IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 8, 2007
No. 07-10284
Summary Calendar Charles R. Fulbruge III
Clerk
JESSE F REECE, SR
Plaintiff-Appellant
v.
COUNTRYWIDE HOME LOANS; COUNTRYWIDE FULL SPECTRUM
LENDING DIVISION
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:06-CV-181
Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jesse F. Reece, Sr. (Reece), proceeding pro se, appeals the dismissal
without prejudice of his complaint for failure to effectuate proper service and
failure to comply with Federal Rule of Civil Procedure 8. We conclude that the
dismissal was erroneous on both grounds and we vacate the judgment and
remand for further proceedings.
*
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should not be published and is not precedent except under the limited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.
No. 07-10284
We construe Reece’s pro se brief liberally. See Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995). Although Reece’s brief focuses on his underlying claims
rather than the district court’s ruling, this court has considered noncompliant
briefs if the appellant has alleged some error by the district court and the
opposing party is not prejudiced. Id. at 524-25. Because of the apparent lack of
prejudice to Countrywide Home Loans, Inc. and Countrywide Full Spectrum
(Countrywide) as well as the straightforward legal and factual analysis
presented, we will consider the merits of the ruling given. See id; see also Price
v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988).
Rule 4(m) of the Federal Rules of Civil Procedure requires dismissal of a
complaint without prejudice if service is not made within 120 days after the
filing of the complaint. FED. R. CIV. P. 4(m). This court reviews a dismissal for
failure to effect timely service of process for abuse of discretion. See Lindsey v.
United States R.R. Retirement Bd., 101 F.3d 444, 445 (5th Cir. 1996).
Countrywide’s motion to dismiss was filed only 67 days after the complaint was
filed and only four days after the court granted Reece leave to proceed in forma
pauperis (IFP), a ruling that required the court to issue and serve process and
to appoint a marshal to effectuate service, albeit upon request by Reece. See 28
U.S.C. § 1915(c) and FED. R. CIV. P. 4(c); Lindsey, 110 F.3d at 445. Further, the
dismissal was only 112 days after Reece filed his original compliant, eight days
shy of the expiration of the 120-day service period. As the 120 days had not run,
the dismissal for lack of service was erroneous.
With respect to the alternative dismissal for failure to comply with Federal
Rule of Civil Procedure 8, the district court likewise erred. Reece’s complaint,
although inartfully drafted, does not warrant dismissal. The complaint alleged
that Countrywide discriminated against Reece on the basis of race in connection
with a loan application; the complaint and accompanying documents identified
the loan application in question; and the complaint and documents specified the
statutory grounds for the allegations. Although Reece’s claims of racial
2
No. 07-10284
discrimination are conclusory and fail to cite supporting facts, see Bell Atl. Corp.
v. Twombly, 127 S.Ct. 1955, 1964 (2007), his pro se status required the court to
give him an opportunity to amend his complaint prior to dismissal. See Jones
v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999).
For the foregoing reasons, the judgment of the district court is VACATED
and this matter is REMANDED for further proceedings consistent with this
opinion.
3