Nays v. Slater ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20367
Summary Calendar
CHARLIE B. NAYS,
Plaintiff-Appellant,
versus
RODNEY E. SLATER, SECRETARY DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-1648
October 8, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Charlie Nays appeals from the district court’s
decision granting the motion to dismiss filed by Appellee Rodney
Slater, Secretary of Transportation. The district court based its
decision on Nays’s failure to properly serve the Appellee. Nays
filed this employment discrimination suit on May 16, 2001, but
failed to properly serve the Secretary within the requisite 120-day
time period. On September 20, 2001, the district court entered a
*
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this opinion should not be published and is not precedent except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.
show cause order requiring the plaintiff to file a response
indicating why the case should not be dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 4(m). On October 1,
2001, the plaintiff filed a request for additional time to serve
the defendant, citing as the reason for the delay that “[t]he
employee in the Plaintiff Attorney’s office responsible for
completing service ... was terminated in April, 2001 [and the]
complaint was not served as the result of an office error.” The
district court granted the plaintiff’s request, allowing the
plaintiff until October 5, 2001 to complete service. Appellant
attempted to effectuate service upon Appellee by mailing the
summons and a copy of the complaint to the Department of
Transportation on October 3, 2001. The Department received the
summons and complaint on October 11, 2001.
On November 8, 2001, the U.S. Attorney’s Office sent a letter
to Appellant’s counsel advising her that transmittal of the summons
and complaint to the Department of Transportation did not
constitute complete service of process under Rule 4(i)(1), which
requires that a plaintiff also serve the U.S. Attorney for the
district in which the action was filed. Shortly after, on November
13, 2001, the district court entered a second show cause order,
which directed the plaintiff to file a response to the order no
later than November 23, 2001. Nays filed the response on November
21, 2001, and indicated that “[o]n November 20, 2001, counsel for
the plaintiff telephoned the Assistant United States Attorney
2
assigned to this lawsuit and forwarded another copy of the
Plaintiff’s lawsuit and summons.” Appellee admits that, on
November 26, 2001, service was perfected upon the Department of
Transportation by service upon the U.S. Attorney.
On January 25, 2001, the defendant filed a motion to dismiss
because Nays had failed to perfect service within the 120 day time
limit, and because Nays had failed to pay the filing fee in the
case.1 Nays responded to the motion and paid the filing fee on
February 19, 2001. On February 28, 2002, the district court
granted the defendant’s motion, on the basis that no proof of
service existed apart from Nays’s statement in his response to the
motion that the defendant had been properly served. In its order,
the court explained,
because Plaintiff failed to cause service properly to be
made upon Defendant within 120 days after the filing of
this case, within the enlarged period of time allowed for
such, and even to the present date, and because the
Plaintiff has failed to show good cause to excuse such
failures to effect service upon Defendant, the Court
finds that Defendant’s Motion ... should be granted, and
that Plaintiff has failed to prosecute this case with
minimal diligence in accordance with the Federal Rules of
Civil Procedure.
On appeal, Nays urges that the district court abused its discretion
in granting the motion to dismiss because, contrary to the district
court’s understanding of the case, Nays fully effectuated service
upon the defendant on November 26, 2001.
1
At the time of the suit’s filing, Nays paid the filing fee
with a check, which was subsequently returned for insufficient
funds. The filing fee went unpaid until February 19, 2002.
3
“The district court enjoys a broad discretion in determining
whether to dismiss an action for ineffective service of process.”2
Nays may be correct in his argument that the district court was
operating under the mistaken belief that the plaintiff had not
completed service upon the defendant at the time the defendant
filed the motion to dismiss. However, the district court was
patient with the plaintiff and granted a generous extension.
Service was not perfected within the extended period. That was the
main concern of the district court, and we cannot find that an
abuse of its wide discretion.
AFFIRMED.
2
George v. U.S. Dep’t of Labor, 788 F.2d 1115, 1115 (5th Cir.
1986).
4