[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 12, 2006
No. 05-13921 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-03327-CV-JEC-1
CARRIE E. ANDERSON,
Plaintiff-Appellant,
versus
OSH KOSH B'GOSH,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 12, 2006)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Carrie E. Anderson appeals pro se the district court’s sua sponte dismissal
without prejudice, pursuant to Fed.R.Civ.P. 4(m), of her civil complaint against her
former employer, Osh Kosh B’Gosh (“Osh Kosh”), alleging employment
discrimination, pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e-2(a), and retaliation, pursuant to 42 U.S.C. § 2000e-3.
Anderson argues on appeal that this dismissal was an abuse of discretion. For the
reasons set forth more fully below, we affirm.
On November 15, 2004, Anderson filed a pro se civil action against Osh
Kosh, alleging that it had (1) discriminated against her because of her race, sex,
and age; and (2) retaliated against her for filing a complaint against her manager.
On December 3, 2004, the magistrate judge issued a “Notice to Pro Se Plaintiffs,”
advising Anderson that she had to comply with the Federal Rules of Civil
Procedure, including serving a summons and a copy of the complaint upon Osh
Kosh within 120 days of filing the complaint. On March 31, 2005, two weeks after
Anderson’s 120-day period for completing service had expired, the district court
directed her to show cause, by April 11, 2005, why it should not dismiss the action
for failure to effect service, pursuant to Rule 4(m).
On April 20, 2005, after Anderson failed to respond to this order, the
magistrate issued a report, recommending that the court sua sponte dismiss
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Anderson’s action for failure to effect timely service. The magistrate also attached
to this report an order instructing Anderson that she had until May 2, 2005, to
object to the report. Osh Kosh also filed a motion to dismiss, pursuant to
Fed.R.Civ.P. 12(b)(4) and (5), arguing that Anderson had failed to effect proper
service on it and, instead, had served Osh Kosh with a different complaint that she
had not filed with the court, in which she was asserting different claims of
discrimination.1
Anderson neither filed objections to the magistrate’s report, nor responded
to Osh Kosh’s motion to dismiss. Instead, on April 26, 2005, she filed a letter with
the court, in which she only addressed the merits of her complaint. On May 25 and
26, 2005, the court adopted the magistrate’s report and dismissed Anderson’s
action without prejudice, pursuant to Rule 4(m). In doing so, the court explained
that, although Anderson had filed a pleading reiterating facts contained in her
original complaint, she had failed to serve Osh Kosh with the complaint.
Within ten business days of the court’s entry of its dismissal order,
Anderson filed a motion for reconsideration, arguing that she had documents
showing that (1) she sent certified letters to Osh Kosh, and (2) someone had
accepted them. Anderson also attached to this motion documents that she claimed
1
Osh Kosh subsequently filed an amended motion to dismiss, clarifying that Anderson
filed her original complaint in November 2004, instead of November 2005.
3
showed that she served Osh Kosh with a complaint, which contained different
claims and was dated April 4, 2005. Osh Kosh responded that Anderson had failed
either to effect timely service, or to show cause for this failure. The district court
summarily denied Anderson’s reconsideration motion.
Anderson argues that the district court erred in sua sponte dismissing her
complaint without prejudice because she alleged multiple claims of employment
discrimination. Anderson, however, has not addressed on appeal whether she
effected timely service of her complaint on Osh Kosh.
As a preliminary matter, to the extent Anderson filed a motion for
reconsideration, “[a] post-judgment motion may be treated as made pursuant to
either Fed.R.Civ.P. 59 or 60—regardless of how the motion is styled by the
movant—depending on the type of relief sought.” See Mays v. U.S. Postal
Service, 122 F.3d 43, 46 (11th Cir. 1997). Because Anderson has failed to
challenge this order on appeal, however, we deem waived any challenges to the
denial of this reconsideration motion. See Access Now, Inc. v. Southwest Airlines
Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (holding that issues not argued in initial
brief are deemed waived).
Although we have not articulated in a published opinion a standard of
review for sua sponte dismissals under Rule 4(m), we review a district court’s
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grant of a motion to dismiss for insufficient service of process, pursuant to
Fed.R.Civ.P. 12(b)(5), “by applying a de novo standard to the law and a clear error
standard to any findings of fact.” Prewitt Enterprises, Inc. v. Organization of
Petroleum Exporting Countries, 353 F.3d 916, 920 (11th Cir. 2003).2 We also
generally review de novo a court’s interpretation of Rule 4 de novo. Id. On the
other hand, we reviewed for abuse of discretion a district court’s dismissal without
prejudice of a plaintiff’s complaint for failure to timely serve a summons and
complaint under the predecessor to Rule 4(m), former Fed.R.Civ.P. 4(j).3 Brown v.
Nichols, 8 F.3d 770, 775 (11th Cir. 1993). Similarly, we review for abuse of
discretion a district court’s decision whether to grant an extension of time to
complete service of process under Rule 4(m). Horenkamp v. Van Winkle And Co.,
Inc., 402 F.3d 1129, 1132-33 (11th Cir. 2005).
2
Rule 12(b)(5) provides that “[e]very defense, in law or fact, to a claim for relief in any
pleading . . . shall be asserted in the responsive pleading thereto . . . except that the following
defenses may at the option of the pleader be made by motion: . . . (5) insufficiency of service of
process . . ..” See Fed.R.Civ.P. 12(b)(5).
3
The former Rule 4(j) provided:
If a service of the summons and complaint is not made upon a defendant within
120 days after the filing of the complaint and the party on whose behalf such
service was required cannot show good cause why such service was not made
within that period, the action shall be dismissed as to that defendant without
prejudice upon the court’s own initiative with notice to such party or upon
motion.
See Fed.R.Civ.P. 4(j) (1992).
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A plaintiff is responsible for serving the defendant with both a summons and
the complaint within the time permitted under Rule 4(m). Fed.R.Civ.P. 4(c)(1).
Under Fed.R.Civ.P. 4(h)(1), a corporation may be served with process by
delivering a copy of the summons and complaint to an officer, managing or general
agent, or the agent authorized to receive service of process. Fed.R.Civ.P. 4(h)(1).
If a plaintiff fails to serve the defendant properly with a summons and a complaint
within 120 days of the plaintiff’s filing of his complaint:
the court, upon motion or on its own initiative after notice to the
plaintiff, 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). “Good cause” exists “only when some outside factor[,] such as
reliance on faulty advice, rather than inadvertence or negligence, prevented
service.” Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991) (discussing “good
cause” under former Rule 4(j)), superseded in part by rule as stated in Horenkamp,
402 F.3d at 1132 n.2.
We have determined that, under the current Rule 4(m), even in the absence
of “good cause,” district courts have the discretion to extend the time for service of
process. See Horenkamp, 402 F.3d at 1132-33. In reaching this determination, we
explained that the Supreme Court, albeit as dicta, discussed in Henderson v. United
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States, 517 U.S. 654, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996), that, under the
current Rule 4(m), “[c]omplaints are not to be dismissed if served within 120 days
or within such additional time as the court may allow.” See Horenkamp, 402 F.3d
at 1132 (quoting Henderson, 517 U.S. at 663, 116 S.Ct. at 1644). Moreover, we
relied on the Advisory Committee’s Notes on Rule 4, in which the Committee
noted that the 1993 amendment to the rule “authorizes the court to relieve a
plaintiff of the consequences of an application of this subsection even if there is no
good cause shown,” and identified as an example of when relief may be justified as
“if the applicable statute of limitations would bar the refiled action, or if the
defendant is evading service or conceals a defect in attempted service.” See
Horenkamp, 402 F.3d at 1132 (citing Fed.R.Civ.P. 4(m), Advisory Committee
Note, 1993 Amendments).
Anderson failed to show that she properly served Osh Kosh, pursuant to
Rule 4(h)(1), within the 120-day period contained in Rule 4(m). The district court
also did not dismiss the action until after it gave Anderson the opportunity to
object to the magistrate’s recommending dismissal. Moreover, although Osh Kosh
demonstrated that it was aware of Anderson’s complaint by filing its motion to
dismiss, a defendant’s actual notice is not sufficient to cure defectively executed
service. See Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir. 1991) (interpreting
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the 120-day period as it appeared in former Rule 4(j)), superseded in part by rule as
stated in Horenkamp, 402 F.3d at 1132 n.2.
To the extent the court did not state whether Anderson had established
“good cause” for the delay, in Brown, we vacated an order dismissing an action
under the former Rule 4(j), when the plaintiff failed to serve the defendants until
seven months after she had filed her complaint, because the district court had not
determined whether the plaintiff’s failure was supported by “good cause.” See
Brown, 8 F.3d at 774-75. Anderson, however, neither requested an extension of
time to complete service, nor explained why “good cause” excused her failure.4
Indeed, in the absence of evidence to the contrary, we presume that the district
court, in dismissing Anderson’s complaint under Rule 4(m), determined that her
failure to timely serve Osh Kosh was not excused by “good cause.” See Burrell v.
Board of Trustees of Georgia Military College, 125 F.3d 1390, 1395 (11th Cir.
4
To the extent Anderson was proceeding without counsel, “[p]ro se pleadings are held to
a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However,
a defendant’s pro se status in civil litigation generally will not excuse mistakes he makes
regarding procedural rules. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980,
1984, 124 L.Ed.2d 21 (1993) (explaining that we “never [had] suggested that procedural rules in
ordinary civil litigation shall be interpreted so as to excuse mistakes by those who proceed
without counsel”); see also Wayne v. Jarvis, 197 F.3d 1098, 1104 (11th Cir. 1999) (holding that
liberal construction of the pleading requirements for pro se litigants does not equate with liberal
deadlines).
8
1997) (explaining that “[t]rial judges are presumed to know the law and to apply it
in making their decisions”).
Accordingly, we conclude that the district court did not commit reversible
error in sua sponte dismissing Anderson’s complaint for failure to effect timely
service of process, pursuant to Rule 4(m). We, therefore, affirm.
AFFIRMED.
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