USCA11 Case: 20-14807 Date Filed: 06/03/2021 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14807
Non-Argument Calendar
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D.C. Docket No. 1:20-cv-02936-ELR
TIRAM D. LEWIS,
a.k.a. Sir Terrance Mayfield,
a.k.a. Prince Saladin Selassie,
a.k.a. Honor Saladin Selassie,
Plaintiff-Appellant,
versus
AMERICAN TOWER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 3, 2021)
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
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Tiram D. Lewis, proceeding pro se, appeals the district court’s order
dismissing his pro se civil complaint for lack of service and absence of subject-
matter jurisdiction. He asserts that, as a pro se litigant, he was not required to
continue attempting to perfect service upon American Tower Corporation because
it had actual notice of the suit. He further contends the district court abused its
discretion by not extending the time for service. After review,1 we affirm.
The district court did not err in dismissing Lewis’s complaint. First, a
review of the docket sheet shows that American Tower never returned the service-
waiver form and Lewis did not otherwise effect proper service upon American
Tower. Fed. R. Civ. P. 4(c)(1), (h)(1) (providing a plaintiff properly serves a
corporation-defendant by personally delivering to the corporation’s officer or agent
a summons and a copy of the complaint, and mailing a copy of each to the
defendant, within the time allowed by Rule 4(m)); Fed. R. Civ. P. 4(d)(1)
(providing a plaintiff can request a defendant to waive service by notifying the
defendant-corporation that an action has been commenced and requesting that the
defendant waive service of a summons); Lepone-Dempsey v. Carroll Cnty.
Comm’rs,
476 F.3d 1277, 1282 (11th Cir. 2007) (stating “plaintiffs were
1
We review for abuse of discretion a district court’s dismissal without prejudice for
insufficient service of process under Rule 4(m). Lepone-Dempsey v. Carroll Cnty. Comm’rs,
476 F.3d 1277, 1280 (11th Cir. 2007). “We review de novo the district court's order granting a
motion to dismiss for lack of subject matter jurisdiction.” Dalrymple v. United States,
460 F.3d
1318, 1324 (11th Cir. 2006).
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responsible for formally serving the defendants when the waiver forms were not
returned”). It is noteworthy that the waiver form Lewis filed with the district court
listed himself as the party waiving service, not American Tower. And, despite
Lewis’s contention on appeal, American Tower’s alleged actual notice of the suit
did not cure Lewis’s failure to effect service. See Albra v. Advan, Inc.,
490 F.3d
826, 829 (11th Cir. 2007) (stating this Court requires pro se litigants to conform
with procedural rules and affirming dismissal of pro se litigant’s complaint for
defective service of process).
The district court was also within its discretion to dismiss Lewis’s complaint
without extending the time for service after finding Lewis had failed to show good
cause for his failure to effect timely service and considering any other factors that
would warrant an extension of time based on the facts of the case. See Lepone-
Dempsey,
476 F.3d at 1281-82 (explaining “good cause exists only when some
outside factor, such as reliance on faulty advice, rather than inadvertence or
negligence, prevented service,” and if a district court finds a plaintiff has failed to
show good cause and there is no other circumstance that warrants an extension of
time, it may exercise its discretion to dismiss the action without prejudice
(quotations and alterations omitted)). Thus, the district court did not err in
concluding that Lewis failed to properly effect service upon American Tower and
acted within its discretion by dismissing his complaint without prejudice. See id.;
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Fed. R. Civ. P. 4(m) (providing if a defendant is not served within 90 days of filing
of the complaint, the district court “must dismiss the action without prejudice
against that defendant or order that service be made within a specified time”).
Moreover, the district court did not err in dismissing Lewis’s complaint
because there was no basis for subject-matter jurisdiction. First, Lewis did not
identify any claim arising under federal law in support of his claims against
American Tower. See 28 U.S.C.§ 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the constitution, laws, or treaties of the
United States.”). To support his claim of federal-question jurisdiction, Lewis cited
47 U.S.C. §§ 202, 206, and 207. However, as the district court noted, a review of
these statutes shows they permit a person to sue a telecommunications common
carrier for damages pertaining to unjust or unreasonable discrimination in service
charges and practices.
47 U.S.C. §§ 202, 206, 207. And, while American Tower
appears to be a telecommunications common carrier, Lewis’s claimed injuries to
his person, and the remedies he seeks, do not fall within the prohibited acts and
applicable remedies identified by Congress. See
id., §§ 202, 207. Second, as to
diversity jurisdiction, because Lewis alleged both he and American Tower were
citizens of Georgia, the parties were not diverse and thus diversity jurisdiction was
lacking.
28 U.S.C. § 1332(a)(1); Sweet Pea Marine, Ltd. v. APJ Marine, Inc.,
411
F.3d 1242, 1247 (11th Cir. 2005) (stating diversity jurisdiction requires complete
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diversity of citizenship between all plaintiffs and defendants). Therefore, there
was no basis for subject-matter jurisdiction.
28 U.S.C. §§ 1331, 1332(a)(1).
While a pro se litigant should generally be afforded the opportunity to
amend his complaint, the district court was not required to grant Lewis leave to
amend because amendment would have been futile. See Evans v. Ga. Reg’l Hosp.,
850 F.3d 1248, 1254 (11th Cir. 2017), abrogated on other grounds by Bostock v.
Clayton Cnty., Ga.,
140 S. Ct. 1731 (2020) (generally, before the district court
dismisses an action with prejudice a pro se plaintiff must be given at least one
chance to amend the complaint where a more carefully drafted complaint might
state a claim). Any amendment would not have cured Lewis’s lack of service
under Rule 4(m). And, because none of Lewis’s grievances arose under federal
law and the parties were not diverse, amendment would not have cured the
complaint’s jurisdictional defects. Therefore, it was not an abuse of discretion for
the district court to dismiss the complaint without affording Lewis leave to amend.
AFFIRMED.
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