                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 17 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JESSE SCOTT, Reverend,                           No. 09-15576

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01185-PMP-
                                                 GWF
  v.

KATHLEEN SEBELIUS,* Secretary of                 MEMORANDUM**
the United States Department of Health
and Human Services,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                     Philip M. Pro, District Judge, Presiding

                            Submitted May 12, 2010***
                             San Francisco, California

Before: SILVERMAN, FISHER, and M. SMITH, Circuit Judges.


       *
              Kathleen Sebelius is substituted for her predecessor, Michael O.
Leavitt, as Secretary of the Department of Health and Human Services, pursuant to
Fed. R. App. P. 43(c)(2).
       **
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff-Appellant Jesse D. Scott filed a complaint in the U.S. District Court

for the District of Nevada against the Secretary of Health and Human Services

(Secretary-HHS), seeking judicial review of an administrative decision denying

Scott coverage under his Medicare Advantage plan for medical costs he incurred

while being treated at a Nevada medical center. The District Court granted the

Secretary-HHS’s motion to dismiss for failure to effectuate proper service in

accordance with Rule 4 of the Federal Rules of Civil Procedure and for lack of

personal jurisdiction. We have jurisdiction under 28 U.S.C. § 1291. We reverse

and remand.

      We review a district court’s dismissal pursuant to Rule 4 for abuse of

discretion. See In re Sheehan, 253 F.3d 507, 511 (9th Cir. 2001). To conduct such

a review, however, we must have the ability to discern how the district court

exercised its discretion. In the present case, the District Court dismissed Scott’s

complaint in summary fashion, without providing any explanation of the bases for

its decision. As a result, we are unable to properly fulfill our judicial duty as an

appellate court. See United Nat’l Ins. Co. v. R & D Latex Corp., 141 F.3d 916,

919 (9th Cir. 1998) (“[M]eaningful appellate review for abuse of discretion is

foreclosed when the district court fails to articulate its reasoning.”).




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      We note that there may be merit to Scott’s claims. We have held that service

under Rule 4 is “a flexible rule that should be liberally construed so long as a party

receives sufficient notice of the complaint.” Direct Mail Specialists, Inc. v. Eclat

Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (internal quotation

marks omitted). We have articulated several factors that a court may consider in

deciding whether to exercise its discretion, including “a statute of limitations bar,

prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Efaw

v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (internal quotation marks

omitted); see also Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009)

(holding relief was appropriate under Rule 4(m) in light of the plaintiffs being

time-barred from re-filing their action). We are also aware that a district court’s

discretion to either grant an extension of time in which to effect service, or to

dismiss an action entirely for failure to effect service in accordance with Rule 4, is

broad. In re Sheehan, 253 F.3d at 513. Nevertheless, because the District Court

did not articulate its reasons for granting the Secretary-HHS’s motion and

dismissing Scott’s complaint, we cannot determine on this record whether its

decision constituted an abuse of discretion.

      Accordingly, we reverse the District Court’s order granting the Secretary-

HHS’s motion and dismissing Scott’s complaint. On remand, the District Court


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should reconsider its order and provide an adequate explanation of the reasons

supporting its decision. We retain jurisdiction of this appeal.

      REVERSED AND REMANDED WITH INSTRUCTIONS.




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