Carolyn v. Boston v. John E. Potter , 185 F. App'x 853 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 21, 2006
No. 05-14909 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20532-CV-FAM
CAROLYN V. BOSTON,
Plaintiff-Appellant,
versus
JOHN E. POTTER,
POSTMASTER GENERAL OF
U.S. POSTAL SERVICE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 21, 2006)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Carolyn Boston appeals the district court’s dismissal of her Title VII
complaint for failure to properly serve the defendant, John Potter, Postmaster
General of the United States Postal Service, in a timely manner under Federal Rule
of Civil Procedure 4(m). Boston contends the district court abused its discretion in
dismissing her case and in denying her motion to extend time for service of process
because the statute of limitations prevents her from refiling her case. Boston also
appeals the district court’s denial of her “motion to vacate.” We conclude the
district court did not abuse its discretion, and affirm.
Although we have not articulated a standard of review for sua sponte
dismissals under Rule 4(m), we review 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 Rule 4(j).
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 & Co.,
402 F.3d 1129, 1133 (11th Cir. 2005).
A plaintiff serving the United States or its agencies must deliver a copy of
the summons and the complaint to both the United States Attorney for the district
in which the action is brought and to the Attorney General of the United States.
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Fed. R. Civ. P. 4(i)(1)(A), (B). Additionally, a plaintiff suing an officer or agency
must send a copy of the summons and the complaint by registered or certified mail
to the officer or agency. Fed. R. Civ. P. 4(i)(2)(A). “The plaintiff is responsible
for service of a summons and complaint within the time allowed under subdivision
(m).” Fed. R. Civ. P. 4(c)(1). Rule 4(m) provides:
If 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
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.
“Rule 4(m) grants discretion to the district court to extend the time for service of
process even in the absence of a showing of good cause.” Horenkamp, 402 F.3d at
1132.
In determining whether to exercise its discretion in extending the time for
service of process, a district court may look to whether the applicable statute of
limitations would bar the refiled action, or if the defendant is evading service or
conceals a defect in attempted service. Id. at 1132-1133. However, the running of
the statute of limitations does not require a district court extend the time for service
of process under Rule 4(m). Id. at 1133.
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The district court did not abuse its discretion in denying an extension of time
to serve and in dismissing Boston’s complaint. Boston concedes she did not
comply with the additional service requirements of Rule 4(i)(1). Also, Boston
concedes she did not show good cause for her failure to serve a copy of the
summons and the complaint on the Attorney General and the United States
Attorney pursuant to Rule 4(i)(1)(A), (B).
While the running of the limitations period is a factor the district court may
consider in determining whether to dismiss a complaint under Rule 4(m), the
district court is not required to give this controlling weight. Boston’s argument
that the district court did not consider the limitations period when it dismissed her
suit is based on a misreading of the order. The order dismissed Boston’s action
without prejudice and stated “all pending motions in this case are DENIED as
moot with leave to refile if appropriate.” Because this language related to motions,
it was not necessarily an indication the district court did not consider the
limitations period in dismissing Boston’s suit. Even though Boston did not refer to
the limitations period prior to dismissal, the district court could have taken it into
account before deciding not to exercise its discretion in granting an extension of
time to perfect service.
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Additionally, Boston’s argument the district court abused its discretion
because the Postal Service had actual notice of the suit, and therefore could have
defended it is meritless. Actual notice of a suit does not dispose of the
requirements of service of process. See Manufacturers Hanover Trust Co. v.
Ponsoldt, 51 F.3d 938, 940 (11th Cir. 1995).
Regarding Boston’s “motion to vacate,” she filed the motion within ten days
after the entry of judgment, and we consider this a motion for reconsideration
under Rule 59(e). We review the denial of Boston’s motion to alter or amend
judgment pursuant to Rule 59(e) for an abuse of discretion. Mays v. U.S. Postal
Service, 122 F.3d 43, 46 (11th Cir. 1997).
Boston conceded she could not demonstrate good cause for her failure to
properly serve process in this case. In denying Boston’s motion for
reconsideration, the district court stated it considered Boston’s motion, the Postal
Service’s response, and the pertinent portions of the record. These pleadings,
particularly those filed after the initial dismissal, referenced the fact the limitations
period may have expired. Additionally, although the Postal Service falsely argued
Boston’s complaint tolled the limitations period, Boston’s motion showed the
dismissal of her complaint would result in her claims being barred by the statute of
limitations. Therefore, the district court was again in a position to consider
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whether the limitations period had expired and still chose not to exercise its
discretion in reconsidering its judgment that Boston’s complaint be dismissed. As
the district court was not required to grant an extension of time for Boston to serve
process, it was not required to reconsider its judgment on the issue. Therefore, we
find no abuse of discretion and affirm the decision of the district court to dismiss
Boston’s complaint and her motion for reconsideration.
AFFIRMED.
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