[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 2, 2007
No. 06-14042 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00043-CV-JTC-3
TINA M. LEPONE-DEMPSEY,
SHANNON M. ALEXANDER,
Plaintiffs-Appellants,
versus
CARROLL COUNTY COMMISSIONERS, et al.,
Defendants,
CITY OF VILLA RICA,
DEAN MADDOX,
OFFICER BRIAN CAMP,
OFFICER ROBERT MULLINAX,
OFFICER JOHN DOE 1, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 2, 2007)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
WILSON, Circuit Judge:
On this appeal, we review a district court’s dismissal without prejudice of
the plaintiffs’ complaint for failure to timely serve the defendants under
Fed.R.Civ.P. 4(m), and the court’s decision to deny a request for an extension of
time to effect service.
BACKGROUND
On April 17, 2003, the appellants/plaintiffs Tina M. Lepone-Demsey and
Shannon M. Alexander filed their complaint pursuant to 42 U.S.C. § 1983, alleging
that the appellees/defendants City of Villa Rica, Dean Maddox, Brian Camp,
Robert Mullinax, and John Does 3-4’s and the Carroll County Sheriff’s
Department violated their constitutional rights. The plaintiffs alleged that the
defendants unlawfully entered and searched their home without a warrant. The
plaintiffs also alleged they were unlawfully arrested and subjected to excessive
force.
2
On July 31, 2003, Leonard Danley (“Danley”), the plaintiffs’ counsel, spoke
with David Mecklin (“Mecklin”), City Attorney for the City of Villa Rica, to
inform him of the lawsuit and ask whether Mecklin would receive copies of the
lawsuit via mail. Danley contends that Mecklin said that he was authorized to
accept service on behalf of the defendants and would waive formal service. On or
about July 31, 2003, Danley mailed Mecklin service copies of the complaint,
summons, and a request for waiver of formal service forms. Mecklin did not return
the waiver of service forms, and the plaintiffs did not attempt to serve the City of
Villa Rica or the individual defendants in any other manner. The defendants did
not file an answer to the complaint.
On December 23, 2003, the defendants filed a motion to dismiss the
complaint for insufficiency of service of process, arguing that dismissal was proper
since the plaintiffs had failed to properly and timely serve the defendants under
both the Federal Rules of Civil Procedure and the Georgia Rules of Civil
Procedure. Under those Rules, the plaintiffs were required to serve the defendants
on or before August 15, 2003. The plaintiffs responded that the defendants’
motion should be denied because Mecklin had agreed to waive formal service. In
the alternative, the plaintiffs requested that the district court grant them an
extension of time to serve the defendants.
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The district court granted the defendants’ motion to dismiss, finding that the
plaintiffs had failed to comply with Rule 4 of the Federal Rules of Civil Procedure.
The district court found that the plaintiffs had not properly served either the City of
Villa Rica or the individual the defendants within the time period allowed, and the
plaintiffs failed to show good cause for their failure. Specifically, the district court
found that the plaintiffs had not shown good cause for their failure to personally
serve the appropriate City official. Therefore, the district court dismissed without
prejudice the plaintiffs’ claims against the City of Villa Rica. The district court
also found that the plaintiffs had failed to show “good cause for: (1) failing to serve
the individual Villa Rica defendants within 120 days of filing their complaint; (2)
their three-month delay in mailing waiver forms to Mecklin; (3) their failure to
attempt to effect personal service upon the individual Villa Rica defendants when
Mecklin did not return the waiver forms; or (4) their failure to ask this Court, in the
three months prior to the Villa Rica defendants’ filing their motion to dismiss, for
an extension of time to serve these defendants.” Therefore, the district court
dismissed without prejudice the plaintiffs’ claims against the individual
defendants.
The plaintiffs filed a motion for reconsideration, again requesting that the
district court allow them an extension of time to serve the defendants to avoid
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being barred from refiling due to the statute of limitations. The district court
denied the plaintiffs’ motion without addressing the effect that the statute of
limitations would have on the plaintiffs’ claims. The plaintiffs were effectively
barred from refiling the action against the defendants because the statute of
limitations had run.1
STANDARD OF REVIEW
We generally review de novo a court’s interpretation of Rule 4 of the Federal
Rules of Civil Procedure. Prewitt Enters., Inc. v. Org. of Petroleum Exporting
Countries, 353 F.3d 916, 920 (11th Cir. 2003). However, we review for abuse of
discretion a court’s dismissal without prejudice of a plaintiff’s complaint for failure
to timely serve a defendant under Rule 4(m). Brown v. Nichols, 8 F.3d 770, 775
(11th Cir. 1993) (stating the standard of review as it applied to the predecessor to
Rule 4(m), former Fed.R.Civ.P 4(j)). We also review for abuse of discretion a
court’s decision to grant an extension of time under Rule 4(m). Horenkamp v. Van
Winkle & Co., 402 F.3d 1129, 1133 (11th Cir. 2005).
1
The plaintiffs’ case against the Carroll County defendants proceeded. Carroll County
Sheriff’s Deputy Philip Wagner filed a motion for summary judgment, which the district court
denied. The defendant Wagner appealed the district court’s order denying his motion for
summary judgment. We affirmed the judgment of the district court. See Lepone-Dempsey v.
Carroll County Comm’rs, 159 Fed. Appx., 916 (11th Cir. Dec. 15, 2005). Thereafter, the
plaintiffs and the remaining defendants entered into a settlement agreement and filed a joint
motion to dismiss all claims against the defendant Wagner.
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DISCUSSION
A plaintiff is responsible for serving the defendant with a summons and the
complaint within the time allowed under Rule 4(m). Fed.R.Civ.P. 4(c)(1). Rule
4(m) requires a plaintiff to properly serve the defendant within 120 days of the
plaintiff filing the complaint. Fed.R.Civ.P. 4(m). Therefore, the plaintiffs were
responsible for properly serving both the City of Villa Rica and the individual
defendants within 120 days after filing their lawsuit. The plaintiffs were required
to serve the City of Villa Rica pursuant to Rule 4(j), because the waiver of service
procedure set forth in Rule 4(d) does not apply to local governments. See
Fed.R.Civ.P. 4(d) (stating that only an individual, a corporation, or an association
are subject to service by waiver).2 Given the plaintiffs’ only attempt to serve the
City of Villa Rica was by the waiver of service procedure, the plaintiffs failed to
properly serve the City of Villa Rica.
The plaintiffs also failed to properly serve the individual defendants within
the 120-day period. While the individual defendants are subject to the waiver
procedure, the individual defendants did not respond to the plaintiffs’ request for
2
Fed.R.Civ.P. 4(d) states:
(2) An individual, corporation, or association that is subject to service under subdivision
(e), (f), or (h) and that receives notice of an action in the manner provided in this paragraph has a
duty to avoid unnecessary costs of serving the summons. . . . If a defendant located within the
United States fails to comply with a request for waiver made by a plaintiff located within the
United States, the court shall impose the costs subsequently incurred in effecting service on the
defendant unless good cause for the failure be shown.
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waiver of service, and the defendant is not required to waive formal service. See
Fed.R.Civ.P. 4(d)(2). We have held that if the defendant fails to respond to service
by mail, the plaintiff must effect personal service pursuant to Rule 4(e). See Mfrs.
Hanover Trust Co. v. Ponsoldt, 51 F.3d 938, 940 (11th Cir. 1995) (citing to
Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir. 1991)), superseded in part by rule
as stated in Horenkamp, 402 F.3d at 1132 n.2. The plaintiffs failed to do so.3
If the plaintiff fails to properly serve the defendant within 120 days, “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) (per curiam) (discussing “good cause” under the
former Rule 4(j)), superseded in part by rule as stated in Horenkamp, 402 F.3d at
1132 n.2. Even in the absence of good cause, a district court has the discretion to
extend the time for service of process. Horenkamp, 402 F.3d at 1132; see
Henderson v. United States, 517 U.S. 654, 663, 116 S. Ct. 1638, 1643, 134 L. Ed.
3
As the district court correctly concluded, the plaintiffs also properly failed to serve the
defendants pursuant to the Georgia Rules of Civil Procedure.
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2d 880 (1996) (recognizing that in the 1993 amendments to the rules, courts have
been accorded the discretion to enlarge the 120-day period even in the absence of
showing good cause).
The district court concluded that the plaintiffs failed to demonstrate good
cause for failing to timely serve the defendants. The district court found that the
plaintiffs “have not shown diligence in their efforts to serve process on [the
defendants] and have failed to comply with Rule 4.” We find that the district court
did not abuse its discretion in making this determination. The plaintiffs failure to
timely serve the defendants was not the fault of some outside factor, such as faulty
advice; rather, the reasons for their failure were due to the plaintiffs’ own
negligence. See Prisco, 929 F.2d at 604. While the plaintiffs might have had good
reason to think that they could rely on Mecklin’s assertion that he would sign and
return the waiver forms, the plaintiffs were responsible for formally serving the
defendants when the waiver forms were not returned.
Absent a showing of good cause, the district court has the discretion to
extend the time for service of process. Horenkamp, 402 F.3d at 1132-33. In
Horenkamp, we stated that the Advisory Note to Rule 4(m) provided some
guidance as to what factors may justify the grant of an extension of time absent a
showing of good cause. Id. Although not an exhaustive list, the Committee
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explained that “[r]elief may be justified, for example, 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.” Fed.R.Civ.P. 4(m), Advisory Committee
Note, 1993 Amendments. Here, the district court’s order denying the plaintiffs’
claims without prejudice effectively barred their claims, because the statute of
limitations had run. The plaintiffs argue that the district court failed to specifically
consider this factor and other factors in determining whether to grant them an
extension of time to perfect service.
To date, we have not specifically stated that a district court must consider
whether any factors warrant an extension of time absent a showing of good cause.
Other circuits have held that if a plaintiff fails to show good cause, the district
court must still consider whether any additional factors, such as the running of a
statute of limitations, would warrant a permissive extension of time. See Panaras
v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341 (7th Cir. 1996); Thompson v.
Brown, 91 F.3d 20, 22 (5th Cir. 1996); Espinoza v. United States, 52 F.3d 838, 841
(10th Cir. 1995); and Petrucelli v. Bohringer & Ratzinger, GMHB,46 F.3d 1298,
1307-08 (3d Cir. 1995). We agree with our sister circuits and hold that when a
district court finds that a plaintiff fails to show good cause for failing to effect
timely service pursuant to Rule 4(m), the district court must still consider whether
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any other circumstances warrant an extension of time based on the facts of the
case. Only after considering whether any such factors exist may the district court
exercise its discretion and either dismiss the case without prejudice or direct that
service be effected within a specified time.
The district court’s decision to dismiss this case without prejudice for failure
to timely effect service was premature, as it did not clearly consider, after finding
that the plaintiffs failed to demonstrate good cause, whether a permissive extension
of time was warranted under the facts of this case. Although the running of the
statute of limitations, which barred the plaintiffs from refiling their claims, does
not require that the district court extend time for service of process under Rule
4(m), it was incumbent upon the district court to at least consider this factor.
Therefore, we reverse the order of the district court and remand the case for
reconsideration in light of this opinion.
REVERSED and REMANDED.
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