Joel Romero v. Commissioner of Social Security ( 2016 )

Case: 16-10337 Date Filed: 11/15/2016 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10337
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-24744-FAM
JOEL ROMERO,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 15, 2016)
Before WILLIAM PRYOR, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 16-10337 Date Filed: 11/15/2016 Page: 2 of 3
Joel Romero appeals the denial of his motion to reconsider the dismissal of
his complaint against the Commissioner of Social Security. The district court
dismissed Romero’s complaint for failure to serve process, see Fed. R. Civ. P.
4(m), and denied his joint motion to reopen and notice of proof of service after the
60-day period expired to appeal an adverse decision by the Commissioner.
Because the dismissal, although made without prejudice, see id., had the effect of
barring Romero from refiling his complaint, we vacate the denial of Romero’s
motion to reconsider and remand for the district court to reopen Romero’s case.
We review the denial of a motion for reconsideration for abuse of discretion.
McKelvey v. AT & T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986). “The
abuse of discretion review requires us to affirm unless we find that the district
court has made a clear error of judgment, or has applied the wrong legal standard.”
Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009)
(internal quotation marks and citation omitted).
The district court abused its discretion when it denied Romero’s motion to
reconsider. Romero moved for reconsideration on the ground that the denial of his
motion to reopen, which occurred after the deadline expired to challenge the
Commissioner’s decision, was “tantamount to a dismissal [of his complaint] with
prejudice.” See Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981). And Romero
attached to his motion to reopen copies of mail receipts that established he had
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Case: 16-10337 Date Filed: 11/15/2016 Page: 3 of 3
completed timely service of process on the Commissioner. Although Romero
delayed filing proof of his service of process, that did “not affect the validity of
service.” See Fed. R. Civ. P 4(l). “[T]he severe sanction of dismissal—with
prejudice or the equivalent thereof—should be imposed only in the face of a clear
record of delay or contumacious conduct.” McKelvey, 789 F.2d at 1520 (internal
quotation marks and citations omitted). Because the denial of Romero’s motion to
reconsider operated to bar him from refiling his complaint, we vacate the order
denying his motion to reconsider and remand for the district court to reopen
Romero’s case.
VACATED AND REMANDED.
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