Paul Morrissey v. Alejandro Mayorkas ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2020 Decided November 9, 2021
No. 20-5024
PAUL S. MORRISSEY,
APPELLANT
v.
ALEJANDRO N. MAYORKAS, SECRETARY, U.S. DEPARTMENT
OF HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01956)
No. 20-5042
KELLY STEPHENSON,
APPELLANT
v.
PETE BUTTIGIEG, SECRETARY, U.S. DEPARTMENT OF
TRANSPORTATION,
APPELLEE
2
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02256)
Andrew T. Tutt argued the cause for appellant Paul S.
Morrissey. With him on the briefs were Allon Kedem and Kyle
Lyons-Burke.
Matthew S. Hellman was on the briefs for amicus curiae
Professors of Civil Procedure in support of appellants Paul S.
Morrissey and Kelly Stephenson.
Kyle Lyons-Burke argued the cause for appellant Kelly
Stephenson. With him on the briefs were Allon Kedem and
Andrew T. Tutt.
Matthew J. Glover, Counsel to the Assistant Attorney
General, U.S. Department of Justice, argued the causes for
appellees. With him on the briefs were R. Craig Lawrence and
Jane M. Lyons, Assistant U.S. Attorneys.
Before: MILLETT and RAO, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
Dissenting opinion filed by Circuit Judge MILLETT.
RAO, Circuit Judge: These two cases raise a common
question: if a plaintiff fails to properly serve the United States
and the statute of limitations has run, is it an abuse of discretion
for a district court not to grant an extension of time to effectuate
3
service? In each case a federal employee sought to sue his
federal agency for discrimination but failed to properly serve
the United States in a timely manner under Federal Rules of
Civil Procedure 4(i) and (m). The cases were dismissed without
prejudice, but the plaintiffs were out of luck because the statute
of limitations had expired.
The plaintiffs argue on appeal that the failure to grant an
extension of time in these circumstances exceeds the district
court’s discretion and that this court should review the
dismissals under a heightened standard because when the
statute of limitations has run, a dismissal is effectively with
prejudice. We disagree. When a plaintiff has otherwise not
demonstrated good cause for failing to effectuate service, the
running of the statute of limitations does not require a district
court to extend the time for service of process, nor does it
require appellate review under a heightened standard. Neither
plaintiff demonstrated good cause, and dismissal of these
complaints under Rule 4(m) was within the broad discretion of
the district court.
I.
Under Federal Rule of Civil Procedure 4 (“Rule 4”), to sue
an agency of the United States, a plaintiff must serve the
agency and the United States. 1 FED. R. CIV. P. 4(i)(2). To serve
1
Rule 4(i) provides the requirements for “Serving the United States
and Its Agencies, Corporations, Officers, or Employees.” As
relevant, Rule 4(i) states:
To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the
complaint to the United States attorney for the
district where the action is brought … or (ii) send a
4
the United States, a plaintiff must serve a summons and the
complaint on the U.S. Attorney for the district where the action
is brought and the U.S. Attorney General. FED. R. CIV. P.
4(i)(1). Rule 4 provides ninety days to complete service, and it
instructs that “[i]f a defendant is not served within 90 days after
the complaint is filed, the 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).
In the first case, Paul Morrissey alleged age discrimination
against his former employer, the Department of Homeland
Security, in an official capacity suit against the Secretary of the
Department. Morrissey filed his complaint on June 28, 2019,
and therefore was required to complete service by September
26, 2019. Two weeks prior to the deadline, the district court
published a minute order reminding Morrissey of his service
responsibility. The district court cited Rule 4(m) and “ordered
that, by no later than September 26, 2019, [Morrissey] must
copy of each by registered or certified mail to the
civil-process clerk at the United States attorney’s
office; (B) send a copy of each by registered or
certified mail to the Attorney General of the United
States at Washington, D.C.; and (C) if the action
challenges an order of a nonparty agency or officer
of the United States, send a copy of each by
registered or certified mail to the agency or
officer. … To serve a United States agency or
corporation, or a United States officer or employee
sued only in an official capacity, a party must serve
the United States and also send a copy of the
summons and of the complaint by registered or
certified mail to the agency, corporation, officer, or
employee.
FED. R. CIV. P. 4(i)(1)–(2).
5
either cause process to be served upon the Defendant and file
proof of service with the Court or establish good cause for the
failure to do so.” Morrissey Appendix (“M.A.”) 1. The district
court also warned that “[f]ailure to make such filings will result
in dismissal of this case.” Id. Despite this reminder, Morrissey
did not file proof of service by the deadline. Nor did he seek an
extension of time to complete service or attempt to show good
cause for failing to complete service in a timely manner.
On September 30, the district court dismissed the case
without prejudice pursuant to Rule 4(m), noting that it had
previously reminded Morrissey of his service obligation.
Morrissey immediately filed a motion to reinstate the case,
claiming that dismissal was not appropriate because he had
timely completed service on the agency. In support, he attached
an affidavit and a printout from the U.S. Postal Service’s
tracking portal indicating the Department of Homeland
Security was served on September 16. Morrissey stated he was
not requesting additional time to effectuate service.
The district court denied Morrissey’s motion, explaining
that although Morrissey properly served the Department of
Homeland Security, “[t]here is no proof” he also served the
United States, which required serving both the U.S. Attorney
and the Attorney General. M.A. 31. The district court
concluded that Morrissey had not shown good cause for his
failure to comply with Rule 4’s service requirements because
it is not good cause to misunderstand the law or to be ignorant
of it. Moreover, the court determined that Morrissey qualified
6
for neither a mandatory extension of time under Rule
4(i)(4)(A) 2 nor a discretionary extension.
Morrissey then filed a Rule 59(e) motion urging the court
to set aside its judgment, reinstate his complaint, and grant him
a twenty-day extension to serve the complaint and file proof of
service. Morrissey asserted that, because the statute of
limitations had run and he was unable to refile the case, the
court’s dismissal without prejudice was in effect a dismissal
with prejudice, so denying reinstatement of his case resulted in
manifest injustice. The district court denied Morrissey’s
motion because it included only new, yet previously available,
arguments. The court concluded that “relief under Rule 59(e)
is improper” because “‘[it] is not a vehicle to present a new
legal theory that was available prior to judgment.’” M.A. 61
(quoting Patton Boggs LLP v. Chevron Corp., 683 F.3d 397,
403 (D.C. Cir. 2012)). Morrissey timely appealed.
In the second case, Kelly Stephenson alleged age and
disability discrimination against his former employer, the
Department of Transportation, in an official capacity suit
against the Secretary of the Department. As explained above,
Rule 4 required Stephenson to serve a summons and the
complaint on the agency as well as the United States, which
here required service on the U.S. Attorney for the District of
Columbia and the Attorney General. Stephenson filed his
complaint on July 29, 2019, and accordingly had to file proof
2
“The court must allow a party a reasonable time to cure its failure
to … serve a person required to be served under Rule 4(i)(2), if the
party has served either the United States attorney or the Attorney
General of the United States.” FED. R. CIV. P. 4(i)(4)(A).
7
of service by October 27, 2019. See FED. R. CIV. P. 4(i), (l), &
(m).
Several weeks after the deadline to complete service, the
district court issued a minute order noting that although it
“received proof of service for the agency, the docket does not
reflect service on the Attorney General of the United States or
the U.S. Attorney’s Office,” as required by Rule 4. Stephenson
Appendix (“S.A.”) 1. The court provided an additional two
weeks to perfect service, explicitly ordering Stephenson to file
proof of service on the Attorney General and U.S. Attorney by
December 4, 2019, and warning that the failure to comply may
result in dismissal without prejudice.
Before the extended deadline, Stephenson filed an
affidavit stating the summons and complaint were sent to the
agency by certified mail on December 2, 2019. He attached a
certified mail receipt and a U.S. Postal Service tracking
printout in support of his affidavit. The affidavit made no
mention of service on the Attorney General or the U.S.
Attorney.
After the extended deadline had passed, the district court
dismissed the case without prejudice pursuant to Rule 4(m).
The court’s minute order explained that Stephenson had failed
to serve the United States—the Attorney General and the U.S.
Attorney—by the deadline imposed by Rule 4(m) and had not
shown good cause for his failure. Nor did Stephenson comply
with the court’s order granting an extension and specifically
directing Stephenson to file proof of service on the Attorney
General and the U.S. Attorney.
Stephenson moved for reconsideration of the order of
dismissal under Rule 60(b), alleging that “a clerical error
prevented Defendant from being served properly.” S.A. 24. In
8
addition, he argued that even if the district court determined he
does not have good cause for the failure to effectuate service,
it should grant him a discretionary extension. Stephenson
asserted he “would suffer substantial harm should this case be
dismissed as his claim would become time-barred.” S.A. 25
(cleaned up). Without further detail, he also asserted that he
“showed diligence in attempting to effectuate service twice.”
S.A. 26. Stephenson urged the court to reinstate the case and
grant a sixty-day extension for him to complete service.
The district court denied Stephenson’s motion for
reconsideration. Stephenson brought his motion under Rule
60(b), but the court also evaluated the motion under Rule 59(e)
because it was filed within the time frame for such a motion.
The court found Stephenson’s explanation for failing to serve
the Attorney General and U.S. Attorney to be unreasonable and
determined that he failed to show either manifest injustice as
necessary for relief under Rule 59(e) or excusable neglect to
merit relief under Rule 60(b). As the district court noted, “the
[c]ourt can fathom no excusable reason why Stephenson failed
to effectuate service with the benefit of the [c]ourt’s express
instructions.” S.A. 34. Stephenson timely appealed.
II.
Both Morrissey and Stephenson sued a federal officer in
his official capacity, which requires serving the officer as well
as the United States. To serve the United States, a plaintiff must
serve the Attorney General and the U.S. Attorney for the
district where the action is brought, which in both cases is the
District of Columbia. FED. R. CIV. P. 4(i)(1)(A)–(B). Service of
process is an important requirement that serves as “a ritual that
marks the court’s assertion of jurisdiction over the lawsuit.”
Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (cleaned
up); see also Murphy Bros., Inc. v. Michetti Pipe Stringing,
9
Inc., 526 U.S. 344, 350 (1999) (explaining that “under
longstanding tradition in our system of justice,” “[s]ervice of
process … is fundamental to any procedural imposition on a
named defendant”).
Because federal agencies are generally represented by the
Department of Justice in litigation, the specific requirements
for service on the United States provide notice to the officials
who will be litigating the claims. Cf. Light v. Wolf, 816 F.2d
746, 750 (D.C. Cir. 1987). Rule 4’s requirement to serve the
Attorney General, the head of the Department of Justice, as
well as the relevant U.S. Attorney, the local component of the
Department, ensures the Department has notice and is able to
provide a defense consistent with the broader goals of the
government.
Service must be completed within ninety days of filing the
complaint. FED. R. CIV. P. 4(m). If a plaintiff fails to effectuate
service, “the 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.” Id. Rule 4(m) provides that district courts have
discretion when determining whether to dismiss for failure to
timely effect service. See Mann, 681 F.3d at 375–76. “If the
plaintiff shows good cause for the failure,” however, a court
“must extend the time for service for an appropriate period.”
FED. R. CIV. P. 4(m).
Under well-established precedent, we review a district
court’s dismissal under Rule 4(m) for abuse of discretion. See
Mann, 681 F.3d at 375. “[T]he abuse of discretion standard
means that the district court has a range of choice, and that its
decision will not be disturbed as long as it stays within that
range and is not influenced by any mistake of law.” United
States v. Volvo Powertrain Corp., 758 F.3d 330, 345 (D.C. Cir.
10
2014) (cleaned up). “[W]e may not substitute our judgment for
that of the trial court, so we cannot decide the issue by
determining whether we would have reached the same
conclusion.” Standing Rock Sioux Tribe v. U.S. Army Corps of
Eng’rs, 985 F.3d 1032, 1053 (D.C. Cir. 2021) (cleaned up).
Abuse of discretion is a particularly high bar “where the court
is simply exercising its judgment about whether to relieve a
party from an unexcused (i.e., no good cause) failure to comply
with the [R]ules.” Troxell v. Fedders of N. Am., Inc., 160 F.3d
381, 383 (7th Cir. 1998).
Both Morrissey and Stephenson maintain the district court
should have applied a heightened standard before dismissing
their claims because the dismissals would in essence be with
prejudice and thus justified only “after less dire alternatives
have been explored without success.” Morrissey Br. 29
(citation omitted); accord Stephenson Br. 29. They also invoke
an out-of-circuit case to argue that “where ‘the applicable
statute of limitations likely bars future litigation,’ … the
propriety of a Rule 4(m) dismissal should be judged according
to ‘the same heightened standard’ used for other ‘dismissal[s]
with prejudice.’” Morrissey Br. 29 (quoting Thrasher v. City of
Amarillo, 709 F.3d 509, 512 (5th Cir. 2013)); Stephenson Br.
30 (same). We decline to apply a heightened standard or cabin
the district court’s broad discretion to manage its docket. 3
3
The dissent agrees with Morrissey and Stephenson that we should
impose the heightened standard from the Fifth Circuit’s cases and
treat these dismissals as “effectively” with prejudice. The dissent
argues that under this “rule” the district courts would have abused
their discretion as a matter of law; but we have never adopted such a
rule. The dissent offers no compelling reason for us to change the
law of this Circuit by adopting a rule that has been on the books for
50 years in the Fifth Circuit without being adopted by any other. See
Pond v. Braniff Airways, Inc., 453 F.2d 347, 348–49 (5th Cir. 1972)
11
Neither the text of the Federal Rules of Civil Procedure nor our
precedents suggest a reason to deviate from the ordinary
standard in these circumstances.
Reviewing for abuse of discretion, we take each plaintiff’s
appeal in turn.
III.
Morrissey claims the district court erred by (1) failing to
grant him either a discretionary or mandatory extension to cure
service before dismissing the complaint; (2) denying his
subsequent motion to reinstate the case; and (3) denying his
Rule 59(e) motion for reconsideration. We find no abuse of
discretion in the district court’s rulings.
A.
Morrissey argues the district court should have exercised
its discretion to provide an extension to cure service before
dismissing his complaint. Two weeks prior to the service
deadline, the district court ordered Morrissey to, by the
(setting forth the Fifth Circuit’s rule that dismissals without
prejudice when the statute of limitations has run must be treated as
dismissals with prejudice).
Adopting this rule in this case is particularly inappropriate
because of the parties’ failure to brief it adequately below. Morrissey
did not argue for the Fifth Circuit’s heightened standard until his
motion for reconsideration, but “Rule 59(e) is not a vehicle to present
a new legal theory that was available prior to judgment.” Patton
Boggs, 683 F.3d at 403. Stephenson made only a cursory attempt to
argue for the heightened standard—failing to cite any Fifth Circuit
cases—and also made the argument only in his motion for
reconsideration.
12
deadline, “cause process to be served upon the Defendant and
file proof of service with the Court or establish good cause for
the failure to do so.” M.A. 1. Notably, the court warned
Morrissey that if he did not follow this order, it would dismiss
his case. Morrissey failed to provide proof of service, show
good cause, or request an extension. After the deadline had
passed, Rule 4(m) authorized the district court to either
“dismiss the action without prejudice … or order that service
be made within a specified time.” FED. R. CIV. P. 4(m). The
court chose to dismiss the action without prejudice. The district
court did not abuse its discretion by choosing one of the two
options explicitly provided for in Rule 4(m). See Mann, 681
F.3d at 376–77.
Morrissey also insists the district court was required to
grant him a mandatory extension because he had “good cause”
for failure to timely comply with Rule 4’s service
requirements. As Morrissey acknowledges, Rule 4(m)’s
mandatory extension applies only “if the plaintiff shows good
cause for the failure.” FED. R. CIV. P. 4(m). Morrissey made no
attempt to demonstrate good cause to the district court before
the deadline for service had passed. Morrissey suggests the
district court should have sua sponte identified good cause for
an extension, but the failure to do so is not an abuse of
discretion.
The district court did not abuse its discretion by dismissing
Morrissey’s complaint when the time for effectuating service
had passed.
B.
Morrissey also argues the district court erred by denying
his motion to reinstate the case. It is unclear from the face of
Morrissey’s motion exactly what type of motion he sought to
13
bring because the Federal Rules do not include a motion to
reinstate a case. The government maintains it should be treated
as a motion to alter or amend the judgment under Rule 59(e).
We agree because Morrissey’s motion “involves
reconsideration of matters properly encompassed in a decision
on the merits,” not “collateral” issues that would require a
separate inquiry. Osterneck v. Ernst & Whinney, 489 U.S. 169,
174 (1989) (cleaned up). We thus review the district court’s
denial of Morrissey’s motion for abuse of discretion. See GSS
Grp. Ltd. v. Nat’l Port Auth., 680 F.3d 805, 811 (D.C. Cir.
2012).
The district court did not abuse its discretion in denying
this motion because Morrissey failed to demonstrate
compliance with Rule 4; did not offer any evidence of good
cause for his failure; and provided no reason why the running
of the statute of limitations required the district court to offer a
discretionary extension.
Even after the dismissal of his complaint and in his motion
to reinstate, Morrissey provided evidence only of service to the
Secretary. In order to bring suit against the Department of
Homeland Security, however, Rule 4(i) required Morrissey to
serve not only the Secretary, but also the Attorney General and
the U.S. Attorney for the District of Columbia. Because
Morrissey failed to establish that he properly served the
Attorney General and U.S. Attorney, he did not complete
service as required by Rule 4.
On appeal, Morrissey raises a new set of arguments that
“good cause” exists because the service requirements are
complicated and his failure to properly serve the United States
is an “oversight” similar to those service errors for which
Rule 4(i)(4) explicitly provides a mandatory extension.
Morrissey Br. 25 (cleaned up). These arguments, however,
14
were not raised below and so were forfeited. See Keepseagle v.
Perdue, 856 F.3d 1039, 1053–54 (D.C. Cir. 2017). In his
motion to reinstate, Morrissey made no attempt to show “good
cause” for his failure to timely complete service, a showing that
would have entitled him to an extension. See FED. R. CIV. P.
4(m). Rather, he conceded that he thought he had complied
with the Rule by serving only the Secretary, so he did not
address the issue of good cause. See S. Cal. Edison Co. v.
FERC, 603 F.3d 996, 1000 (D.C. Cir. 2010) (“[A] concession
is analogous to a waiver.”). As the district court assumed,
Morrissey either “misread or ignored Rule 4(i)(2),” M.A. 32,
and “[f]ailure to read a rule is the antithesis of good cause,”
Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996). 4
Even on the merits, Morrissey’s new arguments about
“good cause” are unavailing because they would require this
court to add a new ground for a mandatory extension to
Rule 4(i)(4). When suing a federal officer in his official
capacity, as Morrissey did, a plaintiff must be allowed a
reasonable time to cure defective service if he serves either the
Attorney General or the U.S. Attorney. FED. R. CIV.
P. 4(i)(4)(A). That relief is unavailable because Morrissey
served neither. Nor can Morrissey benefit from Rule 4(i)(4)(B),
which allows a person who properly serves a federal officer
additional time to serve the United States, because that
provision applies only when an officer is sued in his personal
capacity. FED. R. CIV. P. 4(i)(3) & 4(i)(4)(B). Rule 4(i)
explicitly distinguishes between official and personal capacity
4
The dissent makes a series of arguments about the difficulty of
understanding Rule 4(i), but the Rule’s instructions for serving the
United States are only about 120 words. Morrissey does not argue
that the Rule is ambiguous, only complex. But a district court is not
required to exercise discretion in favor of a party who misreads or
ignores the rules that govern civil procedure.
15
suits against federal officers, and it is not the role of the courts
to create additional exceptions to the service requirements. 5
Morrissey’s confusion or failure to read or understand
Rule 4(i) does not constitute good cause.
Morrissey also argues the district court abused its
discretion by declining to grant a discretionary extension. He
maintains that the denial of a discretionary extension is
contrary to the intent of Rule 4 and is thus an abuse of
discretion because the advisory committee’s note
accompanying Rule 4(i) shows it was “intended to ‘save the
plaintiff from the hazard of losing a substantive right because
of failure to comply with the complex requirements of multiple
service.’” Morrissey Br. 51 (quoting FED. R. CIV. P. 4(i)
advisory committee’s note to 1993 amendment). But that note
pertains to a subpart of the Rule that does not apply in this case
because Morrissey failed to serve either the Attorney General
or the U.S. Attorney. See FED. R. CIV. P. 4(i)(4)(A). 6
The decision of whether to grant Morrissey an extension
was committed to the district court’s discretion, so our review
5
The dissent suggests that the presence of a mandatory extension in
one part of the Rule suggests that a discretionary extension is
appropriate in other circumstances—perhaps recognizing for the first
time the counter-textual canon expressio unius est inclusio alterius.
Dissenting Op. 38–39. The argument proves too much, because the
dissent recognizes that any extension here would not be mandatory,
only discretionary, which the district court recognized. This further
reinforces that our review is properly under the abuse of discretion
standard.
6
Rule 4(i)(4) in the current version of the Rules generally
corresponds with Rule 4(i)(3) in the 1993 version, which stated
“[t]he court shall allow a reasonable time for service of process under
this subdivision for the purpose of curing the failure to serve multiple
16
must be deferential. Cf. Yesudian ex rel. United States v.
Howard Univ., 270 F.3d 969, 971 (D.C. Cir. 2001). When
determining whether to grant a discretionary extension under
Rule 4(m), the district court may consider a range of factors.
Even though Morrissey’s motion did not discuss whether the
statute of limitations would bar him from refiling, the district
court “assume[d] that Morrissey may be barred from refiling
his action” because his complaint referred to an expired
limitations period. M.A. 34. The district court reasonably
invoked the equitable factors we considered in Mann. These
factors include: whether the statute of limitations would bar the
plaintiff from refiling his complaint; whether the plaintiff had
“been diligent in correcting the service deficiencies”; and
whether the plaintiff was a pro se litigant deserving of
“additional latitude … to correct defects in service of process.”
Mann, 681 F.3d at 376–77.
Morrissey was represented by counsel, and the district
court explicitly and clearly reminded him of his service
obligations two weeks before the deadline. Although the
running of a statute of limitations weighed in favor of granting
Morrissey an extension, it did not mandate an extension. Id. at
376 (considering the statute of limitations as one “equitable
factor[]” among others). A court may decline to grant a
discretionary extension even if the statute of limitations would
bar refiling. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d
1298, 1306 (3d Cir. 1995) (“We emphasize that the running of
the statute of limitations does not require the district court to
extend time for service of process. Rather, absent a finding of
good cause, a district court may in its discretion still dismiss
the case, even after considering that the statute of limitations
officers, agencies, or corporations of the United States if the plaintiff
has effected service on either the United States attorney or the
Attorney General of the United States.”
17
has run and the refiling of an action is barred.”). The district
court reasonably determined that only the statute of limitations
weighed in favor of an extension and that the other factors
tipped the balance against an extension. 7
Rule 4 gives a district court discretion to grant an
extension, but it does not mandate an extension where a
plaintiff fails to serve the government and the statute of
limitations has run. Ultimately, the district court did not abuse
its discretion by denying Morrissey’s motion.
C.
We next review the district court’s denial of Morrissey’s
Rule 59(e) motion for reconsideration. A district court must
grant a Rule 59(e) motion only if, inter alia, it is necessary to
7
The dissent suggests the district courts in these cases failed to “give
focused consideration and appropriate weight in their Rule 4(m)
analyses.” Dissenting Op. 19. While the dissent cites numerous out-
of-circuit cases for this principle, these cases all apply an abuse of
discretion standard and are consistent with our precedents, which
require consideration of all relevant equitable factors before
dismissal, including the running of a statute of limitations. Mann,
681 F.3d at 376. This circuit’s law does not require giving “material”
weight, a term not found in Mann, to any one factor. But cf.
Dissenting Op.1.
Under the dissent’s standard, it is unclear how we should review
whether a district court gave sufficient consideration to dismissal,
short of presumptively granting an extension when the statute of
limitations has run. But statutes of limitations also serve important
purposes, such as providing notice and repose and preserving
evidence for litigation. See Am. Pipe & Constr. Co. v. Utah, 414 U.S.
538, 554 (1974). Limitations periods reflect legislative policy
judgments and should not be lightly ignored by the judiciary. See Bd.
of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487
(1980) (“Statutes of limitations are not simply technicalities.”).
18
“prevent manifest injustice.” Patton Boggs, 683 F.3d at 403
(cleaned up). No manifest injustice exists, however,
“where … a party could have easily avoided the outcome, but
instead elected not to act until after a final order had been
entered.” Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004)
(cleaned up).
The district court did not abuse its discretion in
denying the Rule 59(e) motion for reconsideration because
Morrissey’s motion raised new arguments, all of which were
previously available. 8 Morrissey could have attempted to
show good cause or requested an extension prior to dismissal,
but he did not. See Fox v. Am. Airlines, Inc., 389 F.3d 1291,
1296 (D.C. Cir. 2004) (finding no abuse of discretion in denial
of Rule 59(e) motion where “dismissal of [plaintiffs’] suit
might have been avoided through the exercise of due
diligence”). Nor did he raise these arguments in his so-called
motion to reinstate. Morrissey’s reconsideration motion in fact
demanded an initial consideration of new arguments, which
8
We decline to address Morrissey’s argument, reiterated on appeal,
that dismissal was improper under Rule 4(m) because the district
court provided notice of the service requirement before (rather than
after) the time to file service had expired. Morrissey Br. 39 n.7.
Morrissey forfeited this argument by making only a skeletal
assertion in a footnote. See CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C.
Cir. 2014) (“[A] footnote is no place to make a substantive legal
argument on appeal; hiding an argument there and then articulating
it in only a conclusory fashion results in forfeiture.”).
19
turns Rule 59(e) on its head. See Leidos, Inc. v. Hellenic
Republic, 881 F.3d 213, 217 (D.C. Cir. 2018).
***
Despite the reminder from the district court, Morrissey
failed to exercise diligence in effectuating service on the
United States, and he presented no good cause for his failure.
The district court did not abuse its discretion in dismissing
Morrissey’s suit. 9
IV.
Reviewing the dismissal of Stephenson’s complaint under
the same standards articulated above, we find no abuse of
discretion by the district court.
A.
Stephenson first argues the district court erred by
dismissing his complaint without considering whether to grant
a second discretionary extension. He bases this argument on
the language in the district court’s minute order dismissing his
case: “Therefore, as required by Rule 4(m), the [c]ourt sua
sponte dismisses … this action without prejudice.” S.A. 2.
Stephenson maintains that by using the word “required” the
9
The dissent delves into the facts of both cases and argues the
district courts should have granted extensions. Yet the dissent fails
to recognize our deferential standard of review. The relevant inquiry
is not what we would have done in the same situation. Under the
abuse of discretion standard, we do not superintend the discretionary
choices of the district court. Ultimately, the dissent agrees that Mann
is the governing case and disagrees only about how Mann applies to
the facts of these cases. Dissenting Op. 29–30.
20
district court mistakenly treated dismissal as mandatory and
failed to recognize its discretion to grant another extension.
This argument myopically focuses on the dismissal order’s
reference to “as required by Rule 4(m)” while ignoring the
broader context in which the district court used the phrase. The
district court had previously issued a minute order sua sponte
granting Stephenson a discretionary extension to complete
service, which shows the court was not under the
misconception that Rule 4(m) mandated dismissal for failure to
comply with the Rule. Moreover, the minute order cautioned
that “[i]f service is not perfected by [December 4, 2019], the
[c]ourt may dismiss the action without prejudice.” S.A. 1. The
district court’s use of “may” recognized the court’s authority
to grant another extension.
Rule 4(m) dictates that if a plaintiff does not complete
service within ninety days of filing his complaint, “the
court … must dismiss the action without prejudice … or order
that service be made within a specified time.” FED. R.
CIV. P. 4(m). When Stephenson failed to effectuate service
after ninety days, the court faced a binary choice and decided
to grant an extension, ordering Stephenson to complete service
within fourteen days. When Stephenson failed to complete
service by the extended deadline and did not show good cause
for this failure or request additional time to complete service,
the district court chose to dismiss the case without prejudice.
There was no abuse of discretion in dismissing the case and
denying Stephenson a third bite at the apple.
Stephenson maintains that dismissal is a disfavored case-
ending sanction because it is effectively with prejudice due to
the statute of limitations. But Stephenson had not sought an
extension or argued the statute of limitations would bar the
refiling of his suit, and it is not the district court’s responsibility
21
to discover or raise such issues in the first instance. Stephenson
“may not be heard to complain that the district court has abused
its discretion by failing to compensate for counsel’s inadequate
effort.” Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988).
The possibility that the statute of limitations would run does
not transform the district court’s dismissal of Stephenson’s
case into an abuse of discretion.
B.
Stephenson also argues the district court erred by denying
his motion for reconsideration because under any standard an
extension was warranted.
Whether treated as a motion under Rule 59(e) or
Rule 60(b), we review the district court’s dismissal of
Stephenson’s motion for abuse of discretion. GSS Grp. Ltd.,
680 F.3d at 811 (Rule 59(e) motion); Bain v. MJJ Prods., Inc.,
751 F.3d 642, 646 (D.C. Cir. 2014) (Rule 60(b) motion). The
district court did not abuse its discretion because Stephenson’s
motion failed to satisfy either standard for reconsideration.
Stephenson did not point to any circumstances outside his
control as the cause of his failure to properly serve the United
States; request additional time prior to expiration of the
original deadline; or request additional time if the two-week
extension was insufficient.
To obtain relief under Rule 60(b)(1), Stephenson must
show “mistake, inadvertence, surprise, or excusable neglect.”
FED. R. CIV. P. 60(b)(1). “Excusable neglect is an equitable
concept that considers all relevant circumstances surrounding
the failure to act.” Cohen v. Bd. of Trustees of Univ. of D.C.,
819 F.3d 476, 479 (D.C. Cir. 2016) (cleaned up). “[T]he reason
for the delay, including whether it was within the reasonable
control of the movant,” is one of the “relevant circumstances.”
22
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 395 (1993); see also In re Vitamins Antitrust Class
Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003). “[C]ounsel
typically must have some reasonable basis for not meeting a
filing deadline” to show excusable neglect. Cohen, 819 F.3d at
479 (cleaned up).
Stephenson argues on appeal that he was generally diligent
throughout the litigation, that any lack of diligence was the
fault of his attorney, and that he did not intentionally refuse to
serve the United States. None of these arguments, however,
provides a “reasonable basis” for his delay. Before the district
court, Stephenson stressed that he failed to timely effect service
because a mail sorting service lost the “signature card” he sent
to the U.S. Attorney and Attorney General. Stephenson
abandoned this argument on appeal, but in any event, we agree
with the district court that Stephenson’s arguments “make[] no
sense,” S.A. 34, because the signature card relates only to proof
of service, and “[f]ailure to prove service does not affect the
validity of service” under Rule 4(m), FED. R. CIV. P. 4(l)(3).
Stephenson lacked a reasonable basis for his failure to
complete service by the extended deadline.
Moreover, the failure to effect service “was within
[Stephenson’s] reasonable control.” In re Vitamins Antitrust
Class Actions, 327 F.3d at 1209; see also Cohen, 819 F.3d at
480 (identifying the importance of counsel having some
reasonable excuse). It was within Stephenson’s control to track
court deadlines and to be aware of the Federal Rules of Civil
Procedure, particularly as he was represented by counsel. See
Ctr. for Nuclear Resp., Inc. v. U.S. Nuclear Regul. Comm’n,
781 F.2d 935, 942 (D.C. Cir. 1986) (explaining that attorneys
“have a professional obligation to be” knowledgeable about
“procedural rules,” which “are the tools of the trade”).
Ignorance of the rules does not qualify as excusable neglect.
23
Furthermore, Stephenson failed to correct the service error
when the district court clearly explained who must be served
and provided an additional two weeks to complete service. Our
review of the district court’s exercise of discretion takes this
key fact into account.
Like Morrissey, Stephenson argues that his claims are now
time-barred, and therefore the district court erred by declining
to give him another extension to complete service. Rule 60(b)
affords the district court wide discretion, and the running of the
statute of limitations, standing alone, does not mandate an
extension. The district court did not abuse its discretion by
denying Stephenson’s motion for reconsideration.
Stephenson fares no better under the Rule 59(e) standard.
“[R]econsideration or amendment of a judgment [under Rule
59(e)] is … an extraordinary measure.” Leidos, 881 F.3d at
217. “A Rule 59(e) motion is discretionary and need not be
granted unless the district court finds … the need to … prevent
manifest injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C. Cir. 1996) (per curiam) (cleaned up). As already noted,
there is no manifest injustice when “a party could have easily
avoided the outcome, but instead elected not to act until after a
final order had been entered.” Ciralsky, 355 F.3d at 673(cleaned up).
Stephenson could have attempted to show good cause or
requested another extension, but he did not do so before
dismissal. Furthermore, like Morrissey, Stephenson’s motion
for reconsideration includes only arguments that he could have
raised prior to dismissal, meaning Rule 59(e) is not an
appropriate avenue for relief. See Patton Boggs, 683 F.3d at
24
403. The district court did not abuse its discretion by denying
Stephenson’s motion for reconsideration.
Stephenson also argues the district court should have
considered his request for an extension of time under its
discretionary authority, rather than under the “high bar” for
relief under Rules 59 and 60. Stephenson Br. 25 (cleaned up).
He asks this court to follow other circuits “and hold that a
district court must consider whether the circumstances of a
case”—such as the statute of limitations—“warrant a
discretionary extension.” Stephenson Br. 27. We have no
occasion to set out a rule for the lower courts because the
district court did consider whether to grant Stephenson an
extension—twice. After Stephenson missed the ninety-day
deadline for serving the United States, the district court sua
sponte granted a discretionary extension and clearly stated who
must be served. Later, when denying Stephenson’s motion for
reconsideration, the district court reasoned that although it was
“unfortunate” that Stephenson’s claims may be time-barred,
the statute of limitations alone did not “justify the
extraordinary relief he s[ought], especially considering that he
[wa]s represented by counsel.” S.A. 36. The district court
concluded by noting that the failure to follow the court’s
direction to effectuate service was not “the kind of
circumstances that warrant the highly discretionary relief”
Stephenson sought. S.A. 37.
The district court did not abuse its discretion by dismissing
Stephenson’s claims for failure to effectuate service on the
United States.
***
The Federal Rules of Civil Procedure ensure orderly
disposition of claims. When a federal agency is the defendant,
25
the requirement to serve the United States ensures notice of a
lawsuit to the Department of Justice, which must determine
whether and how to respond to claims against a federal agency.
Morrissey and Stephenson failed to timely serve the United
States, despite reminders to do so, and their claims were
eventually dismissed without prejudice. Although the running
of the statute of limitations may prevent Morrissey and
Stephenson from suing the agencies for which they worked,
even in these circumstances the district court has substantial
discretion to grant or to deny an extension of time to perfect
service. The district court was well within its discretion in
denying the extensions in these cases.
For the foregoing reasons, we affirm the dismissals of
Morrissey’s and Stephenson’s complaints.
So ordered.
MILLETT, Circuit Judge, dissenting: The “clear
preference” of the Federal Rules of Civil Procedure is “to
resolve disputes on their merits[,]” Cohen v. Board of Trustees,
819 F.3d 476, 482 (D.C. Cir. 2016), and not to dismiss them on
“mere technicalities[,]” English-Speaking Union v. Johnson,
353 F.3d 1013, 1021 (D.C. Cir. 2004) (quoting Foman v.
Davis, 371 U.S. 178, 181 (1962)).
Yet the majority opinion affirms the dismissal of these two
cases before they have even started based on a single, purely
technical misstep in the process of serving the complaint. And
the majority opinion does so even though the dismissals
conclusively ended the litigation on the merits because the
statutes of limitations had run.
In upholding the orders of dismissal despite their known
prejudicial consequences, the majority opinion brings this
court into a direct conflict with the law of the Fifth Circuit.
That circuit requires a showing of misconduct or willful failure
to effect service by the plaintiff and a showing that lesser
sanctions would not suffice before slamming the courthouse
doors shut on aggrieved parties. If the Fifth Circuit’s rule were
applied here, the district courts’ peremptory dismissal orders
unquestionably would have been overturned as abuses of
discretion. In addition, unlike the majority opinion, at least
four other circuits require district courts to, at a minimum, give
focused consideration and appropriate weight to the death-
knell consequences of dismissal before terminating a lawsuit
just because of attorneys’ confusion or easily correctible
mistakes. The district courts’ failure here to accord any
material weight—or any weight at all in Stephenson’s case—
to the fatal consequences of dismissal for a first-time error
would have been ruled an abuse of discretion in those circuits.
The majority opinion also cannot be reconciled with this
court’s precedent requiring weighty reasons before dismissing
2
a case with prejudice for failure to complete service under
Federal Rule of Civil Procedure 41(b) or failure to serve
foreign governments. See Barot v. Embassy of the Republic of
Zambia, 785 F.3d 26, 29 (D.C. Cir. 2015); Smith-Bey v. Cripe,
852 F.2d 592, 594 (D.C. Cir. 1988).
The credibility of the judicial branch depends critically on
the fairness and openness with which we administer justice to
those parties who entrust their disputes to the courts for
resolution. Part of being fair and open is recognizing that, in
the litigation process, good faith mistakes inevitably happen.
When, as here, those mistakes are one-off and easily remedied
technical missteps in the initial processing of a case, and
neither bear on the merits nor prejudice the defendants or
courts, the sanction for the lawyer’s misstep should not be the
death of the party’s case. At the least, before such irreversible
harm occurs, district courts should openly acknowledge the
fatal consequences of a dismissal and provide sound and
specific reasons that justify ending a party’s case before it even
begins. Because the majority opinion requires far too little
before district courts deploy one of their harshest sanctions for
a first-time technical error, I respectfully dissent.
I
A
1
The “spirit and inclination” of the Federal Rules of Civil
Procedure “favor[] decisions on the merits[.]” Schiavone v.
Fortune, 477 U.S. 21, 27 (1986). To that end, district courts’
enforcement of the Rules “must be a ‘reasonable response to
the problems and needs’ confronting the court’s fair
administration of justice.” Dietz v. Bouldin, 136 S. Ct. 1885,
1892 (2016) (emphasis added) (quoting Degen v. United States,
3
517 U.S. 820, 823–824 (1996)). That means that a district
court’s exercise of discretion under the Rules “should reflect
our judicial system’s strong presumption in favor of
adjudications on the merits[.]” Shepherd v. American Broad.
Cos., 62 F.3d 1469, 1475 (D.C. Cir. 1995). The Rules, after
all, are not intended to function as “a game of skill in which
one misstep * * * may be decisive[,]” but instead are intended
to “facilitate a proper decision on the merits.” Ciralsky v. CIA,
355 F.3d 661, 674 (D.C. Cir. 2004) (quoting Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002)).
The Rules’ bias in favor of resolving cases on the merits is
“particularly strong” if dismissing the claims would have
“preclusive effect”—that is, the dismissal would conclusively
end the litigation. Cohen, 819 F.3d at 482. When that happens,
the complaint may not be refiled; the court has decided that the
error can never be fixed.
Because of the severe consequences of dismissals with
prejudice, they are the “exception, not the rule[.]” Rudder v.
Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). A dismissal with
such prejudicial consequences is a “death knell” that should be
employed “only as a last resort.” English-Speaking Union, 353
F.3d at 1021 (quoting Aoude v. Mobil Oil Corp., 892 F.2d
1115, 1118 (1st Cir. 1989)).
For that reason, many orders of dismissal under the
Federal Rules of Civil Procedure are made without prejudice.
Unlike a dismissal with prejudice, a dismissal without
prejudice “does not operate as an adjudication upon the
merits[.]” Cactus Canyon Quarries, Inc. v. Federal Mine
Safety & Health Review Comm’n, 820 F.3d 12, 19 (D.C. Cir.
2016). As a result, a plaintiff is not barred from “refil[ing] the
same suit on the same claim,” so long as it is still within the
relevant statute of limitations period. Semtek Int’l Inc. v.
4
Lockheed Martin Corp., 531 U.S. 497, 505 (2001) (quoting
Dismissal Without Prejudice, BLACK’S LAW DICTIONARY 482
(7th ed. 1999)). “The principle guiding a dismissal without
prejudice is that absent futility or special circumstances (such
as undue delay, bad faith, or dilatory motive), a plaintiff should
have the opportunity to replead so that claims will be decided
on merits rather than technicalities.” Osborn v. Visa Inc., 797
F.3d 1057, 1062 (D.C. Cir. 2015).
2
At the very outset of a federal case, Federal Rule of Civil
Procedure 4 requires plaintiffs to serve a copy of the complaint
and court-issued summons on the defendants they are suing.
See generally FED. R. CIV. P. 4. Service of process provides
the defendants fair notice of the lawsuit, of the nature of the
claims against them, and of the forum in which the litigation
has been brought. See Henderson v. United States, 517 U.S.
654, 672 (1996); see also 4A CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 1083 (4th ed. April 2021 update) (“[S]ervice of process [is]
primarily a notice-giving device.”).
Federal Rule of Civil Procedure 4(m) sets the timeframe
for service, instructing that a plaintiff should serve a defendant
within 90 days of filing the complaint. FED. R. CIV. P. 4(m). If
the plaintiff fails to do so, the district court, “on motion or on
its own after notice to the plaintiff[,]” either “must dismiss the
action without prejudice against that defendant or order that
service be made within a specified time.” Id. (emphasis added).
Rule 4(m) does not allow a dismissal with prejudice.
Before 2015, the time limit to complete service was 120
days. In reducing the time period to 90 days, the Advisory
Committee anticipated that “[s]hortening the presumptive time
for service will increase the frequency of occasions to extend
5
the time.” FED. R. CIV. P. 4(m), Advisory Committee Note to
2015 amendment. The Committee added that “[m]ore time
may be needed, for example, when * * * a defendant is difficult
to serve[.]” Id.; see FTC v. Boehringer Ingelheim Pharms.,
Inc., 778 F.3d 142, 154 (D.C. Cir. 2015) (“Helpfully, the
Advisory Committee’s notes on the amendments ‘provide a
reliable source of insight into the meaning of a rule[.]’”)
(quoting United States v. Vonn, 535 U.S. 55, 64 n.6 (2002)).
If the plaintiff shows “good cause” for failing to serve the
defendant, the court does not have a choice—it “must extend
the time for service for an appropriate period.” FED R. CIV.
P. 4(m). One “specific instance of good cause” is
Rule 4(i)(4)’s mandatory extension for serving the United
States and its officers once partial service has been completed.
FED. R. CIV. P. 4(m), Advisory Committee Note to 1993
amendment.
But even in the absence of good cause, courts may, and
commonly do, grant discretionary extensions of the service
deadline under Rule 4(m). See Henderson, 517 U.S. at 662;
Mann v. Castiel, 681 F.3d 368, 375–376 (D.C. Cir. 2012); see
also WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE
§ 1083 (“The general attitude of the federal courts is that the
provisions of Federal Rule 4 should be liberally construed in
the interest of doing substantial justice[.]”). Such an extension
may be appropriate for a variety of reasons, including in
particular “if the applicable statute of limitations would bar the
refiled action[.]” FED. R. CIV. P. 4(m), Advisory Committee
Note to 1993 amendment. That is because, once the statute of
limitations has run, even if dismissal under Rule 4(m) is
nominally without prejudice, the legal reality is that the
dismissal is “effectively with prejudice” because it brings an
end to the plaintiff’s claims, just as much as an express
dismissal with prejudice would. Ciralsky, 355 F.3d at 672
6
(quoting Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir.
2000)).
Rule 4(i) provides a unique rule for service of process in
suits brought against the federal government. Under Rule
4(i)(2), a plaintiff suing an agency or a federal officer in his or
her official capacity “must serve the United States and also
send a copy of the summons and of the complaint by registered
or certified mail to the agency * * * [or] officer[.]” FED. R.
CIV. P. 4(i)(2). But Rule 4(i)(2) is silent about how to serve the
United States.
Instead, to figure out how to serve the United States, as
distinct from its officer or agency, counsel must look back to
Rule 4(i)(1). That Rule requires plaintiffs also to send a copy
of the summons and complaint to both the United States
Attorney for the district where the action is brought and the
United States Attorney General. FED. R. CIV. P. 4(i)(1)(A)–
(B). The Rule’s wording is less than pellucid. Litigants must
parse, by the majority opinion’s count, 120 words of
meandering language to discern that they must serve two
additional individuals. See Majority Op. 14 n.4.
The first part of Rule 4(i)(1) contains two “or” clauses. It
states that a party must “(i) deliver a copy of the summons and
of the complaint to the United States attorney for the district
where the action is brought—or to an assistant United States
attorney or clerical employee whom the United States attorney
designates in a writing filed with the court clerk—or (ii) send
a copy of each by registered or certified mail to the civil-
process clerk at the United States attorney’s office.” Id.
4(i)(1)(A)(i)–(ii) (emphasis added). On top of that, the Rule
adds that, “if the action challenges an order of a nonparty
agency or officer of the United States,” the party must “send a
7
copy of each by registered or certified mail to the agency or
officer.” Id. 4(i)(1)(C).
Rule 4(i)’s service provisions have long been recognized
to be notoriously confusing and complicated, and the risk that
plaintiffs “los[e] a substantive right because of failure to
comply with the complex requirements of multiple service
under [Rule 4(i)] * * * has proved to be more than nominal.”
FED. R. CIV. P. 4(i), Advisory Committee Note to 1993
amendment; see, e.g., Veal v. United States, 84 F. App’x 253,
256 (3d Cir. 2004) (“[T]he service required [under Rule 4(i)]
was of a kind often found to be confusing[.]”); Olsen v. Mapes,
333 F.3d 1199, 1205 (10th Cir. 2003) (“Rule 4(i) is a lengthy
and complicated rule.”); Espinoza v. United States, 52 F.3d
838, 842 (10th Cir. 1995) (noting the “complex requirements”
of Rule 4(i)); WRIGHT & MILLER, FEDERAL PRACTICE &
PROCEDURE § 1107 (“Given the complexity of this subdivision
of Rule 4, counsel must exercise great care in determining who
is the proper defendant and whether the particular officer or
agency or corporation has the capacity to be sued.”) (footnote
omitted); Brief for Professors of Civil Procedure as Amici
Curiae in Support of Appellant Paul S. Morrissey at 2 (“Rule
4(i) is a particularly complex rule[.]”).
To help mitigate this problem, the Advisory Committee
added to Rule 4(i) two mandatory extensions of the service
window. See FED. R. CIV. P. 4(i), Advisory Committee Note
to 1993 amendment (correcting “risk” manifested in Whale v.
United States, 792 F.2d 951 (9th Cir. 1986), where plaintiff lost
“substantive rights against the United States” because plaintiff
failed to properly serve the U.S. Attorney and the statute of
limitations had expired by the time the defect was discovered).
Under Rule 4(i)(4), courts must allow plaintiffs a “reasonable
time” to correct their service failure (1) if the plaintiff sued a
federal officer in his or her official capacity and served only the
8
U.S. Attorney or the Attorney General, but has not served one
or both of the other two individuals for whom service is
required; or (2) if the plaintiff has served the United States
officer or employee but has failed to serve the Attorney General
or the U.S. Attorney in a suit under Rule 4(i)(3). FED. R. CIV.
P. 4(i)(4).1
B
1
a
Paul Morrissey was a Secret Service agent for more than
33 years. He rose through the ranks to the position of Assistant
Director, a position in which he developed and implemented
agency-wide policies and supervised dozens of personnel.
During his time with the agency, he consistently received the
highest performance ratings. But in January 2015, when he
was 59 years old, Morrissey was demoted from his position as
Assistant Director. According to the complaint, Morrissey’s
supervisor said that he wanted to build his own staff with
“younger Deputy Assistant Directors with a fresh perspective.”
Appendix at 7 ¶ 22, Morrissey v. Mayorkas, No. 20-5024 (D.C.
Cir. May 15, 2020), ECF No. 1843094 (“Morrissey App.”).
1
To layer on more confusion, Rule 4(i)(4)(B) sounds like it
applies when only the third portion of the service trifecta—service
on the officer or employee—has been accomplished, and so
compliments Rule 4(i)(4)(A)’s mandatory extension for when the
Attorney General or the United States Attorney has been served.
Only by looking back to Rule 4(i)(3) will counsel realize that this
second form of mandatory extension applies exclusively when the
lawsuit is against a federal officer or employee in her personal
capacity rather than official capacity.
9
Morrissey filed a formal administrative complaint with the
Equal Employment Opportunity Commission in April 2015
claiming that his demotion was on the basis of his age, in
violation of the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 623(a)(1).
Morrissey properly exhausted his administrative remedies,
receiving a final agency decision in April 2019. That decision
gave Morrissey 90 days to file his lawsuit in federal court.
b
Morrissey met that deadline by timely filing suit on June
28, 2019, against Kevin McAleenan, the then-Acting Secretary
of the Department of Homeland Security, in his official
capacity. The Clerk issued the summons a few days later.
Based on Rule 4(m), Morrissey’s 90-day deadline for
completing service was September 26, 2019.
Two weeks before that service deadline, the district court
issued a minute order reminding Morrissey of the deadline and
directing his attention to Rule 4(m) regarding the time limits
for service. The district court stated that if Morrissey did not
serve the government and file proof of that service or establish
good cause for failing to do so by September 26th, his failure
would “result in dismissal of this case.” Morrissey App. 1. The
order though did not refer Morrissey to Rule 4(i) or include any
other indication of the need to serve two additional entities
besides the named defendant. In fact, it instructed Morrissey
only to “cause process to be served upon the Defendant” in the
singular. Morrissey App. 1 (emphasis added).
Morrissey’s lawyer served Secretary McAleenan by
certified mail ten days prior to the deadline. He failed,
however, to file proof of that service on the docket.
10
On September 30, 2019, four days after the service
deadline, the district court issued an order dismissing the case
because “Mr. Morrissey has not complied with the Court’s
[prior] order. There is no proof of proper service on the
docket.” Morrissey App. 20.
That same day, Morrissey’s lawyer filed a motion to
reinstate the case. He informed the court, attaching an affidavit
of service, that he had actually served Secretary McAleenan
within the time provided by Rule 4(m), even though he had not
filed proof of service. Morrissey’s counsel “request[ed] the
Court’s discretion to allow the filing of the proof of service
with this motion[,]” and cited Novak v. World Bank, 703 F.2d
1305, 1310 (D.C. Cir. 1983), for the proposition that “dismissal
is not appropriate when there exists a reasonable prospect that
service can be obtained.” Morrissey App. 21–22 (quoting
Novak, 703 F.2d at 1310). Counsel added that Morrissey had
not “engage[d] in a pattern of dilatory conduct or willfully
disregarded an order[.]” Morrissey App. 23. Nothing in the
motion indicated that Morrissey’s counsel was aware that
service was ineffective because the U.S. Attorney and Attorney
General had not also been served.
c
A month and a half later, the district court denied
Morrissey’s motion. The court explained that Morrissey had
not fully complied with all of Rule 4(i)’s requirements for
serving the United States government as he had failed to serve
either the U.S. Attorney or the Attorney General within the 90-
day limit. The district court added that a mandatory extension
for good cause was not available because “a misunderstanding
of the rule is not good cause.” Morrissey App. 32.
The court also “consider[ed] whether to grant Morrissey a
discretionary extension of time to complete service.”
11
Morrissey App. 32. The court noted that “[t]he D.C. Circuit
has not specified what factors a district court must weigh” in
this situation, though “it has said that ‘dismissal of a case
pursuant to Rule 4(m) is appropriate when the plaintiff’s failure
to effect proper service is the result of inadvertence, oversight,
or neglect, and dismissal leaves the plaintiff in the same
position as if the action had never been filed.’” Morrissey App.
33 (citing Mann, 681 F.3d at 376).
The district court said that “one factor to consider here is
whether a statute of limitations would bar Morrissey from
refiling his action.” Morrissey App. 33. While Morrissey’s
motion to reinstate “d[id] not discuss this issue,” the court
noted that the complaint identified a 90-day period for filing
suit. Morrissey App. 33; see Morrissey App. 5 (complaint)
(“Plaintiff received a Final Agency Decision on April 1, 2019,
providing for a ninety (90) day right to sue deadline for civil
actions in federal court.”). So the district court “assume[d] that
Morrissey may be barred from refiling his action.” Morrissey
App. 34.
The court then turned to other factors, observing that
Morrissey was not proceeding pro se and that the court had
notified him of his duty to effect service two weeks before the
deadline. Those factors “weigh against him,” the court
concluded. Morrissey App. 34. That the service requirements
for federal agencies and officials are complex, the court
reasoned, “does not cut in Morrissey’s favor” because the rules
“provide for some relief from the complex requirements of
Rule 4(i), but they do not contemplate relief in this case.”
Morrissey App. 34 (referencing Rule 4(i)(4)(A)). In particular,
the court pointed out that the Rule requires an extension when
the plaintiff has served either the U.S. Attorney or the Attorney
General, but it does not address the situation in which the
12
plaintiff has served the federal official but neither the U.S.
Attorney nor the Attorney General.
On that basis, the district court chose to “enforce the time
limit in Rule 4(m), even if a statute of limitations may bar
Morrissey from refiling his action.” Morrissey App. 35.
d
About a month later, Morrissey’s counsel filed a motion
under Rule 59(e) to alter the judgment. He argued that the
district court’s denial of his motion to reinstate the case resulted
in “manifest injustice” sufficient to alter the judgment.
Morrissey App. 38.
To explain the service error, Morrissey’s counsel advised
that he had been taking care of a terminally ill uncle during the
service period. The motion then argued that the court should
have granted a discretionary extension because dismissal
would substantially prejudice Morrissey given that his claim
would be time-barred. The motion added that dismissals with
prejudicial consequence are “extreme sanction[s] * * *
warranted only where a clear record of delay or contumacious
conduct by the plaintiff exists and a lesser sanction would not
better serve the interests of justice.” Morrissey App. 48–49
(quoting Thrasher v. City of Amarillo, 709 F.3d 509, 512–513
(5th Cir. 2013)). Counsel added that the relevant factors
weighed in favor of an extension because the delay caused by
the failure to serve had been short, Morrissey had been diligent
in pursuing his claim for almost four years, and he stood “ready
for immediate service on the United States Attorney and the
Attorney General” if the court would allow it. Morrissey App.
49.
Six weeks later, the district court denied Morrissey’s Rule
59(e) motion. In doing so, it refused to consider Morrissey’s
13
plea for a discretionary extension of time because it raised new
arguments that the court deemed not properly considered under
Rule 59.
2
a
Kelly Stephenson worked as an Air Traffic Control
Specialist for the Department of Transportation for more than
two decades. In January 2005, he suffered a stroke. While he
was still in the hospital’s Intensive Care Unit, the Department
sent an employee to his room to have Stephenson sign a form
agreeing to immediate retirement. Although Stephenson
remembers little of that interaction, his signature appears on the
form. After that, he was placed on disability retirement.
Sometime in 2013 or 2014, Stephenson wanted to return
to work and applied for two vacancies for his former position,
a job for which he remained qualified. When Stephenson
applied, the Department was supposed to give his application
“bona fide consideration” before the agency began formally
recruiting for the position. Appendix at 5, 7 ¶¶ 19–20, 30,
Stephenson v. Buttigieg, No. 20-5042 (D.C. Cir. June 5, 2020),
ECF No. 1846001 (“Stephenson App.”).
Stephenson alleged that, despite the Department’s
obligation to give him upfront consideration, it considered
other candidates alongside him and did not even give him an
interview, let alone select him for a position. Instead, the
Department hired younger, able-bodied candidates.
Stephenson then filed a complaint with the Equal
Employment Opportunity Commission, alleging violations of
the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§ 621, and the Americans with Disabilities Act, 42 U.S.C.
14
§ 12101. After a years-long process, the Commission made a
final determination in Stephenson’s case in April 2019, after
which he had 90 days to sue in federal court.
b
Stephenson timely filed his complaint on July 29, 2019,
suing Elaine Chao, the then-Secretary of the Department of
Transportation, in her official capacity. Under Rule 4(m), he
had until October 27, 2019 to complete service.
On September 9th, Stephenson filed with the court a
request for a summons for Secretary Chao. The Clerk issued
that summons the next day, but Stephenson did not serve Chao
before Rule 4(m)’s 90-day deadline for service expired.
On November 20, 2019, the district court issued a minute
order, noting that the time for service under Rule 4(m) had run.
The order explained that, under Rule 4(i)(2), Stephenson was
required to serve the summons and complaint on the agency
official, the U.S. Attorney, and the Attorney General. It
instructed Stephenson to file proof of that service on the docket
no later than December 4, 2019. If Stephenson failed to
complete service by that deadline, the court said that it “may
dismiss the action without prejudice.” Stephenson App. 1.
In an effort to follow that order, on December 3, 2019,
Stephenson’s counsel filed an affidavit that attested to his
service of Chao, along with a certified mail receipt and tracking
information. Stephenson’s counsel did not, however, file proof
of service on the U.S. Attorney or the Attorney General.
Two days later, the district court issued a second minute
order. The court noted that Stephenson had failed to serve the
U.S. Attorney and the Attorney General by the court’s deadline
of December 4, 2019. It also found that Stephenson had neither
15
shown good cause for failing to do so nor requested an
extension to cure that failure. The court then dismissed
Stephenson’s lawsuit “as required by Rule 4(m)” and “without
prejudice.” Stephenson App. 2.
c
Before the end of the month, Stephenson’s counsel filed a
Rule 60(b) motion for reconsideration of the minute order
dismissing the case. He argued that he had good cause for
failing to complete service, and that, even in the absence of
good cause, the court should use its discretion to extend the
service deadline. In particular, he argued that a discretionary
extension was warranted because Stephenson had been diligent
in attempting service twice, frustrated only by a clerical error,
and would be substantially prejudiced by a dismissal because
the 90-day window to file suit had already passed, rendering
his claims time-barred.
Because Stephenson’s counsel had filed his Rule 60(b)
motion within the time period for Rule 59(e) motions to alter
or amend a judgment, the court analyzed Stephenson’s motion
under both the Rule 59(e) “manifest injustice” standard and the
Rule 60(b) “excusable neglect” standard.
Under Rule 59(e), the court explained that there was no
manifest injustice because Stephenson, through his counsel,
had played a role in the failure to serve. And the court refused
to allow Stephenson “to use this motion as a vehicle to make
arguments in favor of an extension under Rule 4(m)” because
he had “every opportunity” to request an extension before the
service deadline. Stephenson App. 32–33.
The court took a similar approach under Rule 60(b). It did
not credit the clerical error excuse, and it observed that
Stephenson’s counsel’s service of Chao before the December 4
16
deadline “calls into question whether he understood his
obligation to serve the United States Attorney and Attorney
General at all, and whether a clerical error had anything to do
with what happened here.” Stephenson App. 34–35.
“Perhaps[,]” the court commented, “Stephenson’s counsel did
not understand what Rule 4 requires.” Stephenson App. 35.
On that basis, the district court ruled that any negligence was
not excusable, “even if all the other ‘excusable neglect’
factors—prejudice to the other party, length of any delay, and
the movant’s good faith—weigh in [Stephenson’s] favor.”
Stephenson App. 35.
Finally, with respect to the request for a discretionary
extension of time to prevent the claims becoming time-barred,
the court ruled that “the time for that argument ha[d] passed”
because Stephenson did not ask for an extension before the
court dismissed his case, and Stephenson could not use his
motion for reconsideration as a “vehicle[] to make arguments
that could have been presented earlier.” Stephenson App. 36.
The court concluded by noting that it was “unfortunate” that
Stephenson’s claims would be time-barred. Stephenson App.
36.
II
When a plaintiff fails to complete timely service and lacks
good cause for the failure, Rule 4(m) allows the district court
either to dismiss the case “without prejudice” or to grant a
discretionary extension. See FED. R. CIV. P. 4(m); Henderson,
517 U.S. at 662–663; Mann, 681 F.3d at 376. Dismissal under
Rule 4(m) is “appropriate” if “the plaintiff’s failure to effect
proper service is the result of inadvertence, oversight or
neglect, and dismissal leaves the plaintiff in the same position
as if the action had never been filed.” Mann, 681 F.3d at 376
(emphasis added, formatting modified, and citation omitted).
17
Rule 4(m) does not allow for a dismissal with prejudice.
Instead, under the Federal Rules of Civil Procedure, a dismissal
with prejudice for failure to complete service (or other case-
processing failures) must meet the stringent standard required
for a dismissal for failure to prosecute under Rule 41(b).
Specifically, the court must find “egregious conduct by
particularly dilatory plaintiffs,” and that “less dire alternatives”
have been tried first. Peterson v. Archstone Communities,
LLC, 637 F.3d 416, 418 (D.C. Cir. 2011) (internal quotation
marks and citation omitted). In the service context specifically,
a dismissal with prejudice is allowed “only when there is no
reasonable probability that service can be obtained.” Smith-
Bey, 852 F.2d at 594.2
The important question in this case is what legal standard
should govern when a dismissal under Rule 4(m) is known to
be, in effect, with prejudice because it would not leave
plaintiffs in the same position as they were in before the suit
was filed, Mann, 681 F.3d at 376, but instead would terminate
the entire case because the statute of limitations has run.
The majority opinion concludes that district courts have
discretion to brush aside the known fatal consequences of a
dismissal for an initial failure of service. Also within the
2
Rule 41(b) states:
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule—except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19—operates as an adjudication on the merits.
FED. R. CIV. P. 41(b).
18
district court’s discretion, according to the majority, is finding
the case-ending consequences of a dismissal outweighed by
such commonplaces as the presence of counsel or advance
notice in the docket sheet. Majority Op. 15–17. In other words,
even though Rule 4(m)’s plain text only authorizes a dismissal
“without prejudice,” district courts can knowingly accomplish
the equivalent of a dismissal with prejudice without making the
heightened showing required by Rule 41(b) just by invoking
Rule 4(m) and then citing to the (omnipresent) mistake or
misunderstanding of counsel in effectuating service. See
Majority Op. 15–17, 21–24. Even if, as here, it was a one-time
mistake without an iota of prejudice to the defendants, or any
material or recurring burden on the courts.
At bottom then, under the majority opinion’s view of Rule
4(m), no weightier showing is required for a case-ending
dismissal with de facto prejudice—one of the harshest
sanctions in the district court’s arsenal—than for a dismissal
without any prejudice at all.
The Federal Rules require far more than that verbal shrug
of the shoulders before shutting a plaintiff out of court. No one
disputes—nor could they under our circuit’s precedent—that
Rule 41(b) requires a weighty showing of exceptional
misconduct and dilatoriness by counsel, and the absence of any
reasonable probability of service being completed, before a
case can be dismissed with prejudice for a failure of service.
Yet the majority opinion offers no defense of its holding that
district courts may use Rule 4(m) to knowingly dismiss cases
with the exact same prejudicial effect but without the same
weighty showing. The Federal Rules should not be read to be
so self-contradictory.
The correct approach, instead, is to require district courts
that are aware of the prejudicial consequences of dismissal to
19
make the same findings of repeated misconduct or dilatoriness
that are required for a dismissal with prejudice for failure to
serve under Rule 41(b). That is exactly what the Fifth Circuit
requires.
At a minimum, district courts must give focused
consideration and appropriate weight in their Rule 4(m)
analyses to whether the harsh sanction of locking the
courthouse doors to a plaintiff’s claims is warranted, as the
Eighth, Ninth, Tenth, and Eleventh Circuits require. The
majority opinion’s interpretation of Rule 4(m) contradicts the
law of those circuits as well.
A
1
By failing to differentiate in its review between a case-
ending dismissal with actual prejudice and the dismissal
“without prejudice” that Rule 4(m) allows, the majority
opinion creates a square conflict with the law of the Fifth
Circuit. That court has held that, “where the applicable statute
of limitations likely bars future litigation, a district court’s
dismissal of claims under Rule 4(m) should be reviewed under
the same heightened standard used to review a dismissal with
prejudice.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321,
325–326 (5th Cir. 2008). Such a dismissal “is an extreme
sanction that deprives a litigant of the opportunity to pursue his
claim.” Id. at 326 (quoting Gonzalez v. Firestone Tire &
Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980)). As a result,
such a dismissal is allowed only where (1) there is “a clear
record of delay” or “contumacious conduct” by the plaintiff,
and (2) a “lesser sanction would not better serve the interests
of justice.” Id. at 326 (internal quotation marks and citations
omitted).
20
The Fifth Circuit means what it says, and plainly would
have reversed the orders of dismissal in Morrissey’s and
Stephenson’s cases. A “clear record of delay” must be more
than “a few months”—dismissal is generally reserved for
“egregious and sometimes outrageous delays.” Millan, 546
F.3d at 326–327 (internal quotation marks and citations
omitted). And “contumacious conduct” is not satisfied by mere
“negligence—regardless of how careless, inconsiderate, or
understandably exasperating” it is. Id. at 327. Rather, the
conduct must evince a “stubborn resistance to authority[.]” Id.(internal quotation marks and citation omitted); see also
Thrasher, 709 F.3d at 512–513 (“To warrant dismissal, we
must find a delay ‘longer than just a few months; instead, the
delay must be characterized by significant periods of total
inactivity.’”) (citation omitted). And under the Fifth Circuit
rule, a dismissal generally is appropriate only if the plaintiff
himself (not his attorney) has caused the delay, there is actual
prejudice to the defendant, or there is delay caused by
intentional conduct. Millan, 546 F.3d at 326; see also Sealed
Appellant v. Sealed Appellee, 452 F.3d 415, 418 (5th Cir. 2006)
(“Another aggravating factor that is present here is that the
delay could have only been intentional. * * * [W]e can only
conclude that counsel intentionally failed to cause effectuation
of service when the furnishing of information for service of
process [was] a simple task[.]”) (internal quotation marks and
citation omitted).
In adopting its standard, the Fifth Circuit has equated an
effectively prejudicial dismissal under Rule 4(m) with a
dismissal with prejudice for failure to prosecute under Rule
41(b). See Millan, 546 F.3d at 326. “In general, the federal
courts have allowed a dismissal to be ordered with prejudice
[under Rule 41(b)] only on a showing of a ‘clear record of delay
or contumacious conduct by the plaintiff’” (as opposed to
“mere negligence”) and a showing that a “lesser sanction
21
would not serve the interests of justice.” WRIGHT & MILLER,
FEDERAL PRACTICE & PROCEDURE § 2369 (quoting In re
Deepwater Horizon, 922 F.3d 660, 666 (5th Cir. 2019)). While
the precise verbal formulations governing dismissal under Rule
41(b) differ across circuits, “[a] very impressive number of
federal courts throughout the Nation have expressed the
opinion, quite appropriately, that ‘dismissal with prejudice is a
drastic sanction to be applied only in extreme situations.’” Id.§ 2369 (citations omitted); see also id. § 2370.1 (compiling the
specific tests used in each circuit for dismissal with prejudice
under Rule 41(b)).
The Fifth Circuit is right: There is no “principled reason
why a district court’s dismissal of claims due to a delay
between filing and service should be subjected to a lower
standard of review merely because the district court
characterizes the delay as a failure to timely or properly serve
the defendant” under Rule 4(m), “as opposed to a failure to
prosecute” through a service failure under Rule 41(b). Millan,
546 F.3d at 326.
Had the Fifth Circuit’s standard been applied to
Morrissey’s and Stephenson’s cases, the district courts’ orders
of dismissal would have been considered unequivocal abuses
of discretion for failure to apply the correct legal standard.
Neither district court in this case found a record of delay in the
attorneys’ first-failed efforts at service. Neither did they find
anything remotely approaching contumacious or prejudicial
conduct. No one disputes that proper service could have been
effectuated in short order. And the dismissal orders show no
sign of considering for a minute whether any lesser sanction
might suffice. As a result, the only explanation for why
22
Morrissey’s and Stephenson’s cases abruptly ended while
those in the Fifth Circuit have continued is geography.3
2
By allowing district courts the discretion to accord
negligible significance to a dismissal’s prejudicial
consequence—or, as in Stephenson’s case, to refuse to consider
it at all—the majority opinion also conflicts with the law of the
Eighth, Ninth, Tenth, and Eleventh Circuits. Those circuits
require that district courts at least give the fact that a dismissal
is with effective prejudice specific consideration and particular
weight in deciding whether to dismiss a case for procedural
missteps or instead to deploy a lesser sanction.
For example, the rule in the Eleventh Circuit is that, when
a dismissal without prejudice would effectively foreclose
future litigation because of the statute of limitations, such a
dismissal is “tantamount to a dismissal with prejudice” and
must be treated as a “drastic remedy[.]” Mickles v. Country
Club Inc., 887 F.3d 1270, 1280 (11th Cir. 2018) (internal
3
The majority opinion takes issue with the fact that Morrissey
and Stephenson did not raise the argument that a heightened standard
should apply given the prejudicial effect of dismissal until their
motions for reconsideration. See Majority Op. 11 n.3. But there is,
of course, a simple explanation for why the argument was not raised
until the motion for reconsideration stage: Both district courts sua
sponte dismissed the cases without so much as issuing an order to
show cause, let alone a chance to raise arguments. The record
indicates that neither Morrissey’s nor Stephenson’s attorney realized
that service had been fatally defective for failure to serve the U.S.
Attorney and the Attorney General until the district courts dismissed
their cases. See Morrissey App. 21–24; Stephenson App. 23–26. So
they raised their arguments for a heightened standard at their first
practical opportunity.
23
quotation marks and citation omitted); In re Cutuli, 13 F.4th
1342, 1348 (11th Cir. 2021) (“The bankruptcy court acted well
within its discretion when it rested its extension decision on the
fact that dismissing the case for improper service would
amount to a dismissal with prejudice because the statute of
limitations on [the plaintiff’s] claim had expired.”).
Applying that rule, the court in Levy v. NCL (Bahamas),
Ltd., 686 F. App’x 667 (11th Cir. 2017) (per curiam), reversed
a district court’s dismissal for failure of service that, while
denominated without prejudice, was with effective prejudice
due to the running of the statute of limitations, id. at 669, 671.
The court of appeals ruled that “even if a dismissal order
expressly states that the dismissal is without prejudice, such a
dismissal operates as one with prejudice if it has the effect of
precluding the plaintiff from refiling her claim due to the
running of a statute of limitations.” Id. at 670. For that reason,
the court remanded the case for the district court to apply Rule
41(b)’s heightened standard requiring “a finding of delay or
willful misconduct and a determination that lesser sanctions
would be inadequate.” Id. at 671.
Under its precedent, then, the Eleventh Circuit makes it
“incumbent upon the district court” to “clearly consider”
whether a dismissal would effectively “bar[] the plaintiffs from
refiling their claims[.]” Lepone-Dempsey v. Carroll County
Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007). So even
though the running of the statute of limitations does not
“require” the district court to extend time for service, it
“militate[s] in favor” of doing so. Horenkamp v. Van Winkle
& Co., 402 F.3d 1129, 1133 (11th Cir. 2005); see also Hong-
Diep Vu v. Phong Ho, 756 F. App’x 881, 883 (11th Cir. 2018)
(per curiam) (district court abused its discretion under Rule
4(m) by failing to address whether “dismissal without prejudice
would act as a dismissal on the merits” due to the statute of
24
limitations); Reis v. Commissioner, 710 F. App’x 828, 830
(11th Cir. 2017) (per curiam) (vacating dismissal because the
district court did not “sufficient[ly] expla[in]” whether it
considered “the possibility that Plaintiff would be barred from
refiling by the pertinent statute of limitations”) (internal
quotation marks and citation omitted).
The Tenth Circuit too has held that when the statute of
limitations renders a dismissal without prejudice “for all
practical purposes, a dismissal with prejudice[,]” the “severe
sanction” of dismissal is “applicable only in * * * extreme
circumstances[.]” Gocolay v. New Mexico Fed. Sav. & Loan
Ass’n, 968 F.2d 1017, 1021 (10th Cir. 1992) (emphasis in
original) (internal quotation marks and citation omitted). Such
a consequential dismissal, the Tenth Circuit has ruled, “should
be used as a weapon of last, rather than first, resort.” Id.(internal quotation marks and citation omitted). Since the law
“favors the resolution of legal claims on the merits[,]”
dismissal is generally appropriate “only where a lesser sanction
would not serve the interest of justice.” Id. (internal quotation
marks and citation omitted); see also Martinez v. Martinez, 294
F. App’x 410, 416–417 (10th Cir. 2008) (reversing dismissal
for abuse of discretion where it “effectively eliminated [the
plaintiff’s] ability to pursue [his] claims,” finding it was
“particularly egregious in that it seriously affect[ed] the
perceived fairness of the involved judicial proceedings”). The
Tenth Circuit has also emphasized that district courts should
consider whether the plaintiff had “notice of the potential
consequences” before dismissing with effective prejudice. See
Rodriguez v. Colorado, 521 F. App’x 670, 672 (10th Cir. 2013)
(reversing where the district court failed to consider the case-
ending consequences of dismissal or whether the plaintiff was
aware of those consequences).
25
As applied to dismissals under Rule 4(m), that principle
means that district courts must “consider the limitations period
in deciding whether to exercise [their] discretion[.]” Espinoza,
52 F.3d at 842. Of particular relevance here, the Tenth Circuit
has specifically pointed to the Federal Rule’s “solicitous
attitude toward plaintiffs faced with ‘the complex requirements
of multiple service’ under Rule 4(i)” as a factor that district
courts should consider in determining whether to grant a
permissive extension. Id.; see also Dahn v. United States, 77
F.3d 492, at *2–*3 (10th Cir. 1996) (unpublished table opinion)
(instructing the district court to consider “whether plaintiff’s
* * * claim would now be barred if she had to refile” and the
complex service requirements of Rule 4(i) on remand);
Shepard v. United States Dep’t of Veterans Affs., 819 F. App’x
622, 624 (10th Cir. 2020) (affirming where plaintiff failed to
serve “any federal employee or entity” under Rule 4(i), but
suggesting the result would have been different had “she made
any effort to mail the first amended complaint and summons”
to the agency, U.S. Attorney, or Attorney General).
The Ninth Circuit, meanwhile, has described the situation
in which plaintiffs “cannot re-file their action because the
statute of limitations has run” as reflecting “the ultimate
prejudice of being forever barred from pursuing their claims.”
Lemoge v. United States, 587 F.3d 1188, 1196 (9th Cir. 2009).
In that circuit, when a case is dismissed with effective prejudice
under Rule 4(m), and there would be “no or only slight
prejudice to the opposing party” if the case were reinstated, the
district court must “consider, and give appropriate weight to,”
the “substantial prejudice” to the plaintiffs. Id. at 1195–1196.
In direct contrast with the majority opinion here, the Ninth
Circuit in Lemoge reversed an order of dismissal as an abuse of
discretion because, although the district court “acknowledged”
the plaintiffs’ argument that they would be barred from refiling
26
their action due to the statute of limitations, “the district court
neither considered prejudice to the [plaintiffs] in its analysis of
prejudice, nor gave it any apparent weight.” 587 F.3d at 1195.
The court held that, given the plaintiffs’ inability to re-file and
their effort to comply with the court’s orders, they were entitled
to a discretionary extension. Id. at 1198. The court did so even
though the plaintiffs’ failure to seek relief until seven months
after the case was dismissed and their failure to “identify the
correct agency to serve” were “negligent, and seriously so[.]”
Id. at 1196–1198; see also Harper v. Wright, 744 F. App’x 533,
534 (9th Cir. 2018) (holding that dismissal under Rule 4(m)
was an abuse of discretion where, among other factors, the
plaintiff’s claims would be time-barred after dismissal);
Immerman v. United States Dep’t of Agric. ex rel. Veneman,
267 F. App’x 609, 610 (9th Cir. 2008) (concluding that the
district court abused its discretion in dismissing the plaintiff’s
complaint when there had been “confusion regarding the
service instructions” and “the statute of limitations had run”).
The Eighth Circuit, too, has ruled that a district court must
actually weigh the case-ending effect of a dismissal against
other considerations before shutting the plaintiff out of court.
Citing the “lethal effect” of a statute-of-limitations bar and the
“judicial preference for adjudication on the merits, which goes
to the fundamental fairness of the adjudicatory process[,]” the
Eighth Circuit has said that “the district court must weigh the
effect on the party requesting the extension against the
prejudice to the defendant.” Kurka v. Iowa County, 628 F.3d
953, 956, 958–959 (8th Cir. 2010) (formatting modified)
(affirming dismissal given the “highly unusual” facts of the
case in which the plaintiff had “lied to the court” about the
defendant’s notice of the suit and concurrence in a scheduling
order); see also Adams v. AlliedSignal Gen. Aviation Avionics,
74 F.3d 882, 887–888 (8th Cir. 1996) (affirming effective
dismissal with prejudice only after the district court “carefully
27
considered plaintiffs’ arguments on the service issues,” “gave
plaintiffs repeated opportunities to correct their service
insufficiencies[,]” and the record suggested that the delay was
a “conscious strategic or tactical decision”).4
Unlike the majority opinion, these circuits hew to the
Federal Rules’ strong preference for not shutting parties out of
court for an initial technical mistake or negligent misstep by
4
In the Second Circuit, when “dismissal without prejudice in
combination with the statute of limitations would result in a dismissal
with prejudice,” the district court abuses its discretion in a case under
Rule 4(m) if it fails to “weigh[] the impact that a dismissal or
extension would have on the parties.” Zapata v. City of New York,
502 F.3d 192, 197 (2d Cir. 2007) (emphasis in original); id. at 199(affirming dismissal because plaintiff “made no effort to effect
service” on individual defendant within the service period). In other
words, the district court “must carefully consider the impact that the
dismissal would have on the parties[,]” including the “serious
consequences” of a statute-of-limitations bar on refiling. Harper v.
City of New York, 424 F. App’x 36, 40 (2d Cir. 2011) (internal
quotation marks and citation omitted).
The Seventh Circuit has held that when the statute of limitations
would bar a new complaint—and especially when, as here, that
limitations period is “extremely short”—it is “incumbent upon the
district court to fully consider” and give “close attention” to the fact
that dismissal will result in a “suit [that] cannot be resolved on the
merits[.]” Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338,
341 (7th Cir. 1996) (reversing and remanding after the district court
refused to consider statute-of-limitations argument on the ground
that it “was not before it for consideration”); see also Jones v. Ramos,
12 F.4th 745, 750 (7th Cir. 2021) (affirming dismissal only after the
district court “methodically considered” relevant factors including a
statute-of-limitations bar and “reweighed them” after Rule 60(b)
motion that revealed prejudice to the defendants).
28
their attorneys, and they harmonize their treatment of
dismissals with effective prejudice under Rule 4(m) with their
circuit law governing dismissals for failure to properly
prosecute a case under Rule 41(b). They all require some form
of explicit and meaningful weighing of a statute-of-limitations
bar on refiling in the court’s decision whether to dismiss.
Here, by contrast, the majority opinion approves the
dismissal of Morrissey’s case based on nothing more than
counsel’s first-time mistake, and only a fleeting nod to the
dismissal’s case-ending consequences. See Morrissey App. 33.
Worse still, the district court’s dismissal in Stephenson gave no
consideration at all to the plaintiff’s inability to refile. See
Stephenson App. 36 (refusing to even consider Stephenson’s
statute-of-limitations argument because it was not made prior
to the sua sponte dismissal, and so “the time for that argument
ha[d] passed”).5 Both district courts’ approaches would have
5
The majority opinion invokes the Third Circuit for its holding
that the running of the statute of limitations does not require an
extension of time. Majority Op. 16 (citing Petrucelli v. Bohringer &
Ratzinger, 46 F.3d 1298, 1306 (3d Cir. 1995)). This is beside the
point. No one is arguing that an extension is automatically required.
The issue in this case is what weight the effective prejudice of the
dismissal should carry in the balancing of factors. If nothing more
than a mention is required, then Rule 41(b)’s requirements for
dismissal with prejudice will be easily circumvented under the label
of a Rule 4(m) dismissal, as the majority opinion allows here.
Presumably that is why other Third Circuit cases have reversed
district courts for failing to perform the “significant and required”
step of considering whether the running of the statute of limitations,
along with other factors, warrants a discretionary extension. See,
e.g., Cain v. Abraxas, 209 F. App’x 94, 97 (3d Cir. 2006) (per
curiam); Veal, 84 F. App’x at 256; Walker v. Pennsylvania Dep’t of
Transp., 812 F. App’x 93, 94–95 (3d Cir. 2020) (per curiam)
(reversing dismissal as an abuse of discretion where the district court
29
been rejected as abuses of discretion under the governing law
in those other circuits.
The majority opinion claims that this court’s law under
Mann mirrors that of the other circuits since it “require[s]
consideration of all relevant equitable factors before dismissal,
including the running of a statute of limitations.” Majority Op.
17 n.7 (citing Mann, 681 F.3d at 376). But the conflict is with
the majority opinion here, not with Mann. Had the majority
opinion required “consideration of * * * the running of the
statute of limitations,” id., then the judgment in Stephenson’s
case would have been reversed not affirmed because the district
court refused even to consider the prejudicial consequences of
its order, blaming Stephenson for failing to object to the
dismissal before it even occurred. Stephenson App. 36; see
also Stephenson App. 1 (notifying counsel only that a dismissal
“without prejudice” might result).
failed to provide notice of the potential dismissal and “there [was] no
indication that it appreciated the running of the statute of limitations,
or any other considerations potentially favorable to [the plaintiff]”).
The district courts’ decisions here would not survive under those
Third Circuit cases either.
The Fourth Circuit’s law is somewhat unclear. Compare
Mendez v. Elliot, 45 F.3d 75, 79 (4th Cir. 1995) (wrongly holding
that discretionary extensions are not available at all under Rule
4(m)), with Jones v. United States, 477 F. App’x 980, 981 (4th Cir.
2012) (per curiam) (“[T]he district court’s dismissal—even though it
was without prejudice—effectively terminated her ability to pursue
her claim. * * * We therefore find that the district court’s order
denying Jones’ motion was an abuse of its discretion.”).
The First and Sixth Circuits do not appear to have addressed the
issue.
30
Likewise, the majority opinion should have reversed the
order of dismissal in Morrissey’s case because Mann requires
that dismissal under Rule 4(m) “leave[] the plaintiff ‘in the
same position as if the action had never been filed[.]’” 681
F.3d at 376 (emphasis added and citations omitted). Needless
to say, that did not happen here as the district court’s dismissal
order made Morrissey’s position irretrievably worse and left
his case permanently foreclosed. Ensuring that the plaintiff is
left in the same position as if the action had never been filed
necessarily requires giving material weight to the fatal
consequences of dismissal when the statute of limitations has
run. Cf. Majority Op. 17 n.7.
The majority opinion emphasizes the abuse of discretion
standard and states that a disagreement as to “how Mann
applies to the facts of these cases” is not a reason to disturb the
district court’s decision. Majority Op. 19 n.9. The problem
with the district court’s decision, though, was its failure to
apply the correct rule of law in deciding to dismiss despite
knowing that the statute of limitations had run. And as the
majority opinion agrees, when the district court was
“influenced by [a] mistake of law[,]” the abuse of discretion
standard requires reversal. Majority Op. 9 (quoting United
States v. Volvo Powertrain Corp., 758 F.3d 330, 345 (D.C. Cir.
2014) (internal quotation marks and citation omitted)).
In short, my disagreement with the majority opinion is not
about weighing case-specific facts differently under the abuse-
of-discretion standard. Compare Majority Op. 19 n.9. Our
disagreement is one of law concerning what the proper legal
standard should be in this circuit for the entry of prejudicial
dismissals, given both Rule 4(m)’s plain-text limitation to
dismissal “without prejudice,” and the need to harmonize the
operation of Rule 4(m) and Rule 41(b)’s requirements for
dismissals with prejudice. Almost every other federal court of
31
appeals, as a matter of circuit law, would have required the
district courts before entering an order of dismissal to have at
least candidly acknowledged the irreversible consequences of
dismissal since the statute of limitations had run and to have
explained why their discretionary balancing of factors justifies
that severe result, particularly in the absence of any discernible
prejudice to the defendant or material burden on the court. By
allowing district courts to knowingly dismiss cases with
effective prejudice under Rule 4(m) for the most pedestrian of
reasons—or for no reason at all—the majority opinion ignores
Rule 4(m)’s textual restriction to dismissals “without
prejudice,” and it pulls the legs out from under the demanding
standard established for dismissing cases with prejudice for
failure of service under Rule 41(b).
B
The majority opinion gets crosswise with circuit precedent
governing dismissals with prejudice and requiring a heightened
showing before dismissing a case against a foreign government
due to failure to effect service. In both of those situations, the
law in this circuit is that dismissals with prejudice are
ordinarily permissible only if (i) the plaintiff has engaged in
egregious misconduct or has caused an especially lengthy and
unexcused delay, and (ii) less dire alternatives have been tried
without success. Dismissals for lack of service, in particular,
are only allowed if there is no reasonable prospect that service
could be obtained.
There is no sound reason—certainly none is offered by the
majority opinion—for treating a dismissal that the district court
knows will have prejudicial effect any differently than other
dismissals with prejudice for failure to effect service under the
Federal Rules.
32
1
As noted earlier, Federal Rule of Civil Procedure 41(b)
authorizes federal courts, upon a defendant’s motion, to
dismiss cases with prejudice when a plaintiff fails to prosecute
his or her claims or fails to comply with the Federal Rules or a
court order. FED. R. CIV. P. 41(b); Semtek, 531 U.S. at 505.
Courts also have the inherent power to dismiss cases sua sponte
on failure-to-prosecute grounds. See Link v. Wabash R.R. Co.,
370 U.S. 626, 629–630 (1962); Peterson, 637 F.3d at 418.
Dismissals for failure to prosecute ordinarily are with
prejudice. Semtek, 531 U.S. at 505.
Failure to prosecute encompasses a variety of procedural
failures, including most relevantly here, a failure to serve the
defendant. See Smith-Bey, 852 F.2d at 594 (reviewing Rule
41(b) dismissal for failure to serve); see also, e.g., English-
Speaking Union, 353 F.3d at 1016 (same for failure to file
brief); Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 166–
167 (D.C. Cir. 1990) (same for failure to appear at hearing).
Our circuit law is settled that, because the Federal Rules
favor the resolution of disputes on the merits, courts must
hesitate before imposing the “harsh sanction” of a dismissal
with prejudice for these procedural technicalities. Peterson,
637 F.3d at 418 (quoting English-Speaking Union, 353 F.3d at
1016). More specifically, dismissals with prejudice are
“ordinarily limited to cases involving egregious conduct by
particularly dilatory plaintiffs, after ‘less dire alternatives’ have
been tried without success.” Id. (quoting Noble v. United
States Postal Serv., 71 F. App’x 69, 69 (D.C. Cir. 2003) (per
curiam)); see also, e.g., Cohen, 819 F.3d at 483; Bristol
Petroleum, 901 F.2d at 167 (dismissal with prejudice “may be
an unduly severe sanction for a single episode of misconduct”);
33
Trakas v. Quality Brands, Inc., 759 F.2d 185, 186–187 (D.C.
Cir. 1985).
As relevant here, Rule 41(b) dismissals for a delay in
service are “appropriate * * * only when there is no reasonable
probability that service [of process] can be obtained.” Smith-
Bey, 852 F.2d at 594. In Smith-Bey, for example, we reversed
the district court’s dismissal for failure to prosecute after a pro
se prisoner had failed to serve process and undertook no
activity for more than eight months. Id. Applying the Rule
41(b) standard, we held that dismissal was inappropriate
because there was a reasonable prospect that the U.S. Marshals
could effect service. Id. Eight months of inactivity was not
enough to warrant a prejudicial dismissal, we said, especially
because the district court had not issued an order to show cause
to give the plaintiff an opportunity to explain why the case
should not be dismissed. Id.Here, the districts courts dismissed these cases for the
same procedural failure—failure to effect timely service of
process. And although the missteps by counsel here involved
far less delay, the sanction imposed is far harsher than in Smith-
Bey. For in Smith-Bey, the dismissal was genuinely without
prejudice under the local rule. See 852 F.2d at 593–594;
compare FED. R. CIV. P. 41(b) (“Unless the dismissal order
states otherwise, a dismissal under this subdivision * * *
operates as an adjudication on the merits.”). Nonetheless, we
required that the district court find egregious misconduct and
determine that service could not reasonably be effected before
ordering dismissal even without prejudice. Smith-Bey, 852
F.2d at 594.
The same heightened showing and focused analysis should
have been required here, where the consequences of dismissal
are far more drastic—fully equivalent to dismissals with
34
prejudice under Rule 41(b). After all, there is no “principled
reason why a district court’s dismissal of claims due to a delay
between filing and service should be subjected to a lower
standard of review merely because the district court
characterizes the delay as a failure to timely or properly serve
the defendant” under Rule 4(m), “as opposed to a failure to
prosecute” under Rule 41(b). Millan, 546 F.3d at 326.
2
We have applied the same heightened standard to
dismissals for failure to serve foreign governments under the
technical service requirements of the Foreign Sovereign
Immunities Act, 28 U.S.C. § 1608. In those cases, dismissals
are “ordinarily limited to cases involving egregious conduct by
particularly dilatory plaintiffs, after less dire alternatives have
been tried without success.” Angellino v. Royal Fam. Al-Saud,
688 F.3d 771, 775 (D.C. Cir. 2012) (internal quotation marks
and citation omitted). In particular, a dismissal “due to a ‘delay
in service is appropriate * * * only when there is no reasonable
probability that service can be obtained’ or there is a ‘lengthy
period of inactivity.’” Id. (omission in original) (quoting
Smith-Bey, 852 F.2d at 594).
To illustrate, in Barot v. Embassy of Zambia, 785 F.3d 26(D.C. Cir. 2015), the plaintiff failed to comply with the Foreign
Sovereign Immunities Act’s complex requirements for serving
her complaint on a foreign embassy, id. at 29. The district court
nominally dismissed the suit without prejudice, but the
dismissal was effectively with prejudice because her claims
would have been time-barred. Id. at 28–29. We reversed the
order of dismissal because there was “clearly * * * ‘a
reasonable prospect that service [could] be obtained.’” Id. at
29 (quoting Novak, 703 F.2d at 1310). The plaintiff, we found,
had acted in good faith, and her “latest service attempt came
35
very close to satisfying the Act’s requirements,” failing only
because her counsel misaddressed the service package. Id.Under those circumstances, we found that the district court had
abused its discretion in dismissing the case based on counsel’s
mistake. Id.The Barot standard maps directly onto the cases before us.
Just as in Barot, the district courts were aware, in entering their
final judgments of dismissal, that the orders would be fatal to
the cases because the time for filing suit had expired. Also like
the plaintiff in Barot, Morrissey and Stephenson attempted in
good faith, but unsuccessfully, to comply with complicated
service requirements. Indeed, they made a major stride in
meeting the rule’s technical requirements by serving the
agency officials; they came up short only because of their
counsel’s misreading or misunderstanding of Rule 4(i)’s
layered obligations.
3
There is no sound reason for our circuit to subject like
cases to so different a legal standard. Neither the government
nor the district courts (nor the majority opinion) suggests that
Morrissey’s or Stephenson’s service error was egregious or
consisted of “bad faith, deliberate misconduct, or tactical
delay.” Peterson, 637 F.3d at 418 (quoting Gardner v. United
States, 211 F.3d 1305, 1309 (D.C. Cir. 2000)); see also Millan,
546 F.3d at 327 (requiring “contumacious conduct” by the
plaintiff, which means a “stubborn resistance to authority”
rather than simple negligence) (internal quotation marks and
citations omitted).
To the contrary, Morrissey and Stephenson each diligently
navigated the years-long administrative process, filed suit
within the 90-day limitations period, and served the named
defendants they were suing within the time allowed by the
36
district court, thereby partially satisfying the service
requirement. In addition, both Morrissey’s and Stephenson’s
counsel were quick to file motions for reinstatement and
reconsideration to explain their confusion and to try to protect
their clients’ claims from the lawyers’ accidental mistakes.
The district courts also had numerous less drastic
alternatives at their disposal. See Peterson, 637 F.3d at 418(allowing dismissal only after “less dire alternatives have been
tried without success”) (internal quotation marks and citation
omitted); Millan, 546 F.3d at 326 (allowing dismissal only
where a “lesser sanction would not better serve the interests of
justice”) (internal quotation marks and citation omitted). They
could have issued orders to show cause once the deadline for
service passed, allowing Morrissey and Stephenson to explain
the harsh consequences of dismissal and the good faith nature
of their mistakes. Or the district courts could have targeted
counsel with financial sanctions. See English-Speaking Union,
353 F.3d at 1022. A dismissal with effective prejudice should
have been the last, not the first, remedy for the attorneys’ initial
missteps. See Peterson, 637 F.3d at 418.
In addition, the length of delay from lack of service was
negligible in both cases. See Barot, 785 F.3d at 29 (explaining
that dismissal may be warranted where there is a “lengthy
period of inactivity”) (internal quotation marks and citation
omitted); Smith-Bey, 852 F.2d at 594 (same); Millan, 546 F.3d
at 327 (dismissal appropriate where there is a “clear record of
delay[,]” i.e., “significant periods of total inactivity”) (internal
quotation marks and citations omitted). The district court
waited just days after the Rule 4(m) service deadline to dismiss
Morrissey’s case, and a little over a month in Stephenson’s
case. We have held that far lengthier time periods of inactivity
do not warrant dismissal. See, e.g., Angellino, 688 F.3d at 777
(reversing dismissal issued thirteen months after filing of
37
complaint); Smith-Bey, 852 F.2d at 594 (same for eight
months). While an extremely lengthy delay could potentially
prejudice a defendant who has actual notice, the delay in these
cases was not “so severe[] as to make it unfair to require the
other party to proceed with the case.” Peterson, 637 F.3d at
418 (alteration in original) (quoting Gardner, 211 F.3d at
1309). Tellingly, the government does not claim to have
suffered any prejudice from the lack of service in either case.
Finally, the record more than supports the existence of a
“reasonable prospect” that Morrissey and Stephenson could
have completed service if given the chance. Barot, 785 F.3d at
29 (quoting Novak, 703 F.2d at 1310); see also Smith-Bey, 852
F.2d at 594 (dismissal appropriate “only when there is no
reasonable probability that service can be obtained”). Both
plaintiffs managed to successfully serve the agency official.
Their failure to serve the U.S. Attorney and the Attorney
General within the relevant time frame was ultimately a result
of their attorneys’ misunderstanding of the rule. See Morrissey
App. 32; Stephenson App. 36. Now informed, counsel stand
ready to complete the final steps in service. See Morrissey
App. 49 (“Plaintiff[] * * * is ready for immediate service on the
United States Attorney and the Attorney General as soon as this
case is reinstated if the Court does so.”) (footnote omitted);
Stephenson Opening Br. 47 (advising that Stephenson would
“cure his service” if given “a reasonable time”).
Neither district court offered a sound reason for its heavy
sanction. In Morrissey’s case, the district court pointed out that
Morrissey was not proceeding pro se. Morrissey App. 34.
True. Yet while pro se status can be a relevant factor favoring
the grant of a discretionary extension in a usual Rule 4(m) case,
see Mann, 681 F.3d at 377, representation by counsel hardly
justifies such an extreme sanction at the first misstep.
38
The court also noted that it had issued a minute order
alerting Morrissey to the approaching service deadline.
Morrissey App. 34. But counsel thought he had complied with
the service rule, so the presence of a reminder does not really
speak to the appropriate sanction for a mistaken reading of the
Rule. Anyhow, notice of an upcoming deadline is different
from notice that the court intends to sua sponte dismiss one’s
case. Notice also means little when it is not accompanied by
an order to show cause that allows an “errant litigant to explain
[his] conduct.” English-Speaking Union, 353 F.3d at 1022; see
also id. at 1023 (faulting district court for offering party “no
opportunity to explain” before dismissing case).
Finally, the district court reasoned that, because Rule
4(i)(4)(A) grants a mandatory extension to a plaintiff who
serves either the U.S. Attorney or the Attorney General,
Morrissey was less deserving of a discretionary extension for
making the analogous error of just serving the agency official
but missing those two extra steps. Morrissey App. 34.6 Quite
the opposite. The presence of a mandatory extension for
missing one part of the complicated process of serving the
United States suggests that a discretionary extension for
partially effecting service as to another part would be
appropriate. After all, those mandatory extensions show that
Rule 4(i)(4)(A) “clearly evinces a solicitous attitude toward
plaintiffs faced with ‘the complex requirements of multiple
service’ under Rule 4(i)[,]” and that same complexity “should
be a factor for the district court’s consideration when it
determines whether a permissive extension of time should be
granted under Rule 4(m).” Espinoza, 52 F.2d at 842. It was
6
Had Morrissey sued the official in his personal rather than
official capacity, he would have qualified for a mandatory extension.
FED. R. CIV. P. 4(i)(4)(B).
39
straight-up error to read the omission from a mandatory
extension as a barrier to a discretionary extension.
As for Stephenson’s case, the district court refused to
consider at all Stephenson’s request for a discretionary
extension, stating that “the time for that argument ha[d]
passed.” Stephenson App. 32–33, 36. But the time for that
argument had passed only because the district court sua
sponte—without so much as an order to show cause—
dismissed Stephenson’s case. It was “unduly severe” to
dismiss the action “without affording [the plaintiff] either an
opportunity to show cause or to explain why the suit should not
be dismissed for inactivity.” Smith-Bey, 852 F.2d at 594; see
English-Speaking Union, 353 F.3d at 1022 (noting importance
of issuing show cause orders before dismissal). So Stephenson
raised his arguments for a discretionary extension at the first
opportunity after dismissal. Cf. Spectrum Health—Kent Cmty.
Campus v. NLRB, 647 F.3d 341, 349 (D.C. Cir. 2011) (“There
may be circumstances in which a motion for reconsideration is
the first opportunity a party has to raise objections—where, for
example, the Board sua sponte decides an issue[.]”).
*****
For legal and practical purposes, whether a dismissal is
knowingly prejudicial under Rule 4(m) or is with prejudice
under Rule 41(b) is a distinction without a difference. This
court’s legal standard governing the former should reflect that
reality. But instead, the majority opinion’s ruling allowing the
harsh sanction of a case-ending dismissal for a mere one-time
mistake puts Rule 4(m) at war with Rule 41(b)’s demanding
standard for dismissals with prejudice, and puts this court into
direct conflict with the law of the Fifth Circuit and squarely at
odds with the law of at least four other circuits. And for what?
The exaltation of “mere technicalities” that hurt no one?
40
English-Speaking Union, 353 F.3d at 1021. Lawyers, like
judges, are human. And humans sometimes make good faith
mistakes. Without more, that hardly merits dealing a case a
mortal blow at the service-of-process stage.
For all of those reasons, I respectfully dissent.