FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 18, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-11469

Non-Argument Calendar

________________________

D. C. Docket No. 05-01223-CV-CC-1

DAVID G. TURNER, 

Plaintiff-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(October 18, 2006)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

David Turner, proceeding pro se, appeals the district court’s dismissal of his
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complaint, with prejudice, for failure to comply with a court order. For the reasons

that follow, we vacate and remand. 

I. Background

On May, 9, 2005, Turner filed a pro se complaint against the IRS

challenging its failure to grant him a collection-due-process hearing before

imposing a levy against his property. Turner served a copy of the complaint on the

United States Attorney General by registered mail, but failed to include a

summons. In an answer filed on July 6, 2005, the Government raised the

affirmative defense of “insufficiency of process” for failure to serve a summons as

required by Federal Rules of Civil Procedure 4(c)(1) and 4(i)(1). On August 31,

2005, more than 120 days after filing his complaint, Turner sent copies of

unsigned, undated summonses to the district court, the Attorney General, the

United States Attorney for the Northern District of Georgia, and an IRS employee. 

He also submitted copies of postal return receipts as proof that all interested parties

had received his complaint. 

On November 4, 2005, the district court found that, in violation of Local

Rule 16.2, neither Turner nor the Government had filed preliminary reports and

discovery plans within 30 days after the Government filed its answer. 

Consequently district court ordered the parties to file the required statements on or
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before November 18, 2005, or show cause why the case should not be dismissed

for failure to comply with the local rule. The Government complied with the

district court’s order, but Turner did not. On November 23, 2005, the district court

dismissed the case with prejudice under Federal Rule of Civil Procedure 41(b)

citing Turner’s failure to comply with the court’s order. Alleging that he never

received the show-cause order, Turner moved to alter or amend the judgment of

dismissal and asked for an additional 20 days in which to comply. The district

court denied Turner’s motion, finding dismissal was still warranted on the alternate

ground that Turner failed to effect service of process pursuant to Rules 4(c)(1) and

4(i)(1). Turner now appeals. 

II. Discussion

Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss

actions with prejudice if the plaintiff fails to comply with any court order, local

rule, or Federal Rule of Civil Procedure. Fed. R. Civ. P. 41(b). We review such

orders for abuse of discretion. Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993) 

(citing Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)). “Discretion

means the district court has a range of choice, and that its decision will not be

disturbed as long as it stays within that range and is not influenced by any mistake

of law.” Betty K. Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir.
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2005) (internal quotations omitted).

Because dismissal with prejudice is a “drastic” remedy, a district court “may

only implement it, as a last resort, when: (1) a party engages in a clear pattern of

delay or willful contempt (contumacious conduct); and (2) the district court

specifically finds that lesser sanctions would not suffice.” World Thrust Films,

Inc. v. Int’l Family Entm’t, 41 F.3d 1454, 1456 (11th Cir. 1995); see also, Kilgo,

983 F.2d at 192 (citing a line of Eleventh Circuit cases articulating this standard). 

“[F]indings satisfying both prongs of our standard are essential before dismissal

with prejudice is appropriate.” Id. at 1339 (citing Mingo v. Sugar Cane Growers

Co-op. of Florida, 864 F.2d 101, 102-03 (11th Cir. 1989)) (emphasis added). Mere

delay or simple negligence will not suffice; dismissal with prejudice “must, at a

minimum, be based on evidence of willful delay.” Kilgo, 983 F.2d at 192-93

(citations and internal quotation marks omitted). And, “[a]lthough we occasionally

have found implicit in an order the conclusion that lesser sanctions would not

suffice, we have never suggested that the district court need not make that finding.” 

World Thrust Films, 41 F.3d at 1456 (citations omitted). “This court has only

inferred such a finding ‘where lesser sanctions would have greatly prejudiced’

defendants.’” Id. at 1456 (quoting Kilgo, 983 F.2d at 193 (citations omitted)).

In this case, the district court dismissed Turner’s complaint with prejudice
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on the grounds that he failed to comply with local rules and with a court order. 

The district court subsequently denied Turner’s motion to alter that judgment

because it found dismissal was also proper on the alternate ground of insufficient

service of process. We conclude that neither ground justifies dismissal with

prejudice.

A. Improper Service of Process

The district court denied Turner’s motion to alter the judgment of dismissal 

with prejudice because it found dismissal was still justified by Turner’s failure to

properly serve the Government as required by Federal Rules of Civil Procedure

4(c)(1) and 4(i)(1). We review a district court’s denial of a motion to alter or

amend the judgment for abuse of discretion. Drago v. Jenne, 453 F.3d 1301, 1305

(2006) (citing Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir. 1998)). 

“[T]he plaintiff is responsible for service of a summons and complaint

within the time allowed under subdivision (m).” Fed. R. Civ. P. 4(c)(1). Under

Rule 4(m), 

[i]f 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
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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.

Fed. R. Civ. P. 4(m) (emphasis added). 

Here, although Turner properly served the complaint on the Attorney

General by certified mail, he did not include a summons, thereby failing to effect

service pursuant to Rule 4. Turner argues that his defective service did not warrant

dismissal with prejudice because: (1) he substantially complied with the service

requirements; (2) his pro se status should have entitled him to a certain degree of

leniency regarding service of process; (3) the Government suffered no prejudice

from the defects in service; and (4) he never knowingly or willfully ignored any of

the district court’s orders. We find that under the circumstances of this case,

Turner’s failure to effect proper service did not justify the “draconian remedy of a

dismissal with prejudice.” Betty K. Agencies, 432 F.3d at 1339. 

It bears repeating that “dismissal with prejudice is a drastic sanction that

may be imposed only upon finding a clear pattern of delay or willful contempt and

that lesser sanctions would not suffice.” Id. at 1340 (citations omitted) (emphasis

added). “We rigidly require the district courts to make these findings precisely

because the sanction of dismissal with prejudice is so unsparing, and we strive to
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afford a litigant his or her day in court, if possible.” Id. (citations omitted). 

In this case, the district court failed to find that Turner’s defective service

was willful or contumacious. Moreover, the court failed to find that lesser

sanctions were inadequate to correct the defects in service. Indeed, Rule 4(m)

explicitly prescribes a lesser sanction for failure to complete service by requiring

the district court to “dismiss the action without prejudice” or “direct that service be

effected.” Fed. R. Civ. P. 4(m). And although “we occasionally have found

implicit in an order the conclusion that lesser sanctions would not suffice, . . .

“[t]his court has only inferred such a finding ‘where lesser sanctions would have

greatly prejudiced’ defendants.’” World Thrust Films, 41 F.3d at 1456 (quoting

Kilgo, 983 F.2d at 193 (citations omitted)). Yet nothing in the record indicates that

a lesser sanction would have “greatly prejudiced” the Government. 

Accordingly, the district court abused its discretion by denying Turner’s

motion to alter the judgment of dismissal with prejudice.

B. Failure to Comply with a Court Order or Local Rule

Even if the district court abused its discretion by finding that dismissal with

prejudice was proper because service was defective, the Government contends that

the district court’s denial of Turner’s motion to alter the judgment was proper

because dismissal was warranted for Turner’s failure to comply with local rules
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and the district court’s show-cause order. 

Local Rule 16.1 requires litigants to file discovery plans and preliminary

reports with the district court within 30 days after the defendant has filed an

answer. N.D. Ga. R. 16.1. Federal Rule of Civil Procedure 41(b) allows a district

court to dismiss actions with prejudice if the plaintiff fails to comply with, inter

alia, any court order or local rule. Fed. R. Civ. P. 41(b); Kilgo, 983 F.2d at 192. 

And Local Rule 41.3 states that the district court may dismiss a civil action with

prejudice if a plaintiff: (1)“willfully fails to make” or refuses to cause a case to be

made ready for placement on the trial calendar; or (2) after notice, “fail[s] or

refuse[s] to obey a lawful order of the court in the case.” N.D. Ga. R. 41.3A(1)-

(2); see also N.D. Ga. R. 41.3B.

Here, the district court failed to make any findings that Turner’s failure to

comply with the court’s show-cause order “clearly demonstrates” a pattern of

delay or willful contempt. While the Government points to Turner’s conduct in the

underlying tax action, it offers nothing to show a pattern of willful contempt before

the district court, and we cannot infer such from the record. Nor did the district

court make any finding that lesser sanctions would not suffice. Again, we have

“only inferred such a finding ‘where lesser sanctions would have greatly

prejudiced’ defendants.’” World Thrust Films, 41 F.3d at 1456 (citations omitted).
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 And because we cannot envision how the Government would have been greatly

prejudiced by a lesser sanction, we refuse to infer such a finding. Hence, the

government’s argument that the district court’s show-cause order implicitly

demonstrated its willingness to consider lesser sanctions is inapposite. 

Accordingly, the district court ignored the unambiguous standard governing

dismissals with prejudice, thereby abusing its discretion.

III. Conclusion

For the reasons above, we VACATE and REMAND for further proceedings

consistent with this opinion.