Jesse Scott v. Michael Leavitt , 379 F. App'x 603 ( 2010 )

FILED
NOT FOR PUBLICATION MAY 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSE SCOTT, Reverend, No. 09-15576
Plaintiff - Appellant, D.C. No. 2:08-cv-01185-PMP-
GWF
v.
KATHLEEN SEBELIUS,* Secretary of MEMORANDUM**
the United States Department of Health
and Human Services,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted May 12, 2010***
San Francisco, California
Before: SILVERMAN, FISHER, and M. SMITH, Circuit Judges.
*
Kathleen Sebelius is substituted for her predecessor, Michael O.
Leavitt, as Secretary of the Department of Health and Human Services, pursuant to
Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff-Appellant Jesse D. Scott filed a complaint in the U.S. District Court
for the District of Nevada against the Secretary of Health and Human Services
(Secretary-HHS), seeking judicial review of an administrative decision denying
Scott coverage under his Medicare Advantage plan for medical costs he incurred
while being treated at a Nevada medical center. The District Court granted the
Secretary-HHS’s motion to dismiss for failure to effectuate proper service in
accordance with Rule 4 of the Federal Rules of Civil Procedure and for lack of
personal jurisdiction. We have jurisdiction under 28 U.S.C. § 1291. We reverse
and remand.
We review a district court’s dismissal pursuant to Rule 4 for abuse of
discretion. See In re Sheehan, 253 F.3d 507, 511 (9th Cir. 2001). To conduct such
a review, however, we must have the ability to discern how the district court
exercised its discretion. In the present case, the District Court dismissed Scott’s
complaint in summary fashion, without providing any explanation of the bases for
its decision. As a result, we are unable to properly fulfill our judicial duty as an
appellate court. See United Nat’l Ins. Co. v. R & D Latex Corp., 141 F.3d 916,
919 (9th Cir. 1998) (“[M]eaningful appellate review for abuse of discretion is
foreclosed when the district court fails to articulate its reasoning.”).
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We note that there may be merit to Scott’s claims. We have held that service
under Rule 4 is “a flexible rule that should be liberally construed so long as a party
receives sufficient notice of the complaint.” Direct Mail Specialists, Inc. v. Eclat
Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (internal quotation
marks omitted). We have articulated several factors that a court may consider in
deciding whether to exercise its discretion, including “a statute of limitations bar,
prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Efaw
v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (internal quotation marks
omitted); see also Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009)
(holding relief was appropriate under Rule 4(m) in light of the plaintiffs being
time-barred from re-filing their action). We are also aware that a district court’s
discretion to either grant an extension of time in which to effect service, or to
dismiss an action entirely for failure to effect service in accordance with Rule 4, is
broad. In re Sheehan, 253 F.3d at 513. Nevertheless, because the District Court
did not articulate its reasons for granting the Secretary-HHS’s motion and
dismissing Scott’s complaint, we cannot determine on this record whether its
decision constituted an abuse of discretion.
Accordingly, we reverse the District Court’s order granting the Secretary-
HHS’s motion and dismissing Scott’s complaint. On remand, the District Court
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should reconsider its order and provide an adequate explanation of the reasons
supporting its decision. We retain jurisdiction of this appeal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
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