Wearing v. Savannah State University , 132 F. App'x 813 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 31, 2005
No. 04-11627 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 02-00202-CV-WTM-4
THOMAS L. WEARING,
METASHAR WEARING-BANKHEAD,
Plaintiffs-Appellants,
versus
SAVANNAH STATE UNIVERSITY,
CARLTON E. BROWN, et al.,
Defendants-Appellees.
__________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 31, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Thomas L. Wearing and Metashar Wearing-Bankhead, Connecticut
residents proceeding pro se, appeal the district court’s grant of a motion to
dismiss in their 42 U.S.C. § 1983 action for insufficient service of process.1
Although Appellants admit that they did not serve the Defendants, they request
that we allow them to do so at this time.
We review for abuse of discretion a district court's ruling on dismissal for
failure to timely serve a summons and complaint. See Brown v. Nichols, 8 F.3d
770, 775 (11th Cir. 1993) (analyzing former Fed.R.Civ.P. 4(j)). Pursuant to
Fed.R.Civ.P. 4(c)(1), “the plaintiff is responsible for service of a summons and
complaint within the time allowed under subdivision (m).” Rule 4(m) provides
that:
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 on its own initiative after notice to the plaintiff, shall dismiss the
action without prejudice as to that defendant or direct that service be
effected within a specified time; provided that if the plaintiff shows
good cause for the failure, the court shall extend the time for service for
an appropriate period.
1
The district court alternatively dismissed Appellants’ claims against all Defendants, except
Lieutenant Wilcox, for failure to state a claim and immunity. On appeal, Appellants offer arguments
against both those reasons, and further dispute the denial of a motion to amend their complaint.
Upon review of the record and upon consideration of the parties’ briefs, we find that the district court
did not err in alternatively dismissing on these grounds, or in denying Appellants’ motion to amend.
2
Actual notice of the lawsuit on the defendants’ part does not cure defective
service. Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir. 1991) (interpreting the
120-day period as it appeared in Fed.R.Civ.P. 4(j)).
We conclude that no showing of cause was made in this case. Indeed,
Appellants were on notice as of January 2, 2003, when the Defendants filed their
initial motion to dismiss, that sufficiency of process was at issue. Although the
120-day period provided by Rule 4(m) had expired and the Defendants raised the
issue in their brief, Appellants still made no attempt to correct the defective
service or even to inquire into the alleged deficiency. At the time of the district
court’s order dismissing the case, more than 18 months after Appellants filed their
complaint, Appellants still had not corrected the defective service, or at least
offered any proof that they actually did so. Consequently, dismissal without
prejudice was appropriate under Rule 4(m).
Because Appellants did not perfect service of process on any of the
Defendants within the 120-day period mandated by Rule 4(m), the district court
did not err in granting the motion to dismiss as to all of Appellants’ claims.
Accordingly, we affirm.
AFFIRMED.
3