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    The Tenth Circuit Court of Appeals reversed the district court's dismissal of Gary Self's pro se complaint against Fresenius Medical Care and SOS Staffing Services for failure to prosecute. The appellate court found that the district court erred by dismissing the complaint without first giving Self an opportunity to show good cause for failing to timely serve the defendants, as required by Rule 4(m) of the Federal Rules of Civil Procedure. The case was remanded back to the district court to allow Self to demonstrate good cause for the failure to effect service.

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    Filed: Patrick Fisher

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    The Tenth Circuit Court of Appeals reversed the district court's dismissal of Gary Self's pro se complaint against Fresenius Medical Care and SOS Staffing Services for failure to prosecute. The appellate court found that the district court erred by dismissing the complaint without first giving Self an opportunity to show good cause for failing to timely serve the defendants, as required by Rule 4(m) of the Federal Rules of Civil Procedure. The case was remanded back to the district court to allow Self to demonstrate good cause for the failure to effect service.

    Original Description:

    Filed: 2003-06-17 Precedential Status: Non-Precedential Docket: 03-6042

    Original Title

    Self v. Fresenius Med. Care, 10th Cir. (2003)

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    The Tenth Circuit Court of Appeals reversed the district court's dismissal of Gary Self's pro se complaint against Fresenius Medical Care and SOS Staffing Services for failure to prosecute. The appellate court found that the district court erred by dismissing the complaint without first giving Self an opportunity to show good cause for failing to timely serve the defendants, as required by Rule 4(m) of the Federal Rules of Civil Procedure. The case was remanded back to the district court to allow Self to demonstrate good cause for the failure to effect service.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    21 views4 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    The Tenth Circuit Court of Appeals reversed the district court's dismissal of Gary Self's pro se complaint against Fresenius Medical Care and SOS Staffing Services for failure to prosecute. The appellate court found that the district court erred by dismissing the complaint without first giving Self an opportunity to show good cause for failing to timely serve the defendants, as required by Rule 4(m) of the Federal Rules of Civil Procedure. The case was remanded back to the district court to allow Self to demonstrate good cause for the failure to effect service.

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    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUN 17 2003

    PATRICK FISHER
    Clerk

    GARY B. SELF,
    Plaintiff - Appellant,
    v.
    FRESENIUS MEDICAL CARE, a
    corporation; SOS STAFFING
    SERVICES, a corporation,

    No. 03-6042
    (D. Ct. No. 02-CV-1143-W)
    (W.D. Okla.)

    Defendant - Appellee.
    ORDER AND JUDGMENT*
    Before TACHA, Chief Judge, MCKAY, Circuit Judge, and BRORBY, Senior Circuit
    Judge.
    After examining the briefs and the appellate record, this three-judge panel has
    determined unanimously that oral argument would not be of material assistance in the
    determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
    case is therefore ordered submitted without oral argument.

    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. This court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    *

    I. Background
    On August 19, 2002, Plaintiff-Appellant, Gary B. Self, filed a pro se complaint
    against Defendants-Appellees, Fresenius Medical Care and SOS Staffing Services Inc.,
    alleging discrimination under the Americans with Disabilities Act, 42 U.S.C. 12101 et
    seq. In October 2002, the district court, after noticing that summonses had not been
    issued, sent Self the necessary forms. The district court advised Self to complete and
    return the praecipe for summons, two summonses, and two USM-285 forms. Self never
    completed the paperwork.
    On January 10, 2003, the district court dismissed Selfs complaint without
    prejudice for failure to prosecute. Prior to its dismissal, the district court did not issue an
    order to show cause. This appeal followed.
    II. Discussion
    We review the district courts dismissal for failure to prosecute for an abuse of
    discretion. Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000). With respect to the time
    limit for the service of a summons, the Federal Rules of Civil Procedure provide:
    Time Limit for Service. 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. This subdivision does not apply to service in a
    foreign country pursuant to subdivision (f) or (j)(1).
    FED. R. CIV. P. 4(m). In Espinoza v. United States, we considered the procedure for
    -2-

    dismissing a complaint under Rule 4(m):


    [D]istrict courts should proceed under [Rule 4(m)] in the following manner:
    The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff
    has shown good cause for the failure to timely effect service. In this regard,
    district courts should continue to follow the cases in this circuit that have
    guided that inquiry. If good cause is shown, the plaintiff is entitled to a
    mandatory extension of time. If the plaintiff fails to show good cause, the
    district court must still consider whether a permissive extension of time may
    be warranted. At that point the district court may in its discretion either
    dismiss the case without prejudice or extend the time for service.
    52 F.3d 838, 841 (10th Cir. 1995).
    In this case, there is no indication in the docket sheet that the district court
    afforded Self an opportunity to show good cause for his failure to comply with Rule 4(m).
    Thus, the district court could not have engaged in [t]he preliminary inquiry to be made
    under Rule 4(m), which is whether the plaintiff has shown good cause for the failure to
    timely effect service. Id. at 841. Thus, the district court erred under Espinoza.1
    III. Conclusion
    Based on the foregoing, we REVERSE the district courts dismissal for failure to
    prosecute, REMAND for further proceedings consistent with this order and judgment,

    We express no opinion on whether Self would have been able to show good
    cause. We leave this to the district court on remand.
    1

    -3-

    and GRANT petitioners motion to proceed in forma pauperis on appeal pursuant to 28


    U.S.C. 1915.
    ENTERED FOR THE COURT,

    Deanell Reece Tacha


    Chief Circuit Judge

    -4-

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