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A court’s patience will only take you so far in the wild world of federal appeals. When a plaintiff fails to perfect proper service or respond to a motion to dismiss, that patience will eventually wear thin.
Such was the case last week, when the Fifth Circuit Court of Appeals ruled that a district court had not abused its discretion in dismissing a complaint after the plaintiff squandered multiple opportunities to perfect service of process. The good news for lawyers? If a pro se plaintiff keeps trying the court's patience, the case will eventually be dismissed.
Brandon Thrasher, acting pro se, filed a civil rights lawsuit against Officer Justin Castillo, the City of Amarillo, and other defendants on February 8, 2010, alleging that Castillo had wrongfully arrested him two years earlier. On June 10, 2010 -- two days after the expiration of the 120-day time period to serve process under Federal Rule of Civil Procedure 4(m) -- the district court ordered Thrasher to show cause by June 21, 2010, as to why his case should not be dismissed for failure to serve process.
Three days before the deadline, on June 18, 2010, Thrasher filed a motion requesting an extension of time to perfect service. Thrasher twice attempted to personally serve process upon the City and Castillo, but his failure to provide a copy of the complaint and his personal service of process violated Rule 4(c). The district court granted Thrasher another extension, which he also missed.
Eight days after the extended deadline had passed, the defendants filed a motion to dismiss Thrasher's complaint or, in the alternative, a motion for a more definite statement.
Counsel appeared on Thrasher's behalf in October, but didn't respond to the motion for almost six months and did not perfect service on the City until November 29, 2010 and on Castillo until December 13, 2010. (That was over five months after Thrasher's motion to extend the time for obtaining service.) In January 2011, the district court dismissed Thrasher's suit because he failed to show good cause for the delay.
Thrasher argued that he had good cause for delay because he was suffering from mental illness and initially proceeded in forma pauperis. He also claimed that he failed to perfect service because he was pro se and did not understand that he, as a litigant, could not himself serve process on the defendants. The Fifth Circuit was unpersuaded, noting that a litigant's pro se status neither excuses his failure to effect service nor excuses him for lack of knowledge of the Rules of Civil Procedure.
(The appellate court also highlighted that Thrasher had been represented by counsel for over a month before service was perfected, yet offered no explanation for the delay during that time.)
Because the district court's warning of dismissal and patience in granting extensions didn't convince Thrasher to effect service properly, the appellate court concluded that the district court didn't abuse its discretion in dismissing the case.