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Fred Cross v. Arch W. McGarity, 05-13818 (2005)

Court: Court of Appeals for the Eleventh Circuit Number: 05-13818 Visitors: 8
Filed: Nov. 17, 2005
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT November 17, 2005 No. 05-13818 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 05-00026-CV-HL-5 FRED CROSS, Plaintiff-Appellant, versus ARCH W. MCGARITY, E. BYRON SMITH, DR. STEPHEN R. PORTCH, ROBERT T. TRAMMELL, DAVID A. BELL, Defendants-Appellees. _ Appeal from the United States District Court for the Middle District of Georgia _ (November 17, 2005) Befor
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                                                     [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                               FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                         November 17, 2005
                             No. 05-13818
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                   D. C. Docket No. 05-00026-CV-HL-5

FRED CROSS,


                                                           Plaintiff-Appellant,

                                  versus

ARCH W. MCGARITY,
E. BYRON SMITH,
DR. STEPHEN R. PORTCH,
ROBERT T. TRAMMELL,
DAVID A. BELL,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________

                           (November 17, 2005)

Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

       Fred Cross, proceeding pro se, appeals the dismissal of his complaint for

failure to serve process on the defendants under Federal Rule of Civil Procedure

4(m). We affirm.

       We review for abuse of discretion a dismissal without prejudice for failure to

serve process. Brown v. Nichols, 
8 F.3d 770
, 775 (11th Cir. 1993). Rule 4(m)

provides, “If service of the summons and complaint is not made upon a defendant

within 120 days after the filing of the complaint, the court, upon motion or its own

initiative after notice to the plaintiff, shall dismiss the action without prejudice . . . .

[I]f the plaintiff shows good cause for the failure, the court shall extend the time

for service for an appropriate period.” Fed. R. Civ. P. 4(m). Cross filed his

complaint on January 25. On June 16, the period of 120-days to serve process

elapsed. On June 20, the district court ordered Cross to show cause for his failure

to serve process. Cross timely responded on June 27, and in his response, Cross

stated his erroneous belief that the court would serve process for him. The district

court dismissed his complaint on June 30.

       A court may grant an extension to serve process for either “good cause” or

another sufficient ground. Horenkamp v. Van Winkle & Co., 
402 F.3d 1129
, 1132

(11th Cir. 2005). “Good cause” exists “when some outside factor such as reliance

                                             2
on faulty advice, rather than inadvertence or negligence, prevented service.”

Prisco v. Frank, 
929 F.2d 603
, 604 (11th Cir. 1991). Sufficient grounds other than

“good cause” are within the discretion of the district court as guided by the

examples provided in the advisory committee’s notes to Rule 4(m). 
Horenkamp, 402 F.3d at 1132
; Fed. R. Civ. P. 4(m), advisory committee’s notes, 1993

amendments. Cross did not provide “good cause” for his failure to serve process,

and Rule 4(c)(1) provides that Cross, not the court, was responsible for service of

process. The district court did not abuse its discretion when it dismissed Cross’s

complaint.

      AFFIRMED.




                                          3

Source:  CourtListener

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