           Case: 16-10337    Date Filed: 11/15/2016   Page: 1 of 3


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10337
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cv-24744-FAM



JOEL ROMERO,

                                                          Plaintiff-Appellant,

                                  versus

COMMISSIONER OF SOCIAL SECURITY,

                                                        Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (November 15, 2016)

Before WILLIAM PRYOR, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Joel Romero appeals the denial of his motion to reconsider the dismissal of

his complaint against the Commissioner of Social Security. The district court

dismissed Romero’s complaint for failure to serve process, see Fed. R. Civ. P.

4(m), and denied his joint motion to reopen and notice of proof of service after the

60-day period expired to appeal an adverse decision by the Commissioner.

Because the dismissal, although made without prejudice, see id., had the effect of

barring Romero from refiling his complaint, we vacate the denial of Romero’s

motion to reconsider and remand for the district court to reopen Romero’s case.

      We review the denial of a motion for reconsideration for abuse of discretion.

McKelvey v. AT & T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986). “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.”

Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009)

(internal quotation marks and citation omitted).

      The district court abused its discretion when it denied Romero’s motion to

reconsider. Romero moved for reconsideration on the ground that the denial of his

motion to reopen, which occurred after the deadline expired to challenge the

Commissioner’s decision, was “tantamount to a dismissal [of his complaint] with

prejudice.” See Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981). And Romero

attached to his motion to reopen copies of mail receipts that established he had


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completed timely service of process on the Commissioner. Although Romero

delayed filing proof of his service of process, that did “not affect the validity of

service.” See Fed. R. Civ. P 4(l). “[T]he severe sanction of dismissal—with

prejudice or the equivalent thereof—should be imposed only in the face of a clear

record of delay or contumacious conduct.” McKelvey, 789 F.2d at 1520 (internal

quotation marks and citations omitted). Because the denial of Romero’s motion to

reconsider operated to bar him from refiling his complaint, we vacate the order

denying his motion to reconsider and remand for the district court to reopen

Romero’s case.

      VACATED AND REMANDED.




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