Filed: Jul. 16, 2008
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 08-10556 JULY 16, 2008 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 07-00542-CV-5-IPJ LOUIS FRANCIES, CHUNG FRANCIES, Plaintiffs-Appellants, versus JOHN BRANDON, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Alabama _ (July 16, 2008) Before CARNES, MARCUS and WILSON, Circuit Judges. PER CURIAM: In t
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 08-10556 JULY 16, 2008 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 07-00542-CV-5-IPJ LOUIS FRANCIES, CHUNG FRANCIES, Plaintiffs-Appellants, versus JOHN BRANDON, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Alabama _ (July 16, 2008) Before CARNES, MARCUS and WILSON, Circuit Judges. PER CURIAM: In th..
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[DO NOT PUBLISH]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
No. 08-10556
JULY 16, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00542-CV-5-IPJ
LOUIS FRANCIES,
CHUNG FRANCIES,
Plaintiffs-Appellants,
versus
JOHN BRANDON,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 16, 2008)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
In this diversity jurisdiction breach of contract and fraud suit, plaintiffs
Louis and Chung Francies appeal from the district court’s dismissal with prejudice
of their complaint on the ground that they failed to serve the defendant, John
Brandon.
On March 27, 2007 the Francies, both Alabama citizens, filed suit in federal
court seeking to enforce the terms of a promissory note, which they allege required
Brandon, a Tennessee citizen, to repay a $125,000 loan. On June 1, 2007 the
Francies’ attorney unexpectedly quit representing them, and Brandon was not
served within 120 days, as required by Federal Rule of Civil Procedure 4(m). As a
result of the failure to serve Brandon, on August 27, 2007 the district court
dismissed the suit without prejudice.
The Francies obtained new counsel, who filed motions to reinstate and for
substitution of counsel on August 31, 2007. On September 4, 2007 the district
court granted those motions, but on the next day it denied the Francies’ additional
motion for service by marshal. When service still had not been made on Brandon
by November 29, 2007 the district court again dismissed the case without
prejudice.
In response to the dismissal, the Francies’ new attorney prepared to refile the
lawsuit as a separate action, but instead was directed by the district court’s docket
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clerk to file a second motion to reinstate the original action. She did so, and on
December 12, 2007 the district court entered an order reinstating the action and
allowing the Francies two weeks to serve the defendant. The deadline for service
would be December 26, 2007. The Francies’ counsel contacted the district court
for help in obtaining an alias summons for Brandon, and the court issued the
summons on December 18. It was delivered to the Francies’ counsel by mail the
next day, December 19, and counsel took the service package to UPS that same
day for overnight shipment to the Hamilton County, Tennessee Sheriff’s Office.
The service package arrived there the following day, but counsel later learned that
the sheriff’s office did not serve Brandon until January 10, 2008.
Meanwhile, on January 4, 2008 when service had not been made by the
December 26, 2007 deadline, the district court dismissed the case with prejudice
for failure to prosecute. On that same day counsel filed a motion for
reconsideration, seeking either reinstatement or dismissal without prejudice. After
counsel had received the dismissal order, she had contacted the sheriff’s office to
determine the status of service and the date of receipt of the service package, and
was informed that the service package had been logged in up there on December
26, 2007. As a result, in the motion for reconsideration, counsel stated that the
package had been delivered to the sheriff’s office on December 26, 2007. The
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district court denied the Francies’ motion for reconsideration on January 7, 2008.
After the motion was denied, counsel contacted UPS whose delivery records
indicated that the package had been delivered to the sheriff’s office on December
20. Counsel then contacted the sheriff’s office to try to determine the reason for
the discrepancy between its login records and the UPS delivery records. Counsel
learned that the delay was likely due to the internal delivery and login processes of
the sheriff’s office, as well as the holiday schedule it had been operating under at
the time. The sheriff’s office relied on an internal carrier to pick up packages from
the central delivery location and take them to its civil processing department, and
because of the office’s holiday schedule that person may not have picked up the
package until December 21. In addition, the civil processing department closed
early on Friday, December 21, 2007, remained closed through the Christmas
holiday on Tuesday, December 25, and did not reopen until Wednesday, December
26—the district court’s deadline for service on Brandon.
On January 31, 2008 the Francies filed their notice of appeal from the
district court’s judgment dismissing their case with prejudice, as well as the court’s
denial of their motion for reconsideration. On February 19, they filed a motion to
supplement the record on appeal to include affidavits describing the circumstances
surrounding the failure to meet the December 26 deadline for service. The district
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court granted their request to supplement the record.
On appeal, the Francies contend that the district court abused its discretion
by dismissing the case with prejudice on the grounds that: (1) the proper remedy
for failure to serve a defendant is dismissal without prejudice; and (2) the district
court failed to make, and on this record could not make, the findings required for a
dismissal with prejudice—that they had engaged in deliberate delay or willful
contempt and that lesser sanctions would be ineffective.
We review a district court’s dismissal of a plaintiff’s complaint with
prejudice under Fed. R. Civ. P. 41 for failure to prosecute only for an abuse of
discretion. See Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337
(11th Cir. 2005). “Under Rule 41(b) of the Federal Rules of Civil Procedure a case
may be dismissed with prejudice for failure to prosecute. Although the rule is
phrased in terms of dismissal on the motion of the defendant, it is clear that the
power is inherent in the court and may be exercised sua sponte whenever necessary
to ‘achieve the orderly and expeditious disposition of cases.’” Lopez v. Aransas
County Indep. Sch. Dist.,
570 F.2d 541, 544 (5th Cir. 1978)1 (citation omitted).
We later clarified that “a dismissal with prejudice, whether on motion or sua
1
In our en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
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sponte, is an extreme sanction that may be properly imposed only when: ‘(1) a
party engages in a clear pattern of delay or willful contempt (contumacious
conduct); and (2) the district court specifically finds that lesser sanctions would not
suffice.’” Betty K Agencies, 432 F.3d at 1337–38 (citations omitted). “[T]he
harsh sanction of dismissal with prejudice is thought to be more appropriate in a
case where a party, as distinct from counsel, is culpable.”
Id. at 1338.
In Betty K Agencies, this Court reversed the district court’s dismissal with
prejudice of the plaintiff’s complaint because the court “merely recited the bare
fact” that the plaintiff had not yet served one of the defendants without making any
finding that the plaintiff’s failure to serve the defendant “showed willful contempt
for court rules” and that “lesser sanctions would be inadequate to correct any
defect in service.” Id. at 1340–41. The evidence the district court relied on in that
case actually revealed that the plaintiff had an innocent explanation for the failure.
Id. at 1340. In addition, Fed. R. Civ. P. 4(m) expressly provides for a lesser
sanction—dismissal without prejudice—than the one the district court imposed.
Id. at 1341.
In this case in its order dismissing the Francies’ suit with prejudice, the
district court reiterated that the case had already been dismissed twice without
prejudice due to the Francies’ failure to obtain service, and that the court had given
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them an additional two weeks to serve Brandon. Because the Francies had again
failed to serve Brandon, the court dismissed the case with prejudice “due to the
plaintiffs’ ongoing failure to prosecute.” While we are mindful of the district
court’s need to control its docket, as in Betty K Agencies the district court here
failed to find that the plaintiffs had engaged in “a clear pattern of delay or willful
contempt,” see id. at 1340. Accordingly, as in Betty K Agencies, in the absence of
such a finding we conclude that the district court abused its discretion by
dismissing the Francies’ action with prejudice.2 See
id. at 1338, 1340–41.
VACATED and REMANDED.
2
We note that, because Brandon was served six days after the district court entered its
order dismissing the case with prejudice and the Francies presented evidence explaining the
delay in service, it is not clear that the record would support a finding of intentional delay or
willful contempt. That is, however, an issue we leave for the district court to decide in the first
instance.
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