 4(i)(1). On August 31,
2005, more than 120 days after filing his complaint, Turner sent copies of
unsigned, undated summonses to the district court, the Attorney General, the
United States Attorney for the Northern District of Georgia, and an IRS employee.
He also submitted copies of postal return receipts as proof that all interested parties
had received his complaint.
On November 4, 2005, the district court found that, in violation of Local
Rule 16.2, neither Turner nor the Government had filed preliminary reports and
discovery plans within 30 days after the Government filed its answer.
Consequently district court ordered the parties to file the required statements on or
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before November 18, 2005, or show cause why the case should not be dismissed
for failure to comply with the local rule. The Government complied with the
district court’s order, but Turner did not. On November 23, 2005, the district court
dismissed the case with prejudice under Federal Rule of Civil Procedure 41(b)
citing Turner’s failure to comply with the court’s order. Alleging that he never
received the show-cause order, Turner moved to alter or amend the judgment of
dismissal and asked for an additional 20 days in which to comply. The district
court denied Turner’s motion, finding dismissal was still warranted on the alternate
ground that Turner failed to effect service of process pursuant to Rules 4(c)(1) and
4(i)(1). Turner now appeals.
II. Discussion
Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss
actions with prejudice if the plaintiff fails to comply with any court order, local
rule, or Federal Rule of Civil Procedure. Fed. R. Civ. P. 41(b). We review such
orders for abuse of discretion. Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993)
(citing Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)). “Discretion
means the district court has a range of choice, and that its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake
of law.” Betty K. Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir.
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2005) (internal quotations omitted).
Because dismissal with prejudice is a “drastic” remedy, a district court “may
only implement it, as a last resort, when: (1) a party engages in a clear pattern of
delay or willful contempt (contumacious conduct); and (2) the district court
specifically finds that lesser sanctions would not suffice.” World Thrust Films,
Inc. v. Int’l Family Entm’t, 41 F.3d 1454, 1456 (11th Cir. 1995); see also, Kilgo,
983 F.2d at 192 (citing a line of Eleventh Circuit cases articulating this standard).
“[F]indings satisfying both prongs of our standard are essential before dismissal
with prejudice is appropriate.” Id. at 1339 (citing Mingo v. Sugar Cane Growers
Co-op. of Florida, 864 F.2d 101, 102-03 (11th Cir. 1989)) (emphasis added). Mere
delay or simple negligence will not suffice; dismissal with prejudice “must, at a
minimum, be based on evidence of willful delay.” Kilgo, 983 F.2d at 192-93
(citations and internal quotation marks omitted). And, “[a]lthough we occasionally
have found implicit in an order the conclusion that lesser sanctions would not
suffice, we have never suggested that the district court need not make that finding.”
World Thrust Films, 41 F.3d at 1456 (citations omitted). “This court has only
inferred such a finding ‘where lesser sanctions would have greatly prejudiced’
defendants.’” Id. at 1456 (quoting Kilgo, 983 F.2d at 193 (citations omitted)).
In this case, the district court dismissed Turner’s complaint with prejudice
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on the grounds that he failed to comply with local rules and with a court order.
The district court subsequently denied Turner’s motion to alter that judgment
because it found dismissal was also proper on the alternate ground of insufficient
service of process. We conclude that neither ground justifies dismissal with
prejudice.
A. Improper Service of Process
The district court denied Turner’s motion to alter the judgment of dismissal
with prejudice because it found dismissal was still justified by Turner’s failure to
properly serve the Government as required by Federal Rules of Civil Procedure
4(c)(1) and 4(i)(1). We review a district court’s denial of a motion to alter or
amend the judgment for abuse of discretion. Drago v. Jenne, 453 F.3d 1301, 1305
(2006) (citing Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir. 1998)).
“[T]he plaintiff is responsible for service of a summons and complaint
within the time allowed under subdivision (m).” Fed. R. Civ. P. 4(c)(1). Under
Rule 4(m),
[i]f 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
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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) (emphasis added).
Here, although Turner properly served the complaint on the Attorney
General by certified mail, he did not include a summons, thereby failing to effect
service pursuant to Rule 4. Turner argues that his defective service did not warrant
dismissal with prejudice because: (1) he substantially complied with the service
requirements; (2) his pro se status should have entitled him to a certain degree of
leniency regarding service of process; (3) the Government suffered no prejudice
from the defects in service; and (4) he never knowingly or willfully ignored any of
the district court’s orders. We find that under the circumstances of this case,
Turner’s failure to effect proper service did not justify the “draconian remedy of a
dismissal with prejudice.” Betty K. Agencies, 432 F.3d at 1339.
It bears repeating that “dismissal with prejudice is a drastic sanction that
may be imposed only upon finding a clear pattern of delay or willful contempt and
that lesser sanctions would not suffice.” Id. at 1340 (citations omitted) (emphasis
added). “We rigidly require the district courts to make these findings precisely
because the sanction of dismissal with prejudice is so unsparing, and we strive to
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afford a litigant his or her day in court, if possible.” Id. (citations omitted).
In this case, the district court failed to find that Turner’s defective service
was willful or contumacious. Moreover, the court failed to find that lesser
sanctions were inadequate to correct the defects in service. Indeed, Rule 4(m)
explicitly prescribes a lesser sanction for failure to complete service by requiring
the district court to “dismiss the action without prejudice” or “direct that service be
effected.” Fed. R. Civ. P. 4(m). And although “we occasionally have found
implicit in an order the conclusion that lesser sanctions would not suffice, . . .
“[t]his court has only inferred such a finding ‘where lesser sanctions would have
greatly prejudiced’ defendants.’” World Thrust Films, 41 F.3d at 1456 (quoting
Kilgo, 983 F.2d at 193 (citations omitted)). Yet nothing in the record indicates that
a lesser sanction would have “greatly prejudiced” the Government.
Accordingly, the district court abused its discretion by denying Turner’s
motion to alter the judgment of dismissal with prejudice.
B. Failure to Comply with a Court Order or Local Rule
Even if the district court abused its discretion by finding that dismissal with
prejudice was proper because service was defective, the Government contends that
the district court’s denial of Turner’s motion to alter the judgment was proper
because dismissal was warranted for Turner’s failure to comply with local rules
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and the district court’s show-cause order.
Local Rule 16.1 requires litigants to file discovery plans and preliminary
reports with the district court within 30 days after the defendant has filed an
answer. N.D. Ga. R. 16.1. Federal Rule of Civil Procedure 41(b) allows a district
court to dismiss actions with prejudice if the plaintiff fails to comply with, inter
alia, any court order or local rule. Fed. R. Civ. P. 41(b); Kilgo, 983 F.2d at 192.
And Local Rule 41.3 states that the district court may dismiss a civil action with
prejudice if a plaintiff: (1)“willfully fails to make” or refuses to cause a case to be
made ready for placement on the trial calendar; or (2) after notice, “fail[s] or
refuse[s] to obey a lawful order of the court in the case.” N.D. Ga. R. 41.3A(1)-
(2); see also N.D. Ga. R. 41.3B.
Here, the district court failed to make any findings that Turner’s failure to
comply with the court’s show-cause order “clearly demonstrates” a pattern of
delay or willful contempt. While the Government points to Turner’s conduct in the
underlying tax action, it offers nothing to show a pattern of willful contempt before
the district court, and we cannot infer such from the record. Nor did the district
court make any finding that lesser sanctions would not suffice. Again, we have
“only inferred such a finding ‘where lesser sanctions would have greatly
prejudiced’ defendants.’” World Thrust Films, 41 F.3d at 1456 (citations omitted).
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And because we cannot envision how the Government would have been greatly
prejudiced by a lesser sanction, we refuse to infer such a finding. Hence, the
government’s argument that the district court’s show-cause order implicitly
demonstrated its willingness to consider lesser sanctions is inapposite.
Accordingly, the district court ignored the unambiguous standard governing
dismissals with prejudice, thereby abusing its discretion.
III. Conclusion
For the reasons above, we VACATE and REMAND for further proceedings
consistent with this opinion.
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