Glen Townsend v. Veterans Affairs Regional Office

        USCA11 Case: 19-12838     Date Filed: 07/01/2021   Page: 1 of 5



                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12838
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:18-cv-24569-RNS



GLEN TOWNSEND,

                                                             Plaintiff-Appellant,

                                  versus

VETERANS AFFAIRS REGIONAL OFFICE,

                                                            Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                                (July 1, 2021)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
           USCA11 Case: 19-12838         Date Filed: 07/01/2021     Page: 2 of 5



       Glen Townsend, proceeding pro se, appeals the district court’s sua sponte

dismissal of his complaint for failure to serve the defendant, the “Veterans Affairs

Regional Office.” 1 Townsend also appeals the denial of his motion to reinstate his

complaint. Townsend argues that he properly served the defendant—or should

have been granted an extension to do so—because the Florida Department of

Veteran Affairs was untruthful about the address of the Board of Veterans’

Appeals and he mailed a copy of the complaint to the Board of Veterans’ Appeals

three days after he received a case number.

       We review a district court’s sua sponte dismissal of a complaint for failure to

serve under Rule 4(m) for an abuse of discretion. Richardson v. Johnson, 598 F.3d

734, 738 (11th Cir. 2010) (per curiam). We will affirm unless we conclude that the

district court made a clear error of judgment or applied the wrong legal standard.

Id. While we liberally construe the pleadings of pro se litigants, we still require

conformity with procedural rules. See Albra v. Advan, Inc., 490 F.3d 826, 829

(11th Cir. 2007) (per curiam) (affirming dismissal of pro se litigant’s complaint for

defective service of process).

       We also review for an abuse of discretion the denial of a motion for relief

under Rule 59 or Rule 60. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)



1
  In the complaint, Townsend alleged negligence and an Eighth Amendment violation regarding
the denial of his disability claim based on a diagnosis of rhinitis.
                                             2
          USCA11 Case: 19-12838       Date Filed: 07/01/2021   Page: 3 of 5



(per curiam) (reviewing a Rule 59(e) motion); Rice v. Ford Motor Co., 88 F.3d

914, 918 (11th Cir. 1996) (reviewing a Rule 60(b) motion). “The only grounds for

granting a Rule 59 motion are newly-discovered evidence or manifest errors of law

or fact.” Arthur, 500 F.3d at 1343 (alteration accepted). Under Rule 60(b), district

courts may relieve a party from a judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

evidence; (3) fraud; (4) the judgment is void; (5) the judgment is no longer valid;

and (6) “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). To prevail on

an appeal from the denial of a Rule 60(b) motion, the appellant must demonstrate

that his motion was so compelling that the district court was required to grant

relief. Rice, 88 F.3d at 919.

      To serve a United States agency, a party must serve the United States and

send a copy of the summons and complaint to the agency by registered or certified

mail. Fed. R. Civ. P. 4(i)(2). To serve the United States, a party must send a copy

of the summons and complaint to the civil-process clerk at the U.S. Attorney’s

Office by registered or certified mail, and send a copy of the summons and

complaint to the Attorney General in Washington, D.C., by registered or certified

mail. Fed. R. Civ. P. 4(i)(1).

      Under Rule 4, the plaintiff is responsible for serving a summons with a copy

of the complaint within 90 days. Fed. R. Civ. P. 4(c)(1), (m). A summons must


                                          3
          USCA11 Case: 19-12838        Date Filed: 07/01/2021    Page: 4 of 5



fulfill the requirements of Rule 4(a)(1), including a signature from the clerk. See

Fed. R. Civ. P. 4(a)(1). When a defendant is not served within 90 days of filing of

the complaint, the district court, on motion or on its own after notice to the

plaintiff, must either dismiss the action without prejudice or order that service be

made by a specified time. Fed. R. Civ. P. 4(m). However, if the plaintiff shows

good cause for failure to timely effect service, the district court must extend the

time for service for an appropriate period. Id. A plaintiff may establish good

cause by showing that an outside factor, rather than inadvertence or negligence,

prevented service. Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277,

1281 (11th Cir. 2007). Even if a district court finds that a plaintiff has failed to

show good cause, it must still consider whether any other circumstances warrant an

extension of time based on the facts of the case. Bilal v. Geo Care, LLC, 981 F.3d

903, 919 (11th Cir. 2020). Once the district court has considered such factors, it

may exercise its discretion to either dismiss the action without prejudice or order

service be made within a specified time. Id.

      Here, the district court did not abuse its discretion by dismissing

Townsend’s complaint for failure to effect service. Townsend did not send or

prove by affidavit that he had sent, by certified mail, a copy of the complaint and

the summons to the United States or the defendant, whom he listed as the

“Veterans Affairs Regional Office.” Fed. R. Civ. P. 4(i)(2), (l)(1). Townsend also


                                           4
          USCA11 Case: 19-12838       Date Filed: 07/01/2021   Page: 5 of 5



did not provide the district court good cause for why an extension of time should

be granted. See Fed. R. Civ. P. 4(m). Nevertheless, the district court properly

considered whether there were any factors to warrant an extension of time. Bilal,

981 F.3d at 919. Furthermore, the district court did not abuse its discretion by

denying Townsend’s request to reinstate his complaint following its sua sponte

dismissal, because Townsend never perfected service, paid the filing fee, or

provided a reason to justify relief. See Arthur, 500 F.3d at 1343; Rice, 88 F.3d at

919. Accordingly, we affirm.

      AFFIRMED.




                                          5