FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 SEPTEMBER 28, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-11026

Non-Argument Calendar

________________________

D. C. Docket No. 08-21639-CV-DMM

KELVIN RANCE,

Plaintiff-Appellant,

versus

ROCKSOLID GRANIT USA, INC.,

as owner of the fictitious

name Granite Transformations,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 28, 2009)

Before BIRCH, WILSON and FAY, Circuit Judges.

WILSON, Circuit Judge:
Kelvin Rance appeals the district court’s dismissal without prejudice of his

complaint for failure to timely serve Rocksolid Granit USA, Inc. (“Rocksolid”)

pursuant to Federal Rule of Civil Procedure 4(m). Relying on decisions from other

circuits, Rance argues that the complaint should not have been dismissed for

failure to serve the defendant because the district court clerk and the U.S. Marshal

failed to prepare the summons and complaint and serve Rocksolid, as expressly

directed by the district court and required by law. Rance also argues that he did

not respond to the district court’s show cause order because (1) he was confined in

the hospital with complete kidney failure during the period in which the district

court requested a response, and (2) he did not receive notice of the show cause

order until after he was discharged from the hospital.

I.

On June 26, 2007, Rance filed a complaint against Rocksolid, alleging that

they fired him in violation of the Americans with Disabilities Act, 42 U.S.C. §

12112, and the Fair Labor Standards Act, 29 U.S.C. § 206. On July 28, 2008, the

district court granted Rance’s “Amended Application to Proceed Without Payment

of Fees and Affidavit,” in which it specified the following: “[t]he Clerk of Court is

instructed to prepare the summons and copies of the complaint and same shall be

served by the U.S. Marshal. The U.S. Marshal shall file a return of service once

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service is completed.” On December 12, 2008, one-hundred and eighty-six days

after Rance filed his complaint, the district court sua sponte issued an “Order to

Show Cause,” ordering Rance to show cause why his case should not be dismissed

for failure to make service. On January 5, 2009, the district court dismissed

Rance’s case without prejudice. After the district court denied his motion for

reconsideration, Rance timely appealed.

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II.

We have not yet articulated the proper standard of review for a sua sponte

dismissal pursuant to Federal Rule of Civil Procedure 4(m). “However, we review

for abuse of discretion a court’s dismissal without prejudice of a plaintiff’s

complaint for failure to timely serve a defendant under Rule 4(m).”

Lepone-Dempsey v. Carroll County Comm’rs, 476 F.3d 1277, 1280 (11th Cir.

2007) (citing Brown v. Nichols, 8 F.3d 770, 775 (11th Cir. 1993) (applying the

abuse of discretion standard of review to a dismissal pursuant to the predecessor to

Rule 4(m), former Federal Rule of Civil Procedure 4(j))). “We also review for

abuse of discretion a court’s decision to grant an extension of time under Rule

 On January 14, 2009, after the district court dismissed his case, Rance filed “Plaintiff’s 1

Motion to Reconsider the Case Closure and Motion to Reopen Closed Case,” in which he

requested reconsideration based on medical illnesses. He did not mention that fact that the

district court had ordered the United States Marshal to make service. Two days later, the district

court denied that motion. Thereafter, Rance filed a notice, advising the district court that it had

ordered the United States Marshal to serve the defendants. The district court did not issue

another order, and Rance’s notice of appeal followed. 

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4(m).” Id. (citing Horenkamp v. Van Winkle And Co., 402 F.3d 1129, 1132-33

(11th Cir. 2005)). Accordingly, an abuse of discretion is the proper standard of

review here as well. The abuse of discretion review requires us to “affirm unless

we find that the district court has made a clear error of judgment, or has applied the

wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.

2004) (en banc) (collecting cases discussing the abuse of discretion standard).

Rule 4(m) provides that,

[i]f a defendant is not served within 120 days after the

complaint is filed, the court – on motion or on its own

after notice to the plaintiff – must dismiss the action

without prejudice against that defendant or order that

service be made within a specified time. But if the

plaintiff shows good cause for the failure, the court must

extend the time for service for an appropriate period.

FED. R. CIV. P. 4(m). Good cause exists “when some outside factor, such as

reliance on faulty advice, rather than inadvertence or negligence, prevented

service.” Lepone-Dempsey, 476 F.3d at 1281 (citation and alteration omitted).

Even if a district court finds that a plaintiff failed to show good cause, “the district

court must still consider whether any other circumstances warrant an extension of

time based on the facts of the case.” Lepone-Dempsey, 476 F.3d at 1282. “Only

after considering whether any such factors exist may the district court exercise its

discretion and either dismiss the case without prejudice or direct that service be

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effected within a specified time.” Id. Nonetheless, “Rule 4(m) grants discretion to

the district court to extend the time for service of process even in the absence of a

showing of good cause.” Horenkamp, 402 F.3d at 1132.

Section 1915, entitled “Proceedings in forma pauperis,” instructs that “[t]he

officers of the court shall issue and serve all process, and perform all duties in such

cases.” 28 U.S.C. § 1915(d) (emphasis added). Federal Rule of Civil Procedure

4(c), likewise, requires that “[t]he court must so order [service to be made by a

United States Marshal or deputy marshal] if the plaintiff is authorized to proceed in

forma pauperis under 28 U.S.C. § 1915. . . .” FED. R. CIV. P. 4(c)(3). “Together,

Rule 4(c)(2) and 28 U.S.C. § 1915(c) stand for the proposition that when a plaintiff

is proceeding in forma pauperis the court is obligated to issue plaintiff’s process to

a United States Marshal who must in turn effectuate service upon the defendants,

thereby relieving a plaintiff of the burden to serve process once reasonable steps

have been taken to identify for the court the defendants named in the complaint.”

Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). See also Graham v. Satkoski, 51

F.3d 710, 712 (7th Cir. 1995) (“The Marshals Service is required to serve process

on behalf of individuals proceeding in forma pauperis.”).

III.

Our sister circuits have held that a plaintiff has shown “good cause” for

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purposes of a dismissal pursuant to Rule 4(m) when a United States Marshal has

failed to properly serve process through no fault of the plaintiff. See Romandette v.

Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986) (finding “good cause” and holding

that the district court erred in dismissing a pro se inmate’s case proceeding in

forma pauperis for failure to effect service “because the U.S. Marshal had yet to

effect personal process through no fault of the litigant”); Rochon v. Dawson, 828

F.2d 1107, 1110 (5th Cir. 1987) (holding “that a plaintiff proceeding in forma

pauperis is entitled to rely upon service by the U.S. Marshals and should not be

penalized for failure of the Marshal’s Service to properly effect service of process,

where such failure is through no fault of the litigant”); Puett v. Blandford, 912 F.2d

270, 275 (9th Cir. 1990) (holding “that an incarcerated pro se plaintiff proceeding

in forma pauperis is entitled to rely on the U.S. Marshal for service of the

summons and complaint, and, having provided the necessary information to help

effectuate service, plaintiff should not be penalized by having his or her action

dismissed for failure to effect service where the U.S. Marshal or the court clerk has

failed to perform the duties required of each of them under 28 U.S.C. § 1915(c)

and Rule 4 of the Federal Rules of Civil Procedure”); Sellers v. United States, 902

F.2d 598, 602 (7th Cir. 1990) (providing that “[t]he [United States] Marshal’s

failure to accomplish the task [of effectuating service on behalf of a prisoner6
plaintiff where the district court instructed the Marshal to do so] is automatically

‘good cause’ within the meaning of Rule 4(j)”); Dumaguin v. Sec’y of Health and

Human Servs., 28 F.3d 1218, 1221 (D.C. Cir. 1994) (providing that “good cause

existed under Federal Rule of Civil Procedure 4(j) to excuse [the plaintiff’s] failure

to personally serve the United States Attorney” where the plaintiff was proceeding

in forma pauperis and the plaintiff repeatedly asked the United States Marshal to

serve the United States), cert. denied, 516 U.S. 827 (1995); Byrd, 94 F.3d at 220

(providing that “the utter failure of the clerk and the Marshals Service to

accomplish their respective duties to issue and serve process for plaintiff

proceeding in forma pauperis constitutes a showing of good cause under [Federal

Rule of Civil Procedure] 4”); Moore v. Jackson, 123 F.3d 1082, 1085-86 (8th Cir.

1997) (per curiam) (reversing the district court’s dismissal for failure to make

timely service because “[w]aiver of service is the responsibility of the United

States Marshal in these settings”). We have not yet addressed the application of

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Rule 4(m) in this unique factual context.

However in Fowler v. Jones, we addressed “the role of the clerk of the court

 While Romandette, Rochon, Puett, Sellers, and Moore involved prisoner-plaintiffs, 2

Dumaguin and Byrd did not. See also Olsen v. Mapes, 333 F.3d 1199, 1204-05 (10th Cir. 2003). 

Moreover, the circuit courts in the former cases did not substantially rely on the incarcerated

status of the plaintiffs in support of their holdings; rather, they emphasized the respective

plaintiffs’ pro se status proceeding in forma pauperis as well as Federal Rule of Civil Procedure

4(c)(3) and § 1915. 

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and the U.S. Marshal Service in serving complaints of parties proceeding in forma

pauperis” against the backdrop of a district court’s denial of a motion for a

continuance. 899 F.2d 1088, 1094 (11th Cir. 1990). There, the district court

allowed Fowler, an incarcerated pro se plaintiff, to proceed in forma pauperis in

his 42 U.S.C. § 1983 action. Fowler named four defendants. At trial, when the

district court indicated that there was only one defendant, Fowler objected.

Defense counsel explained that only one defendant had been served. Fowler

requested a continuance in order to serve the other defendants, but the district court

denied the request. Fowler appealed.

We reversed, finding that the district court abused its discretion in denying

the continuance. Id. at 1096. In reviewing the denial of a requested continuance,

we considered four factors, the last of which is relevant here: “the extent to which

[Fowler] might have suffered harm as a result of the denial.” Id. at 1094 (citation

omitted). Relying on Puett, Romandette, and Rochon, we held that “in forma

pauperis litigants should be entitled to rely on the court officers and United States

Marshals to effect proper service, and should not be penalized for failure to effect

service where such failure is not due to fault on the litigant’s part.” Id. at 1095.

We went on to distinguish Rochon and concluded that the district court abused its

discretion in denying Fowler’s request for a continuance.

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We agree with the well-reasoned decisions of our sister circuits. Relying on

Fowler, we hold that the failure of the United States Marshal to effectuate service

on behalf of an in forma pauperis plaintiff through no fault of that plaintiff

constitutes “good cause” for the plaintiff’s failure to effect timely service within

the meaning of Rule 4(m). Here, the district court allowed Rance to proceed in

forma pauperis and, in accordance with § 1915, it specifically instructed the United

States Marshal to make service. Our precedent allowed Rance to rely on the

Marshal to make service. See id. For reasons unknown to us, the United States

Marshal did not do so. Nothing in the record indicates that Rance shares in the

Marshal’s fault for failure to effectuate service.

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Therefore, the district court abused its discretion by dismissing Rance’s

complaint without prejudice under Federal Rule of Civil Procedure 4(m) because

the district court had directed the United States Marshal to serve the complaint, and

the United States Marshal failed to do so through no fault of Rance.

 In Rochon, the Fifth Circuit ultimately found that the district court properly dismissed 3

the plaintiff’s claim. 828 F.2d at 1110. The Court reasoned that “[w]hile Rochon and other

incarcerated plaintiffs proceeding in forma pauperis may rely on service by the U.S. Marshals, a

plaintiff may not remain silent and do nothing to effectuate such service. At a minimum, a

plaintiff should request service upon the appropriate defendant and attempt to remedy any

apparent service defects of which a plaintiff has knowledge.” Id. This request requirement,

however, is now moot insofar as it was based on a prior version of Rule 4 that “indicated that

such a request was necessary.” Olsen, 333 F.3d at 1204 n.4. The current version of Rule 4

imposes no such requirement. Further, there is no evidence in the record to demonstrate that

Rance knew that the United States Marshal had failed to make service prior to dismissal.

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IV.

Upon review of the record on appeal, and after consideration of Rance’s

appellate brief, we vacate and remand for further proceedings.

VACATED AND REMANDED.

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