PAUL S. MORRISSEY, APPELLANT v. ALEJANDRO N. MAYORKAS, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, APPELLEE
No. 20-5024
No. 20-5042
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2020 Decided November 9, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-01956) (No. 1:19-cv-02256)
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
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.
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
I.
Under
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
On September 30, the district court dismissed the case without prejudice pursuant to
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 for neither a mandatory extension of time under
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 of service by October 27, 2019. See
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
Stephenson moved for reconsideration of the order of dismissal under
The district court denied Stephenson‘s motion for reconsideration. Stephenson brought his motion under
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.
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.
Under well-established precedent, we review a district court‘s dismissal under
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
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
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 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,
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,
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 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
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,
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
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
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
The decision of whether to grant Morrissey an extension was committed to the district court‘s discretion, so our review 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
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 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
The district court did not abuse its discretion in denying the
turns
***
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
This argument myopically focuses on the dismissal order‘s reference to “as required by
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
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
To obtain relief under
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.
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. 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.
Stephenson fares no better under the
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
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
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, 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
The majority opinion also cannot be reconciled with this court‘s precedent requiring weighty reasons before dismissing a case with prejudice for failure to complete service under
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, 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)).
2
At the very outset of a federal case,
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 the time.”
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.”
But even in the absence of good cause, courts may, and commonly do, grant discretionary extensions of the service deadline under
Instead, to figure out how to serve the United States, as distinct from its officer or agency, counsel must look back to
The first part of
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.“).
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,
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
Two weeks before that service deadline, the district court issued a minute order reminding Morrissey of the deadline and directing his attention to
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.
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
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
The court also “consider[ed] whether to grant Morrissey a discretionary extension of time to complete service.” 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
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
On that basis, the district court chose to “enforce the time limit in
d
About a month later, Morrissey‘s counsel filed a motion under
***
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
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 then filed a complaint with the Equal Employment Opportunity Commission, alleging violations of the Age Discrimination in Employment Act of 1967,
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
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
On November 20, 2019, the district court issued a minute order, noting that the time for service under
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 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
c
Before the end of the month, Stephenson‘s counsel filed a
Because Stephenson‘s counsel had filed his
The court took a similar approach under
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
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,
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 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
At bottom then, under the majority opinion‘s view of
The
The correct approach, instead, is to require district courts that are aware of the prejudicial consequences of dismissal to make the same findings of repeated misconduct or dilatoriness that are required for a dismissal with prejudice for failure to serve under
At a minimum, district courts must give focused consideration and appropriate weight in their
A
1
By failing to differentiate in its review between a case-ending dismissal with actual prejudice and the dismissal “without prejudice” that
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
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
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
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 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
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
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).
As applied to dismissals under
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
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 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
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 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
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 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,
Likewise, the majority opinion should have reversed the order of dismissal in Morrissey‘s case because Mann requires that dismissal under
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
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)
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
1
As noted earlier,
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
Our circuit law is settled that, because the
As relevant here,
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
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 prejudice under
2
We have applied the same heightened standard to dismissals for failure to serve foreign governments under the technical service requirements of the
To illustrate, in Barot v. Embassy of Zambia, 785 F.3d 26 (D.C. Cir. 2015), the plaintiff failed to comply with the
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
3
There is no sound reason for our circuit to subject like cases to so different a legal standard. Neither the government nor the
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 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
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
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
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
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
* * * * *
For legal and practical purposes, whether a dismissal is knowingly prejudicial under
For all of those reasons, I respectfully dissent.
Notes
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 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.
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.
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.
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.
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
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
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
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
The First and Sixth Circuits do not appear to have addressed the issue.
Had Morrissey sued the official in his personal rather than official capacity, he would have qualified for a mandatory extension.
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.“).