Carrie E. Anderson v. Osh Kosh B'Gosh, (11th Cir. 2006)
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[D O NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
F O R THE ELEVENTH CIRCUIT FILED
U .S . COURT OF APPEALS
E L E V E N T H CIRCUIT
A p r il 12, 2006
N o . 05-13921 T H O M A S K. KAHN
N o n - A r g u m e n t Calendar CLERK
D . C. Docket No. 04-03327-CV-JEC-1
C A R R IE E. ANDERSON,
Plaintiff-Appellant,
versus
OSH KOSH B'GOSH,
Defendant-Appellee.
A p p e al from the United States District Court
fo r the Northern District of Georgia
(A p ril 12, 2006)
B efo re CARNES, PRYOR and FAY, Circuit Judges.
P E R CURIAM:
C a rr ie E. Anderson appeals pro se the district court's sua sponte dismissal w ith o u t prejudice, pursuant to Fed.R.Civ.P. 4(m), of her civil complaint against her fo rm er employer, Osh Kosh B'Gosh ("Osh Kosh"), alleging employment d is cr im in a tio n , pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 4 2U.S.C. § 2000e-2(a), and retaliation, pursuant to 42U.S.C. § 2000e-3.
Anderson argues on appeal that this dismissal was an abuse of discretion. For the reaso n s set forth more fully below, we affirm.
O n November 15, 2004, Anderson filed a pro se civil action against Osh K o sh , alleging that it had (1) discriminated against her because of her race, sex, an d age; and (2) retaliated against her for filing a complaint against her manager.
On December 3, 2004, the magistrate judge issued a "Notice to Pro Se Plaintiffs," ad v isin g Anderson that she had to comply with the Federal Rules of Civil P ro ced u re, including serving a summons and a copy of the complaint upon Osh K o s h within 120 days of filing the complaint. On March 31, 2005, two weeks after A n d e rs o n 's 120-day period for completing service had expired, the district court d irected her to show cause, by April 11, 2005, why it should not dismiss the action fo r failure to effect service, pursuant to Rule 4(m).
On April 20, 2005, after Anderson failed to respond to this order, the m ag istrate issued a report, recommending that the court sua sponte dismiss A n d e rs o n 's action for failure to effect timely service. The magistrate also attached to this report an order instructing Anderson that she had until May 2, 2005, to o b ject to the report. Osh Kosh also filed a motion to dismiss, pursuant to F e d .R .C iv .P . 12(b)(4) and (5), arguing that Anderson had failed to effect proper serv ice on it and, instead, had served Osh Kosh with a different complaint that she h ad not filed with the court, in which she was asserting different claims of d is c r im in a tio n .1 A n d e rs o n neither filed objections to the magistrate's report, nor responded to Osh Kosh's motion to dismiss. Instead, on April 26, 2005, she filed a letter with th e court, in which she only addressed the merits of her complaint. On May 25 and 2 6 , 2005, the court adopted the magistrate's report and dismissed Anderson's a ctio n without prejudice, pursuant to Rule 4(m). In doing so, the court explained th a t, although Anderson had filed a pleading reiterating facts contained in her o rig in al complaint, she had failed to serve Osh Kosh with the complaint.
W ith in ten business days of the court's entry of its dismissal order, A n d erso n filed a motion for reconsideration, arguing that she had documents s h o w in g that (1) she sent certified letters to Osh Kosh, and (2) someone had a cc ep te d them. Anderson also attached to this motion documents that she claimed sh o w ed that she served Osh Kosh with a complaint, which contained different c la im s and was dated April 4, 2005. Osh Kosh responded that Anderson had failed e ith e r to effect timely service, or to show cause for this failure. The district court su m m arily denied Anderson's reconsideration motion.
Anderson argues that the district court erred in sua sponte dismissing her co m p lain t without prejudice because she alleged multiple claims of employment d iscrim in atio n . Anderson, however, has not addressed on appeal whether she effected timely service of her complaint on Osh Kosh.
As a preliminary matter, to the extent Anderson filed a motion for reco n sid eratio n , "[a] post-judgment motion may be treated as made pursuant to eith er Fed.R.Civ.P. 59 or 60--regardless of how the motion is styled by the m o v a n t-- d e p e n d in g on the type of relief sought." See Mays v. U.S. Postal S erv ice, 122 F.3d 43, 46 (11th Cir. 1997). Because Anderson has failed to c h a lle n g e this order on appeal, however, we deem waived any challenges to the denial of this reconsideration motion. See Access Now, Inc. v. Southwest Airlines C o ., 385 F.3d 1324, 1330 (11th Cir. 2004) (holding that issues not argued in initial b r ie f are deemed waived).
A lth o u g h we have not articulated in a published opinion a standard of re v iew for sua sponte dismissals under Rule 4(m), we review a district court's g ran t of a motion to dismiss for insufficient service of process, pursuant to F ed .R .C iv .P . 12(b)(5), "by applying a de novo standard to the law and a clear error stan d ard to any findings of fact." Prewitt Enterprises, Inc. v. Organization of P etro leu m Exporting Countries, 353 F.3d 916, 920 (11th Cir. 2003).2 We also g en erally review de novo a court's interpretation of Rule 4 de novo. Id. On the o th er hand, we reviewed for abuse of discretion a district court's dismissal without p reju d ice of a plaintiff's complaint for failure to timely serve a summons and co m p lain t under the predecessor to Rule 4(m), former Fed.R.Civ.P. 4(j).3 Brown v. N ich o ls, 8 F.3d 770, 775 (11th Cir. 1993). Similarly, we review for abuse of d iscretio n a district court's decision whether to grant an extension of time to co m p lete service of process under Rule 4(m). Horenkamp v. Van Winkle And Co., I n c ., 402 F.3d 1129, 1132-33 (11th Cir. 2005). A plaintiff is responsible for serving the defendant with both a summons and th e complaint within the time permitted under Rule 4(m). Fed.R.Civ.P. 4(c)(1).
U n d er Fed.R.Civ.P. 4(h)(1), a corporation may be served with process by d e liv e r in g a copy of the summons and complaint to an officer, managing or general ag en t, or the agent authorized to receive service of process. Fed.R.Civ.P. 4(h)(1).
If a plaintiff fails to serve the defendant properly with a summons and a complaint w ith in 120 days of the plaintiff's filing of his complaint: th e court, upon motion or on its own initiative after notice to the p la in tif f, shall dismiss the action without prejudice . . . or direct that serv ice be effected within a specified time; provided that if the p lain tiff shows good cause for the failure, the court shall extend the tim e for service for an appropriate period.
F e d .R .C iv .P . 4(m). "Good cause" exists "only when some outside factor[,] such as r elia n c e on faulty advice, rather than inadvertence or negligence, prevented serv ice." Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991) (discussing "good cau se" under former Rule 4(j)), superseded in part by rule as stated in Horenkamp, 4 0 2 F.3d at 1132 n.2.
We have determined that, under the current Rule 4(m), even in the absence o f "good cause," district courts have the discretion to extend the time for service of p ro cess. See Horenkamp, 402 F.3d at 1132-33. In reaching this determination, we e x p la in e d that the Supreme Court, albeit as dicta, discussed in Henderson v. United S tates,
Anderson failed to show that she properly served Osh Kosh, pursuant to R u le 4(h)(1), within the 120-day period contained in Rule 4(m). The district court also did not dismiss the action until after it gave Anderson the opportunity to o b ject to the magistrate's recommending dismissal. Moreover, although Osh Kosh d em o n strated that it was aware of Anderson's complaint by filing its motion to d is m is s, a defendant's actual notice is not sufficient to cure defectively executed serv ice. See Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir. 1991) (interpreting th e 120-day period as it appeared in former Rule 4(j)), superseded in part by rule as stated in Horenkamp, 402 F.3d at 1132 n.2.
T o the extent the court did not state whether Anderson had established "good cause" for the delay, in Brown, we vacated an order dismissing an action u n d er the former Rule 4(j), when the plaintiff failed to serve the defendants until sev en months after she had filed her complaint, because the district court had not d e te rm in e d whether the plaintiff's failure was supported by "good cause." See B ro w n , 8 F.3d at 774-75. Anderson, however, neither requested an extension of tim e to complete service, nor explained why "good cause" excused her failure.4 I n d e e d , in the absence of evidence to the contrary, we presume that the district c o u r t, in dismissing Anderson's complaint under Rule 4(m), determined that her failu re to timely serve Osh Kosh was not excused by "good cause." See Burrell v. B o a r d of Trustees of Georgia Military College, 125 F.3d 1390, 1395 (11th Cir. 1 9 9 7 ) (explaining that "[t]rial judges are presumed to know the law and to apply it in making their decisions").
Accordingly, we conclude that the district court did not commit reversible erro r in sua sponte dismissing Anderson's complaint for failure to effect timely serv ice of process, pursuant to Rule 4(m). We, therefore, affirm.
AFFIRMED.
1 Osh Kosh subsequently filed an amended motion to dismiss, clarifying that Anderson filed her original complaint in November 2004, instead of November 2005.
2 Rule 12(b)(5) provides that "[e]very defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto . . . except that the following defenses may at the option of the pleader be made by motion: . . . (5) insufficiency of service of process . . .." See Fed.R.Civ.P. 12(b)(5).
3 The former Rule 4(j) provided: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. See Fed.R.Civ.P. 4(j) (1992).
4 To the extent Anderson was proceeding without counsel, "[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, a defendant's pro se status in civil litigation generally will not excuse mistakes he makes regarding procedural rules. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993) (explaining that we "never [had] suggested that procedural rules in ordinary civil litigation shall be interpreted so as to excuse mistakes by those who proceed without counsel"); see also Wayne v. Jarvis, 197 F.3d 1098, 1104 (11th Cir. 1999) (holding that liberal construction of the pleading requirements for pro se litigants does not equate with liberal deadlines).
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This document cites
- U.S. Supreme Court - McNeil v. United States, 508 U.S. 106 (1993)
- U.S. Court of Appeals for the Eleventh Circuit - 75 Fair Empl.Prac.Cas. (Bna) 1063, 72 Empl. Prac. Dec. P 45,190, 11 Fla. L. Weekly Fed. C 641 Melba J. Burrell, Plaintiff-Appellant, v. the Board of Trustees of Georgia Military College, Et Al., Defendants, Alva L. Baggarly, Individually and in His Official Capacity as Chief Executive Officer of First Federal Savings and Loan Association of Milledgeville, First Federal Savings and Loan Association of Milledgeville, Defendants-Appellees.
- U.S. Court of Appeals for the Eleventh Circuit - Frank Wayne, Plaintiff-Appellant, v. Pat Jarvis, Sheriff, Dekalb County Sheriff Department, Et Al., Defendants-Appellees., 197 F.3d 1098 (11th Cir. 1999)
- U.S. Court of Appeals for the Eleventh Circuit - Prewitt Enterprises, Inc., on Its Own Behalf and on Behalf of all Others Similarly Situated, Plaintiff-Appellant, v. Organization of Petroleum Exporting Countries, Defendant-Appellee., 353 F.3d 916 (11th Cir. 2003)
- U.S. Court of Appeals for the Eleventh Circuit - Access Now, Inc., a Florida Non-Profit Corporation, Robert Gumson, Plaintiffs-Appellants, v. Southwest Airlines Company, a Texas Corporation, Defendant-Appellee., 385 F.3d 1324 (11th Cir. 2004)
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