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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-10573
Non-Argument Calendar
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D.C. Docket No. 1:20-cv-21518-CMA
AKBAR MARVASTI,
Plaintiff-Appellant,
versus
SECRETARY, U.S. DEPARTMENT OF COMMERCE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 9, 2021)
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
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Akbar Marvasti, proceeding pro se, appeals the district court’s dismissal
without prejudice of his pro se second amended employment discrimination
complaint for failure to effect timely service. Although Marvasti primarily argues
the merits of his underlying discrimination claims—which are not properly before
this Court—liberally construing his brief, he also argues that the district court
abused its discretion by dismissing his complaint for lack of service without
considering whether good cause or other factors warranting an extension of time
existed. After review, we vacate and remand for further proceedings consistent
with this opinion.
I. Background
On April 27, 2020, Marvasti filed his second amended complaint against the
then-United States Secretary of Commerce, alleging discrimination by his
employer, the National Oceanic and Atmospheric Administration, based on his
national origin and religion, in violation of Title VII. 1 The district court then
issued an order providing him with instructions on procedures for pro se litigants.
The order advised Marvasti that he was obligated to comply with all Federal Rules
of Civil Procedure, including that he was responsible for ensuring that the
1
The district court had sua sponte dismissed Marvasti’s initial complaint and his first
amended complaint without prejudice for failure to state a claim.
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defendant was served with the summons and complaint under Fed. R. Civ. P. 4(m)
within 90 days after the filing of the complaint.
A few days later, the district court ordered Marvasti to perfect service upon
the defendant, pursuant to Rule 4(m), by July 8, 2020, or show cause why the
action should not be dismissed for failure to perfect service of process. It advised
that failure to file proof of service or show good cause by that date would “result in
a dismissal without prejudice and without further notice.”
On July 13, 2020, the district court sua sponte dismissed the case without
prejudice, finding that “there [was] no indication on the docket that the [d]efendant
ha[d] been served, nor ha[d] [Marvasti] requested additional time to do so.
The same day, Marvasti filed a letter with the district court, stating that on
May 12, 2020, he sent a summons to the Department of Commerce, via U.S. Postal
Service (“USPS”) certified mail, and had requested a return receipt. He stated that
he had not received a return receipt, and he had learned upon calling the district
court to check on his case status that his case had been dismissed for lack of
service. He asserted that he had resent the summons that day again with return
receipt requested, and he urged the court to give him another chance to perfect
service. The following day, Marvasti sent a second letter to the district court
stating that the tracking information for his first summons indicated that it was
delivered on May 15, 2020, even though he never received a return receipt. He
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expressed concern that perhaps the summons had not been received by Department
of Commerce staff because most government agencies were working remotely due
to the COVID-19 pandemic, and he urged the district court to reconsider its prior
dismissal of his case. He attached a printout of the tracking information in support
of his allegations.
The district court denied his motion for reconsideration without prejudice.
The district court acknowledged his letters but stated that it was “unclear whether
[Marvasti] is effectuating service properly, see Fed. R. Civ. P. 4(i), nor does he
explain why he did not seek additional time to serve Defendant.”
Marvasti filed additional requests for reconsideration citing the same issues
and concerns relating to service of process during the pandemic. In one of his
letters, Marvasti indicated that he had successfully served the Department of
Commerce. He submitted a confirmation e-mail he received from the service of
process firm, stating that service had been made on an authorized agent with the
agency, along with a sworn affidavit from the process server. The district court
granted Marvasti’s motion for reconsideration, concluded that it appeared service
had been made within a reasonable time, and reinstated the case.
However, two months later, on November 25, 2020, the district court sua
sponte determined that service had not been perfected because the defendant had
not responded or filed an appearance. The district court explained that Marvasti
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had to serve the United States under Rule 4(i)(1), because he was suing the
Secretary of Commerce in his official capacity. Accordingly, it ordered Marvasti
to “perfect service on [d]efendant and file a return of service by December 23,
2020, failing which the case [would] be DISMISSED without prejudice and
without further notice.”
On December 15, 2020, Marvasti submitted a sworn affidavit from an
employee with Same Day Process Service, Inc., attesting that a copy of the
relevant legal documents had been sent via certified mail to the U.S. Department of
Justice (“DOJ”). A couple of weeks later, the district court sua sponte dismissed
the case without prejudice for lack of service, explaining that sending the summons
and the complaint via certified mail to the DOJ was “insufficient.”
A few days later, Marvasti sent a letter requesting an extension of time to
serve the DOJ, asserting that he had had no alternative but to use certified mail at
the time because the process server company had advised him that it was the only
method through which the DOJ was receiving summons. He averred that the DOJ
had since reopened and that it could be served.
The district court construed Marvasti’s motion for an extension as a motion
for reconsideration and denied it, reiterating that, despite several opportunities,
Marvasti failed repeatedly to serve process over eight months. The court noted
that Marvasti could file a new action because the dismissal was without prejudice,
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and that he could move to set aside the dismissal if there was a statute of
limitations issue.2 Marvasti appealed.
II. Discussion
Marvasti argues that the district court failed to consider whether good cause
or other factors warranting an extension of time were present before dismissing the
complaint.
We review for abuse of discretion a court’s dismissal without prejudice of a
complaint for failure to timely serve a defendant under Federal Rule of Civil
Procedure 4(m), as well as a court’s decision to grant an extension of time under
Rule 4(m). Lepone-Dempsey v. Carroll Cty. Comm’rs,
476 F.3d 1277, 1280 (11th
Cir. 2007).
When a defendant is not served within 90 days of the filing of the complaint,
the district court, “on motion or on its own after notice to the plaintiff[,] must
dismiss the action without prejudice against that defendant or order that service be
made within a specified time.” Fed. R. Civ. P. 4(m). However, “if the plaintiff
shows good cause for the failure, the court must extend the time for service for an
appropriate period.”
Id. “Good cause exists only when some outside factor, such
2
Marvasti subsequently filed another motion for reconsideration, reiterating that he had
served DOJ via certified mail in December. The district court again denied his motion and
emphasized that because the dismissal was without prejudice, and Marvasti could refile the
action. The district court also advised that it would not entertain any additional motions for
reconsideration unless there was a statute of limitations issue.
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as reliance on faulty advice, rather than inadvertence or negligence, prevented
service.” Lepone-Dempsey,
476 F.3d at 1281 (alteration adopted) (quotation
omitted).
Furthermore, we held recently that “even when a plaintiff cannot
demonstrate good cause, the district court 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). “[A] district court may
exercise its discretion to dismiss the case without prejudice or to direct service to
be accomplished within a set time only after it evaluates any factors that may bear
on this determination.”
Id. Where a district court dismisses a case after “finding
that the plaintiff did not demonstrate good cause but before considering whether
the facts of the case justify a permissive extension of the service period,” the
dismissal is “premature.”
Id. Thus, in Bilal, we vacated a dismissal without
prejudice for lack of service and remanded for further proceedings.
Id. at 920. We
explained that even though the district court had given the plaintiff two prior
extensions to serve the defendants, vacatur and remand was warranted because the
dismissal order did “not indicate that the district court evaluated whether any other
circumstances of the case justified a further extension.”
Id. at 919–20. We are
bound by Bilal. See Wascura v. Carver,
169 F.3d 683, 687 (11th Cir. 1999)
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(explaining that under the prior-panel-precedent rule, we are bound to follow a
prior panel decision “regardless or whether we agree with it”).
Accordingly, we must vacate the district court’s dismissal without prejudice
and remand because the district court did not consider whether Marvasti had
shown good cause or whether any facts of the case otherwise justified an additional
extension.
VACATED AND REMANDED.
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