Patterson Ex Rel. Estate of Hemphill v. Whitlock

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2219
JOYCE E. PATTERSON, as Administratix of the Estate of
Yolanda Evett Patterson Hemphill,
Plaintiff – Appellant,
v.
D. WHITLOCK; TERRY SULT; CITY OF GASTONIA; JENNIFER STULTZ;
GASTON COUNTY; ALAN CLONINGER; JAN WINTERS; GASTON COUNTY
EMERGENCY MANAGEMENT SERVICES; WATSON INSURANCE AGENCY,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:06-cv-00476-MR-CH)
Argued: May 11, 2010 Decided: August 23, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Dismissed in part, reversed in part, and remanded by unpublished
per curiam opinion.
ARGUED: Pamela Anne Hunter, Charlotte, North Carolina, for
Appellant. Martha Raymond Thompson, STOTT, HOLLOWELL, PALMER &
WINDHAM, Gastonia, North Carolina, for Appellees. ON BRIEF:
James C. Windham, Jr., STOTT, HOLLOWELL, PALMER & WINDHAM,
Gastonia, North Carolina; Robert D. McDonnell, LAW OFFICE OF
ROBERT MCDONNELL, Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In August 2006, appellant Joyce E. Patterson filed this
civil action in North Carolina state court on behalf of her
deceased daughter’s estate. Following removal of the action to
the Western District of North Carolina, the district court
dismissed Patterson’s thirty-eight-count complaint (the
“Complaint”) for insufficient process. In relevant part, the
court deemed process to be insufficient on the ground that she
had served the defendants with incomplete copies of the
Complaint. As explained below, because the pertinent defendants
waived any such challenge to the sufficiency of process, we
reverse in part and remand. 1
I.
A.
As alleged in the Complaint, Patterson’s daughter — Yolanda
Evett Patterson Hemphill — was shopping at a mall in Gastonia,
North Carolina on August 20, 2004. While waiting to meet a
1
Of the nineteen defendants named in the Complaint,
Patterson identified nine of them as adverse parties in this
appeal. We dismiss those aspects of the appeal pertaining to
two of those nine parties — Gaston County Emergency Management
Services and Watson Insurance Agency — because Patterson failed
to include any contentions relevant to them in her opening
brief. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999) (citing Fed. R. App. P. 28(a)(9)(A)).
3
friend in the mall parking lot, Hemphill was approached and then
pursued by security guards. One of the guards grabbed
Hemphill’s hair, forced her to the ground, and shoved his knee
in her face. Hemphill complained that she was having difficulty
breathing and asked to be released. The security guards
refused, instead detaining Hemphill until Gastonia police
officers arrived. Once on the scene, the officers determined
that Hemphill required medical assistance, and they called for
the Gaston County paramedics.
Patterson alleges that, because it was near the end of
their shift, the paramedics did not fully attend to Hemphill.
Rather, the police officers transported her to the Gaston County
Jail, where Hemphill continued to complain about difficulty
breathing. After her arrival at the jail, Hemphill fell to the
floor and began foaming at the mouth. The authorities then
transported Hemphill to Gaston Memorial Hospital, where she was
pronounced dead upon arrival.
B.
On August 21, 2006, Patterson filed the Complaint on behalf
of her daughter’s estate in the Superior Court for Gaston
County. The Complaint alleged multiple tort claims arising from
Hemphill’s death, as well as civil rights claims predicated on
the state and federal constitutions and 42 U.S.C. § 1983. Named
as defendants were, inter alia, Gaston County; Gaston County
4
Sheriff Alan Cloninger, individually and in his official
capacity; and County Manager Jan Winters, individually and in
his official capacity (collectively, the “County Defendants”).
Other defendants included the City of Gastonia; City police
officer D. Whitlock, individually and in his official capacity;
City Chief of Police Terry Sult, individually and in his
official capacity; and City Mayor Jennifer Stultz, individually
and in her official capacity (collectively, the “City
Defendants”). This appeal implicates Patterson’s claims against
these two categories of defendants only: the County Defendants
and the City Defendants (collectively, the “Defendants”).
C.
1.
On November 16, 2006, the County Defendants made a special
appearance in state court and moved to dismiss the Complaint on
the basis of, inter alia, insufficient service of process. 2 That
same day, the County Defendants — with the other defendants’
consent — timely removed the action to the Western District of
North Carolina, asserting federal question and supplemental
jurisdiction. The County Defendants’ notice of removal
2
Although Patterson endeavored to serve state court process
in October 2006, it is now undisputed that she did not serve the
Defendants in accordance with North Carolina law while the
action was pending in the state court.
5
contained a complete copy of the Complaint. Six days later, on
November 22, 2006, the City Defendants separately removed the
action to federal court, notwithstanding that it had already
been removed. 3 Although the City Defendants made no reference to
an incomplete Complaint, the copy included in their notice of
removal omitted pages 11 through 26.
On December 29, 2006, the County Defendants moved to
dismiss the Complaint based on, inter alia, insufficient process
and insufficient service of process. See Fed. R. Civ. P.
12(b)(4), (5). 4 In their motion, the County Defendants asserted
that Patterson had failed in her October 2006 attempts to serve
them with state court process. In support thereof, the County
Defendants relied on several exhibits and affidavits from Gaston
County employees.
3
On January 24, 2007, the district court consolidated the
two cases initiated by the separately filed notices of removal
into a single civil action.
4
The Federal Rules of Civil Procedure apply to this case.
See Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil
action after it is removed from a state court.”). Subsequent to
the district court proceedings, certain rules at issue in this
appeal have been amended, without any substantive effect on the
issues presented herein. Because the Supreme Court has ordered
that the amended rules should apply retroactively, “insofar as
just and practicable,” we apply the most recent version of the
rules (in effect on December 1, 2009). See Order of Mar. 26,
2009, 556 U.S. __ (U.S. Mar. 26, 2009).
6
On February 9, 2007, Patterson responded to the County
Defendants’ motion to dismiss, asserting that she was entitled,
after removal, to serve the defendants with process issued by
the district court. See 28 U.S.C. § 1448. 5 Pursuant to the 120-
day time limit for completion of such service, specified in Rule
4(m) of the Federal Rules of Civil Procedure, Patterson
maintained that she had until March 17, 2007 to perfect service.
Patterson apparently made no further effort to accomplish
service, however, until March 9, 2007, when she first obtained
summonses for the defendants from the district court. Then, on
March 15, 2007 — shortly before the 120-day period was to expire
— Patterson moved the court, pursuant to Rule 4(m), to extend
her time to complete service. 6 Meanwhile, Patterson sought to
serve the defendants with the then-recently issued district
court process. Patterson’s counsel arranged for such service of
5
In relevant part, 28 U.S.C. § 1448 (entitled “Process
after removal”) provides that, in a removed case
in which any one or more of the defendants has not
been served with process or in which the service has
not been perfected prior to removal, or in which
process served proves to be defective, such process or
service may be completed or new process issued in the
same manner as in cases originally filed in such
district court.
6
In pertinent part, Rule 4(m) provides that “if the
plaintiff shows good cause for the failure [to serve the
defendants with process], the court must extend the time for
service for an appropriate period.”
7
process by two methods: personal service by process server and
certified mail. 7
On March 30, 2007, the County Defendants responded to
Patterson’s efforts to complete service of the process issued by
the district court. More specifically, the County Defendants
filed what they designated as a “Motion to Quash Summonses of
Gaston County, Jan Winters and Alan Cloninger” (the “Motion to
Quash”). As authority for the Motion to Quash, the County
Defendants relied on Federal Rules 4(e) and 4(j), which govern
service on individuals and local governments. In their
memorandum in support of the motion, the County Defendants
advanced only two contentions, which they have since abandoned:
(1) that Patterson should not have been afforded 120 days after
removal to serve process; and (2) that Patterson’s endeavor to
serve the County Defendants in their individual capacities
failed to comply with the Federal Rules. Notably, the Motion to
7
The Federal Rules of Civil Procedure do not authorize
service of an original complaint and summons by mail. They do,
however, permit a plaintiff to effect service in accordance with
state law, see Fed. R. Civ. P. 4(e)(1), 4(j)(2)(B), and North
Carolina authorizes service by mailing the summons and complaint
through “registered or certified mail, return receipt requested,
addressed to the party to be served, and delivering to the
addressee,” N.C. Gen. Stat. § 1A-1, R. 4(j)(1)(c); see also id.
R. 4(j)(5) (service upon county or city by registered or
certified mail). As a result, service on the Defendants by mail
was permissible (and, as is now undisputed, was accomplished).
8
Quash failed to mention the contents of the Complaint — that is,
whether it was complete or incomplete.
Shortly thereafter, on April 11, 2007, another defendant in
the action filed a Rule 12 motion to dismiss for insufficient
process, contending that the Complaint with which it had been
served omitted pages 11 through 26. Although a copy of the
Complaint omitting those pages had been appended to the City
Defendants’ notice of removal, no defendant had previously
raised the missing pages contention. On May 1, 2007, yet
another defendant moved to dismiss the Complaint under Rule 12
on the same ground, i.e., that the Complaint with which it was
served was missing pages 11 through 26. Notwithstanding these
motions, the Defendants did not come forward with similar
assertions until several months later.
On May 14, 2007, Patterson responded, maintaining that she
had properly served each defendant with a complete copy of the
Complaint. In support thereof, Patterson submitted an affidavit
of the process server who had endeavored to make personal
service on the defendants, plus a separate affidavit of her
attorney. Thereafter, on May 25, 2007, the City Defendants
filed their first response to the Complaint: their answer (the
“Answer”). The Answer began by raising several barebones
affirmative defenses under the heading “First Defense.” In its
entirety, that passage states:
9
[The City Defendants], pursuant to the Federal
Rules of Civil Procedure assert the defenses as set
forth in Rule 12(b) (2)(4)(5) & (6) of the Federal
Rules of Civil Procedure and in particular, the lack
of jurisdiction over these defendants, the
insufficiency of service of process, and the lack of
personal jurisdiction over these defendants and the
failure to state a claim for relief as to these
defendants.
J.A. 225. 8 The City Defendants did not elaborate on their
service of process contentions in their Answer, nor did they
submit a supporting memorandum of law. As such, the Answer in
no way asserted that the City Defendants had been served with an
incomplete copy of the Complaint.
2.
The district court conducted a hearing on the various
pending motions on November 20, 2007. At the hearing, the
Defendants apparently focused on Patterson’s failure to file
certified mail return receipts proving that she had completed
service via that method. 9 The court gave Patterson seven days to
file the proper receipts, and she did so in a timely fashion.
On November 26, 2007, one day before Patterson filed her
certified mail return receipts, the County Defendants filed what
they styled as an “Alternative Motion to Dismiss,” in which they
8
Citations herein to “J.A. __” refer to the Joint Appendix
filed by the parties in this appeal.
9
A transcript of the district court’s hearing of November
20, 2007, is not in the record.
10
asserted for the first time that the Complaint served on them
had omitted pages 11 through 26. In other words, despite having
already challenged Patterson’s endeavor to serve them with
federal process (through their Motion to Quash of March 2007),
the County Defendants — by way of their Alternative Motion to
Dismiss — made another attack on Patterson’s service attempt.
This second attack on service was filed some eight months after
Patterson sought to serve the defendants in March 2007 (and also
eight months after the County Defendants filed their Motion to
Quash).
On December 7, 2007, Patterson responded, asserting that
the County Defendants’ extraordinary delay in raising the
missing pages contention constituted a waiver of the contention.
More specifically, Patterson maintained that the waiver arose
from the County Defendants’ failure to raise the missing pages
contention in their Motion to Quash. See Patterson v. Brown,
No. 3:06-cv-00476 (W.D.N.C. Dec. 7, 2007), ECF No. 126
(contending that, although “these Defendants had filed
extensi[ve] Motions to Dismiss [the] Complaint,” they “have
never alleged that [the] Complaint should be dismissed based
upon alleged missing pages”). Patterson filed two additional
affidavits with the district court, seeking to establish that
she had in fact served all of the defendants with complete
copies of the Complaint.
11
3.
By its decision of January 24, 2008, the district court
dismissed the County Defendants from the action. See Patterson
v. Brown, No. 3:06-cv-00476 (W.D.N.C. Jan. 24, 2008) (the “First
Memorandum Decision”). 10 As an initial matter, the court ruled
that Patterson had failed to serve the County Defendants with
state court process. Nonetheless, the court concluded that,
under applicable law, Patterson had 120 days from the removal of
the action to federal court to serve the defendants with process
issued by the district court. See id. at 13-16. Turning to
Patterson’s endeavor to serve the County Defendants with federal
process in March 2007, the district court concluded that
Patterson’s effort was fatally insufficient solely because she
had served the County Defendants with a Complaint that omitted
pages 11 through 26, in contravention of the obligation to serve
a complete copy of the complaint. See id. at 29.
The First Memorandum Decision also addressed Patterson’s
assertion that the County Defendants had waived the “missing
pages contention” by not raising it in their Motion to Quash.
The district court acknowledged that, despite having been raised
by two other defendants in April and May 2007, the missing pages
contention was first advanced by the County Defendants in
10
The First Memorandum Decision is found at J.A. 336-80.
12
November 2007. Thus, the court “agree[d] that the [County]
Defendants could have, and indeed should have, raised this issue
much earlier in the proceedings.” First Memorandum Decision 24.
Nevertheless, the court declined to deem the County Defendants’
contention untimely, primarily because Patterson had not
submitted adequate evidence in April and May to rebut the other
defendants’ assertions that they had been served with partial
copies of the Complaint. See id. at 25. Instead, the court
reasoned that Patterson had not been “prejudiced” by the County
Defendants’ delay, explaining that “while the Gaston County
Defendants may have been dilatory in joining the other
[d]efendants in raising the issue, [Patterson] has been equally
dilatory in responding to the issue.” Id. at 24-25. Thus, in
the “interest of fairness and judicial economy,” the court
resolved to “consider both the Gaston County Defendants’
untimely raised alternative argument and [Patterson’s] untimely
evidence in opposition.” Id. at 25.
On the merits of the missing pages contention, the district
court determined that Patterson had not served the County
Defendants with complete copies of the Complaint. Without
conducting an evidentiary hearing, the court concluded that the
affidavits submitted by Patterson to prove sufficient service
were “of questionable value.” First Memorandum Decision 26; see
also id. at 29 (“[T]he Court finds as fact that these Defendants
13
were not served with a copy of the Complaint that included pages
11 through 26 thereof, and that based thereon, the Court
concludes that the Plaintiff has failed to carry her burden of
showing that full and complete copies of the Complaint were
served upon these Defendants.”).
Additionally, the district court denied Patterson’s motion
for an extension of time to complete service. See First
Memorandum Decision 33-40. In so ruling, the court observed
that Fourth Circuit precedent requires a plaintiff to
demonstrate “good cause” before a court may extend the time
period for completing service. See id. at 34 (citing Mendez v.
Elliot, 45 F.3d 75, 78 (4th Cir. 1995)). Patterson could not
demonstrate good cause, according to the court, primarily
because she had “not been diligent in her attempts” at service,
even after receiving a “second bite at the apple” in the form of
an additional 120 days after removal within which to serve the
defendants. Id. at 37. The court also emphasized that
Patterson had not offered any reason for her delay or stated how
much time she would need to complete service. Id. at 37-38.
4.
On June 5, 2008 — more than four months after the district
court rendered its First Memorandum Decision and over a year
after filing their Answer — the City Defendants moved to dismiss
the Complaint (the “Motion to Dismiss”). In the Motion to
14
Dismiss, the City Defendants contended for the first time that
Patterson had failed to serve them with sufficient process
because she had served incomplete copies of the Complaint. As
discussed above, although the City Defendants listed the
barebones defense of insufficient process under Rule 12(b)(4) in
their Answer, they had never before specified their missing
pages contention. Thus, it was in the Motion to Dismiss that
the City Defendants first maintained that they were served with
an incomplete Complaint.
The Motion to Dismiss was submitted to a magistrate judge,
who recommended granting it based on the district court’s
resolution of the missing pages contention in the First
Memorandum Decision. After Patterson filed an objection to the
magistrate judge’s recommendation, the district court issued a
second memorandum decision on September 22, 2008, adopting the
magistrate judge’s report and recommendation. See Patterson v.
Brown, No. 3:06-cv-00476 (W.D.N.C. Sept. 22, 2008) (the “Second
Memorandum Decision”). 11 In short, the court concluded that
Patterson had not proven that she had served the City Defendants
with complete copies of the Complaint. See id. at 7. As a
result, the court also dismissed the Complaint as to the City
Defendants.
11
The Second Memorandum Decision is found at J.A. 408-15.
15
Thereafter, Patterson timely appealed. We possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
On appeal, Patterson primarily maintains that the district
court erred in dismissing the Defendants, based on its finding
that she had served them with incomplete copies of the
Complaint. As detailed below, we conclude that the court erred,
in that the Defendants waived their rights under the Federal
Rules to assert that they had only been served with incomplete
copies of the Complaint. See Payne ex rel. Estate of Calzada v.
Brake, 439 F.3d 198, 203 (4th Cir. 2006) (observing that we
review district court’s interpretation of applicable rules of
procedure de novo). 12 Accordingly, we reverse and remand.
A.
We begin with the district court’s dismissal of the County
Defendants. Because the County Defendants waived the then-
12
Although Patterson clearly raised the waiver issue in the
district court, she arguably abandoned it on appeal by failing
to sufficiently explain her contentions in her opening brief.
See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th
Cir. 1999) (citing Fed. R. App. P. 28(a)(9)(A)). In any event,
we are content to assess the waiver issue, as we are entitled to
exercise our discretion to overlook an abandonment if a
miscarriage of justice would otherwise result. See A Helping
Hand, LLC v. Balt. Cnty., Md., 515 F.3d 356, 369 (4th Cir.
2008).
16
available missing pages contention by not raising it in their
Motion to Quash, and because the missing pages contention was
the only service defect identified by the district court as a
basis for dismissing the County Defendants, that dismissal was
erroneous.
To recap the relevant procedural history, the County
Defendants, immediately after Patterson endeavored to serve them
with federal process in March 2007, attacked the sufficiency of
Patterson’s service of process by filing the Motion to Quash.
In so doing, the County Defendants challenged service on two
bases, neither of which implicated the completeness of the
Complaint. Then, in the Alternative Motion to Dismiss — filed
eight months after Patterson’s service attempt and the filing of
the Motion to Quash — the County Defendants first advanced the
missing pages contention.
It is beyond peradventure that the Motion to Quash
represented the County Defendants’ attempt at securing a Rule 12
dismissal of the Complaint. More specifically, it is clear that
what the County Defendants sought in their Motion to Quash was
to have Patterson’s claims dismissed due to insufficient process
— a motion expressly provided for by Rule 12(b)(4). Cf. Martin
v. Stokes, 623 F.2d 469, 474 n.8 (6th Cir. 1980) (“[T]here is no
longer a ‘motion to quash’ as defendants filed; technically, the
17
proper motion would have been a motion to dismiss for
insufficiency of service under Rule 12(b)(5) . . . .”). 13
The County Defendants’ filing of the Motion to Quash, which
was actually a Rule 12 motion to dismiss, has important
consequences. Namely, since the Federal Rules were first
adopted in 1938, they have barred a defendant from interposing
successive motions raising certain Rule 12(b) defenses —
including insufficient process under Rule 12(b)(4) — if the
defense was previously available to the defendant. More
specifically, Rule 12(g)(2) provides that
a party that makes a motion under this rule must not
make another motion under this rule raising a defense
or objection that was available to the party but
omitted from its earlier motion.
Fed. R. Civ. P. 12(g)(2). Rule 12(h) further provides that a
“party waives any defense listed in Rule 12(b)(2)-(5) by . . .
omitting it from a motion in the circumstances described in Rule
12(g)(2).” Fed. R. Civ. P. 12(h)(1)(A). Significantly, our
Judge Phillips has explained that Rule 12 prohibits a trial
court from dismissing an action on the basis of a service defect
13
In the district court, the County Defendants relied on
two authorities for the proposition that a motion to quash is an
“alternative” to a Rule 12 motion to dismiss. Each of the cited
decisions, however, specifies that the motion to quash was made
pursuant to Rule 12(b)(4). See Boateng v. Inter Am. Univ. of
P.R., 188 F.R.D. 26, 27 (D.P.R. 1999); R. Griggs Grp. Ltd. v.
Filanto Spa, 920 F. Supp. 1100, 1102 (D. Nev. 1996).
18
when that defense was omitted from the defendant’s pre-answer
motion. See Pusey v. Dallas Corp., 938 F.2d 498, 510 n.4 (4th
Cir. 1991) (“[A] party’s waiver operates not only to cut off his
right to raise the defense, but the court’s power to invoke
it.”). As such, the district court erred in dismissing the
County Defendants on a ground that they had waived — namely,
that they had been served with incomplete copies of the
Complaint.
B.
We are constrained to reach the same conclusion with
respect to the district court’s dismissal of the City
Defendants. As related above, the City Defendants filed their
Answer in May 2007 raising four Rule 12(b) defenses in name
only, without any specific development of their assertions.
And, although the missing pages contention had already been
raised by two other defendants, the City Defendants offered no
explanation in their Answer of what defect plagued Patterson’s
service attempt. What is more, the City Defendants did not even
attempt to join the missing pages contention when the County
Defendants eventually asserted it in their Alternative Motion to
Dismiss in November 2007. Instead, the City Defendants
inexplicably waited until June 2008 — over fourteen months after
the process in question was served, and over a year after the
Answer was filed — to file the Motion to Dismiss asserting that
19
the process was insufficient because the Complaint was missing
pages.
The principles applicable to our disposition of the County
Defendants’ position on appeal also foreclose the City
Defendants from attempting this two-step method of attacking the
sufficiency of process, first through a generic answer and then
by way of a Rule 12 motion. See Fed. R. Civ. P.
12(h)(1)(B)(ii); Hemispherx Biopharma, Inc. v. Johannesburg
Consol. Invs., 553 F.3d 1351, 1361 (11th Cir. 2008) (concluding
that defendant waived insufficiency of service defense by not
advancing it in answer); 5C Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1391 (3d ed. 2004)
(observing that any challenge to service of process must be made
“at the time the first significant defensive move is made —
whether it be by way of a Rule 12 motion or a responsive
pleading”).
Moreover, although the City Defendants were free to forego
a Rule 12 motion and instead challenge the sufficiency of
service in their Answer, they were required to preserve that
defense by asserting it with some specificity. See Photolab
Corp. v. Simplex Specialty Co., 806 F.2d 807, 810 (8th Cir.
1986) (recognizing that an objection to sufficiency of process
or service of process “must be specific and point out in what
manner the plaintiff has failed to satisfy the requirements of
20
the service provision utilized”); see also SEC v. Beisinger
Indus. Corp., 552 F.2d 15, 19-20 (1st Cir. 1977) (determining
that defendants waived particular service objection by only
raising unrelated service contention). Thus, even where a
defendant generally raises a service of process contention in
its answer, that contention will be deemed waived if the
defendant fails to adequately develop it in a reasonably prompt
manner. See, e.g., Datskow v. Teledyne, Inc., 899 F.2d 1298,
1303 (2d Cir. 1990) (concluding that defendant waived defective
service defense by stating it in answer, but not developing it
until motion to dismiss filed four months later).
Pursuant to these controlling principles, the City
Defendants waived their opportunity to challenge Patterson’s
service of an incomplete Complaint when they filed an Answer
that attacked the sufficiency of process in barebones fashion
only, and then waited over a year before submitting a Rule 12
motion actually spelling out the missing pages contention.
Because Rule 12(h) bars such a tactic, the district court erred
in dismissing the City Defendants from the action on the basis
of Patterson’s asserted service of an incomplete Complaint. 14
14
In these circumstances, we need not address Patterson’s
remaining two claims of error — (1) that the district court
abused its discretion in refusing to extend the time to complete
service of process, and (2) that the court erroneously barred
her from conducting limited jurisdictional discovery.
21
III.
Pursuant to the foregoing, we dismiss in part, reverse in
part, and remand for such other and further proceedings as may
be appropriate.
DISMISSED IN PART,
REVERSED IN PART, AND REMANDED
22