Tommie Bullock v. United States , 160 F.3d 441 ( 1998 )

CONFIDENTIAL -- NOT FOR PUBLIC RELEASE
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2382
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Tommie Bullock; Ceola Carter; Loretta *
Lourick; Seneca McIntosh; Lyndie C. *
McRoberts; Elmer Webb, Sr.; Paulette *
Williams, *
*
Appellants, *
*
v. *
*
United States of America; Jesse Brown, * On Appeal from the United States
Secretary, Department of Veterans * District Court for the
Affairs; Veterans Administration * Eastern District of Missouri.
Medical Center; Equal Employment *
Opportunity Commission; American * [To be published]
Federation of Government Employees, *
Local #3354; American Federation of *
Government Employees, Local #96, *
*
Appellees. *
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Submitted: October 21 1998
Filed: November 9, 1998
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Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
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PER CURIAM.
Plaintiffs appeal from the dismissal of their action without prejudice under
Federal Rule of Civil Procedure 4(m). We affirm.
On August 20, 1997, Tommie Bullock, Ceola Carter, Aaron Johnson, Loretta
Lourick, Seneca McIntosh, Lyndie McRoberts, Elmer Webb, Betty Williams, and
Paulette Williams filed a pro se complaint. On January 6, the District Court1 noted
that there was no proof of service or entry of appearance for any of the defendants,
and that service of the complaint had not been made within 120 days of filing as
required by Rule 4(m). The Court ordered plaintiffs to show cause within fourteen
days why the action should not be dismissed without prejudice. On January 20, seven
of the plaintiffs--Bullock, Carter, Lourick, McIntosh, McRoberts, Webb, and Paulette
Williams--responded to the court order, asserting that they had relied upon a court
clerk’s statement that he would effect service upon defendants. The District Court2
found these plaintiffs had shown good cause for their failure to serve defendants in
time, and on March 4 granted them a twenty-day extension to effectuate service. On
March 31, the Court noted that defendants had still not been served, and dismissed
plaintiffs’ claims without prejudice.
Rule 4(m) provides that if the summons and complaint are not served upon a
defendant within 120 days after the filing of the complaint, the Court “shall dismiss
1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
2
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
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the action without prejudice . . . or direct that service be effected within a specified
time;
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provided that if the plaintiff shows good cause for the failure, the court shall extend
the time for service for an appropriate period.”
After reviewing the record and the parties’ submissions, we see no evidence
that defendants were properly served with the summons and complaint. Because over
120 days had passed since plaintiffs filed their complaint, and the District Court had
granted a twenty-day extension, we conclude the Court did not abuse its discretion
in dismissing the complaint. See Fed. R. Civ. P. 4(1); Moore v. Jackson, 123 F.3d
1082, 1085 (8th Cir. 1997) (per curiam) (standard of review); Systems Signs Supplies
v. United States Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (per curiam);
cf. Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir. 1985) (per curiam) (district court
did not abuse discretion in dismissing complaint where 170 days passed after
complaint was filed and defendants had not yet been served).
If plaintiffs refile this case in the District Court, they should file their complaint
with the court clerk, from whom they should obtain summonses signed by the clerk
and under seal of the court; plaintiffs should then ensure that the summonses and a
copy of the complaint are served upon defendants in compliance with Rule 4.
Plaintiffs’ other arguments on appeal are without merit. We also deny
plaintiffs’ pending motions.
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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