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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11672
Non-Argument Calendar
____________________
MIKEADA EFFS,
an individual,
Plaintiff-Appellant,
versus
CITY OF MIAMI,
a Florida municipality,
Defendant,
ALEXI FIGUEROA,
individually and as a former police officer
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2 Opinion of the Court 21-11672
of the City of Miami Police Department,
Defendant-Appellee,
CITY OF MIAMI POLICE DEPARTMENT,
an administrative subdivision of the City of Miami,
Defendant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-20712-JLK
____________________
Before WILSON, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Mikeada Effs sued the City of Miami and former police of-
ficer Alexi Figueroa pursuant to
42 U.S.C. § 1983 and the Florida
Civil Rights Act, alleging that Figueroa had sexually assaulted and
falsely imprisoned her in his patrol car while he was working for
the City of Miami Police Department. The district court ultimately
dismissed Effs’s claims against the City for failure to state a claim,
and it dismissed her claims against Figueroa with prejudice for
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21-11672 Opinion of the Court 3
failure to prosecute, pursuant to Federal Rule of Civil Procedure
41(b). Effs appeals the dismissal of her claims against Figueroa and
the denial of her motion to vacate the dismissal. 1 After a thorough
review of the record, we hold that the district court abused its dis-
cretion by dismissing Effs’s complaint with prejudice, and we
therefore vacate the judgment of dismissal and remand for further
proceedings consistent with this opinion.
I.
Effs filed her complaint in the circuit court for Miami-Dade
County, Florida, in January 2020, just before the four-year statute
of limitations expired. See Chappell v. Rich,
340 F.3d 1279, 1283
(11th Cir. 2003) (Florida’s four-year statute of limitations applies to
§ 1983 cases filed in federal court in Florida). She served the state-
court summons and complaint on the City, which promptly
1 Effs’s notice of appeal refers only to the order denying her motion to vacate
the dismissal pursuant to Rule 60(b). But after considering her notice of appeal
and the parties’ appeal briefs—in which both parties argue the merits of the
dismissal—together, Effs’s intent to appeal both the dismissal of her complaint
and the denial of her subsequent motion is clear. We therefore treat the notice
of appeal “as an effective, though inept, attempt to appeal from the judgment
sought to be vacated.” Foman v. Davis,
371 U.S. 178, 181 (1962); see Nichols
v. Alabama State Bar,
815 F.3d 726, 731 (11th Cir. 2016). Effs’s Rule 60(b) mo-
tion tolled the time for appealing the dismissal because she filed it within 28
days of that order. Fed. R. App. P. 4(a)(4)(A)(vi). Her notice of appeal, filed
within 30 days after the order denying her Rule 60(b) motion, was therefore
timely to appeal the judgment of dismissal. Id.; Fed. R. App. P. 4(a)(1)(A).
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4 Opinion of the Court 21-11672
removed the case to federal court. Effs also made multiple at-
tempts to serve Figueroa but was initially unable to do so.
Meanwhile, Effs’s counsel struggled to keep her case alive in
federal court. After giving Effs one chance to amend her com-
plaint, the district court granted the City’s motion and dismissed
her claims against the City with prejudice for failure to state a
claim. It also set two deadlines related to service on Figueroa,
warning Effs each time that failure to comply with the deadline
could result in dismissal of her claims against Figueroa too.
First, in April 2020, the court directed Effs to provide notice
within 30 days whether she had perfected service on Figueroa. Effs
failed to serve Figueroa or file the required notice within the time
provided.
Several months later, in its order dismissing Effs’s claims
against the City with prejudice, the court noted that Effs had not
responded to its prior order and apparently still had not served
Figueroa. The court pointed out that this delinquency ordinarily
could result in a dismissal for failure to prosecute under Rule 41(b),
but it decided to give Effs one more chance to perfect service on
Figueroa in light of the gravity of her allegations and the logistical
challenges that could arise during the COVID-19 pandemic. It
warned her, however, that her remaining claims would be dis-
missed on November 1, 2020, if she had not submitted proof of ser-
vice on Figueroa by that date.
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21-11672 Opinion of the Court 5
Effs did not perfect service on Figueroa by the court’s No-
vember 1 deadline, but the court did not dismiss her action as it had
warned her it would do. Her claims against Figueroa were still
pending, therefore, when Effs’s investigator found Figueroa at his
cousin’s house and managed to serve him with the state-court sum-
mons and complaint—despite Figueroa’s attempts to evade service
by running into the house and trying to close the garage door in
the investigator’s face—on November 28, 2020, just over ten
months after Effs filed suit and more than eight months after the
City removed the lawsuit to federal court.
A few weeks later, Figueroa filed a pro se motion to dismiss
Effs’s complaint for insufficient service of process. He argued that
the complaint should be dismissed with prejudice because Effs
failed to comply with either of the court’s deadlines for serving
him, and that the November 28 service was invalid because the in-
vestigator threw the complaint at him through the open garage
door rather than handing it to him and because he was served with
the outdated state-court summons and complaint rather than the
amended complaint filed in federal court.
The district court denied Figueroa’s motion to dismiss. It
found that the November 28 service was proper and ordered
Figueroa to file a responsive pleading within 20 days.
Instead, Figueroa filed a renewed motion to dismiss, this
time through counsel, raising the same issues as before and adding
additional arguments that (1) the court’s order warning Effs that it
would dismiss her complaint if she did not file proof of service on
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6 Opinion of the Court 21-11672
Figueroa by November 1 was self-executing, so that the court lost
jurisdiction over the case when Effs did not meet the deadline;
(2) the state-court summons served on Figueroa had “expired” be-
fore it was served; (3) Effs’s complaint was an improper “shotgun”
pleading; and (4) the complaint failed to state a claim against
Figueroa.
This time, the district court granted Figueroa’s motion and
dismissed Effs’s complaint for failure to prosecute pursuant to Fed-
eral Rule of Civil Procedure 41(b). The court focused primarily on
the delay in serving Figueroa, pointing out that Effs had failed to
provide proof of service until December 2020—nearly 11 months
after the case was filed and well beyond the 90-day deadline for ser-
vice under the federal rules—despite the court’s orders directing
her to file notice of service earlier. The court also noted that Effs’s
response to Figueroa’s counseled motion to dismiss had been filed
one day late, and that, almost a year earlier, Effs had failed to re-
spond to the City’s first motion to dismiss. The court did not ad-
dress Figueroa’s new jurisdictional argument or his arguments
about the form and substance of the complaint. Notably, the court
did not alter its prior finding that the November 28 service on
Figueroa was proper, and it acknowledged that it had implicitly
also found that Effs had demonstrated good cause for her failure to
serve Figueroa earlier.
Effs moved to vacate the dismissal under Federal Rule of
Civil Procedure 60(b)(1). She pointed out that the district court had
previously found that good cause existed for the delay in serving
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21-11672 Opinion of the Court 7
Figueroa, and she argued that the one-day delay in filing her re-
sponse to Figueroa’s second motion to dismiss was due to excusa-
ble neglect. She explained that counsel had instructed her parale-
gal, who was working remotely from Spain during the pandemic,
to file the response before the deadline. When the paralegal did
not immediately respond, counsel followed up with a second email
and received confirmation from the paralegal on the day the filing
was due. But despite confirming that he had received the instruc-
tion and would file the brief on time, the paralegal filed the re-
sponse one day late for reasons unknown to counsel.
The district court denied Effs’s motion to vacate the dismis-
sal without explanation. Effs now appeals.
II.
A.
We review a district court’s dismissal pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for abuse of discretion.
Betty K Agencies, Ltd. v. M/V MONADA,
432 F.3d 1333, 1337
(11th Cir. 2005). Under Rule 41(b), a defendant may move to dis-
miss an action or claim against it if the plaintiff fails to prosecute or
to comply with the Rules or a court order. Fed. R. Civ. P. 41(b).
Dismissal under this rule is with prejudice unless the order states
otherwise or the dismissal is for lack of jurisdiction, venue, or fail-
ure to join a party under Rule 19.
Id.
A “dismissal with prejudice, whether on motion or sua
sponte, is an extreme sanction that may be properly imposed only
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8 Opinion of the Court 21-11672
when: (1) a party engages in a clear pattern of delay or willful con-
tempt (contumacious conduct); and (2) the district court specifi-
cally finds that lesser sanctions would not suffice.” Betty K Agen-
cies,
432 F.3d at 1337–38 (emphasis in the original) (citation and
quotation marks omitted). “A finding of such extreme circum-
stances necessary to support the sanction of dismissal must, at a
minimum, be based on evidence of willful delay; simple negligence
does not warrant dismissal.” McKelvey v. AT & T Technologies,
Inc.,
789 F.2d 1518, 1520 (11th Cir.1986); see also In re Se. Banking
Corp.,
204 F.3d 1322, 1332 (11th Cir. 2000) (violations of an order
“caused by simple negligence, misunderstanding, or inability to
comply” do not constitute “willfulness”).
After careful consideration, we conclude that the district
court abused its discretion by dismissing Effs’s complaint with prej-
udice under Rule 41(b). 2 The district court implicitly found that
Effs’s long delay in serving Figueroa and filing proof of service, de-
spite the court’s deadlines and warnings, was willful. But that find-
ing is inconsistent with the court’s previous conclusion that good
cause existed for the delay. The court never reconsidered that con-
clusion—to the contrary, it acknowledged in its dismissal order
2We note that because the applicable statute of limitations had passed, a dis-
missal without prejudice would have barred Effs from refiling her complaint
and thus would have been “tantamount to a dismissal with prejudice, a drastic
remedy to be used only in those situations where a lesser sanction would not
better serve the interests of justice.” Mickles v. Country Club Inc.,
887 F.3d
1270, 1280 (11th Cir. 2018) (citation omitted).
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21-11672 Opinion of the Court 9
that it had found good cause for the delay in service and that Rule
4 required it to extend the time for service where good cause was
shown. See Fed. R. Civ. P. 4(m). And although Effs’s counsel never
explained her failure to provide notice of the status of service on
Figueroa in compliance with the court’s first deadline, her later fil-
ings indicate that the failure may have been based on a misreading
of the order. In any event, the court previously considered that
lapse, which it attributed partly to logistical complications associ-
ated with the COVID-19 pandemic, and it determined that dismis-
sal was not warranted on that ground.
The district court also relied on two other (apparently inad-
vertent) errors of counsel: the failure to respond to the City’s first
motion to dismiss, filed immediately after the case was removed to
federal court, and the one-day-late response to Figueroa’s renewed
motion to dismiss, filed a year later. This kind of error, while
sloppy, generally does not justify the extreme sanction of dismissal
with prejudice. McKelvey, 789 F.2d at 1520. Moreover, dismissal
“is generally inappropriate and lesser sanctions are favored where
neglect is plainly attributable to an attorney rather than to his
blameless client.” Silas v. Sears, Roebuck & Co.,
586 F.2d 382, 385
(5th Cir. 1978); 3 see Betty K Agencies,
432 F.3d at 1338 (“the harsh
sanction of dismissal with prejudice is thought to be more
3 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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10 Opinion of the Court 21-11672
appropriate in a case where a party, as distinct from counsel, is cul-
pable”). Under the circumstances here, therefore, the “draconian
remedy of a dismissal with prejudice” was not justified. Betty K
Agencies,
432 F.3d at 1339.
B.
Figueroa argues that even if the district court abused its dis-
cretion by dismissing Effs’s complaint with prejudice for failure to
prosecute, we should affirm the dismissal on one of two alternate
grounds. First, he contends that the district court’s order warning
that Effs’s claims would be dismissed if she did not file proof of ser-
vice on Figueroa by a certain date was “self-executing,” and that
the district court therefore lost jurisdiction to do anything but dis-
miss the lawsuit when Effs did not file proof of service by the dead-
line.
This argument fails on its initial premise—the district court’s
order did not contain self-executing language. The order warned
that “Plaintiff’s claims against Defendant Alexi Figueroa will be dis-
missed on November 1, 2020 unless Plaintiff furnishes some evi-
dence—on or before this date—that Figueroa has been served with
process in this action.” (emphasis in the original). The order did
not state that it was self-executing, direct the clerk to enter a dis-
missal if the deadline was not met, or otherwise provide for the
automatic dismissal of the action without further order of the
court.
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21-11672 Opinion of the Court 11
Second, Figueroa argues that the complaint was subject to
dismissal due to a defect in process. Specifically, he contends that
the state-court summons served on him had “expired” under Flor-
ida Rule of Civil Procedure 1.070(j) by the time it was served and
therefore had no legal effect.
We reject this argument for several reasons. As an initial
matter, once a case is removed to federal court, federal law governs
matters of procedure related to personal jurisdiction and service of
process. Reynolds v. Behrman Cap. IV L.P.,
988 F.3d 1314, 1323
(11th Cir.), cert. denied,
142 S. Ct. 239 (2021); see
28 U.S.C. § 1448;
Fed. R. Civ. P. 81(c). The federal rule governing the time for ser-
vice does not provide for the “expiration” of a summons, but states
that if a defendant is not served within 90 days after the complaint
is filed, the court “must dismiss the action without prejudice
against that defendant or order that service be made within a spec-
ified time. But if 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). That is the procedure that the district court
followed here, first setting a deadline for service on Figueroa and
then finding good cause for delay and retroactively extending the
time for service.
In any event, to the extent that the applicable Florida rule
affects the viability of the state-court summons as a legal docu-
ment, that rule does not provide for the automatic expiration of a
summons either. See Fla. R. Civ. P. 1.070 (j). Like the federal rule,
Florida’s rule sets a time limit for service of process—120 days after
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12 Opinion of the Court 21-11672
filing the complaint—and provides that if service is not made
within that time period, the court “shall direct that service be ef-
fected within a specified time or shall dismiss the action without
prejudice or drop that defendant as a party; provided that if the
plaintiff shows good cause or excusable neglect for the failure, the
court shall extend the time for service for an appropriate period.”
Id.
Because the mere passage of time did not affect the viability
of the summons served on Figueroa, the date that the summons
was issued was not a defect in the process that deprived the district
court of jurisdiction. We reject Figueroa’s jurisdictional argument
on the additional ground that he waived any objection to personal
jurisdiction by failing to raise the issue in his first motion to dismiss.
See Fed. R. Civ. P. 12(h); In re Worldwide Web Sys., Inc.,
328 F.3d
1291, 1299 (11th Cir. 2003) (“objections to personal jurisdiction (un-
like subject matter jurisdiction) are generally waivable”). Although
Figueroa challenged the sufficiency of service of process under
Rule 12(b)(5), “a litigant must cite each separate Rule 12(b) defense
in the pre-answer motion or if no pre-answer motion is filed, then
in the responsive pleading. Citing one Rule 12(b) defense in the
hope that it will sufficiently raise another defense is not permissi-
ble.” Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs.,
553 F.3d 1351, 1360 (11th Cir. 2008); see also Innovation Ventures,
LLC v. Custom Nutrition Lab’ys, LLC,
912 F.3d 316, 333 (6th Cir.
2018) (“if a defendant makes a motion under Rule 12(b)(2) to (5)
but does not raise lack of personal jurisdiction, any objection is
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21-11672 Opinion of the Court 13
waived by operation of Rule 12(h)(1)”); American Ass’n of Naturo-
pathic Physicians v. Hayhurst,
227 F.3d 1104, 1108 (9th Cir. 2000)
(defendant waived objection to personal jurisdiction when he only
raised improper service of process in his first filing).
* * *
We understand and appreciate the district court’s frustration
with Effs’s counsel, whose neglect or ineptitude nearly—and may
yet—cost Effs her day in court. We caution counsel that if the dis-
trict court had not found that good cause existed for the delay in
serving Figueroa, its dismissal under Rule 41(b) for counsel’s failure
to comply with two court orders regarding service would have
been well within its discretion. “District courts have unquestiona-
ble authority to control their own dockets,” and counsel should not
expect the district court to tolerate late filings and missed deadlines.
Smith v. Psychiatric Sols., Inc.,
750 F.3d 1253, 1262 (11th Cir. 2014).
Although we conclude that the extreme sanction of dismissal with
prejudice or its equivalent was not warranted under the circum-
stances here, the district court may of course consider on remand
whether to impose some lesser penalty.
For the foregoing reasons, the February 26, 2021, judgment
of the district court dismissing Effs’s complaint and closing the ac-
tion is vacated and the case is remanded for further proceedings
consistent with this opinion. Because we conclude that the district
court’s order dismissing Effs’s complaint must be vacated, we need
not address her arguments regarding the denial of her Rule 60(b)
motion.
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14 Opinion of the Court 21-11672
VACATED AND REMANDED.
