                                IN THE UNITED STATES COURT OF APPEALS

                                                  FOR THE FIFTH CIRCUIT



                                                             No. 00-50696
                                                          (Summary Calendar)



VALERIE SMART,
                                                                                                                       Plaintiff-Appellant,

                                                                     versus

APPLIED MATERIALS, INC.,

                                                                                                                    Defendant-Appellee.



                                        Appeal from the United States District Court
                                         for the Western District of Texas, Austin
                                                    A-00-CV-159-JN

                                                                July 3, 2001

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

           Plaintiff Valerie Smart (“Smart”) appeals from the district court’s dismissal without prejudice

of her Title VII complaint for failure to effect service in accordance with Fed. R. Civ. P. 4(m). For

the following reasons, we reverse and remand.

                                  FACTUAL AND PROCEDURAL BACKGROUND

           On August 7, 1998, Smart filed a Title VII discrimination claim based on race, sex, and



     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
disability against Applied Materials, Inc. (“Applied”) with the Austin Human Rights Commission and

the Equal Employment Opportunity Commission (“EEOC”). The EEOC sent Smart a letter

informing her that it was dismissing her suit for lack of sufficient evidence and advising her that she

could pursue a lawsuit against Applied in federal court.

          Smart filed a pro se lawsuit1 against Applied in the district court after the court denied her

request to proceed in forma pauperis. After she filed the lawsuit, the district court also denied her

request for appointment of counsel.

          Smart failed to serve Applied with process within 120 days of filing her complaint, in

accordance wit h Fed. R. Civ. P. 4(m). The district court notified Smart that if she did not effect

service within ten days or show cause for her failure to effect service, her complaint would be

dismissed without prejudice. The court ordered Smart to show cause within ten days why her

complaint should not be dismissed. Smart responded to the district court’s order by writing the court

a letter indicating that she lacked knowledge regarding legal matters and other resources. She also

stated that she was suffering from various injuries, is a single parent, had doctor’s appointments, had

been denied certain benefits, and was behind on her bills.

          The district court found that Smart had failed to effect service on Applied within ten days and

that the reasons stated in the letter for the failure did not constitute good cause. The court dismissed

her complaint without prejudice for failure to comply with the court’s order, failure to comply with

the Federal Rules of Civil Procedure, and failure to prosecute. Smart now appeals the district court’s

ruling.




   1
       Smart is represented by counsel in this appeal.

                                                    2
                                       DISCUSSION

          Smart argues that the district court incorrectly applied the good cause standard of Fed. R. Civ.

P. 4(m)2 in her case. She asserts that the court failed to make an excusable neglect inquiry and

summarily dismissed her complaint without considering the circumstances surrounding her failure to

effect service on Applied.

          Smart also claims that her failure to effect service within 120 days was due to misinformation

that she received from the district court clerk’s office. Furthermore, she asserts that her failure to

effect service on Applied within ten days of the district court’s order was due to the ambiguity of the

order and to misinformation that she received from the district court’s clerk regarding the

requirements of the order. She claims that she did not attempt to effect service on the defendant

because it was unclear from the district court’s order whether she was required to attempt to effect

service, show cause for her failure to do so, or do both. Moreover, she argues that the district court’s

clerk informed her that the order only meant that she had to write a letter explaining to the court her

failure to effect service. Smart also emphasizes her pro se status in arguing that the district court

erred in dismissing her complaint and avers that the district court should have given her more latitude

in assessing whether her claims should be dismissed.

          We review a district court’s dismissal of a complaint for failure to effect timely service of



   2
       Rule 4(m) provides:

          If 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 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.

                                                     3
process for abuse of discretion. Lindsey v. United States R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir.

1996). When a plaintiff has failed to effect service within the t me required under Fed. R. Civ. P.
                                                                i

4(m), the district court may, on its own initiative and in its discretion, direct that service be effected

within a specified period of time. FED. R. CIV. P. 4(m); Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.

1996). The court may also choose to dismiss the complaint without prejudice. FED. R. CIV. P. 4(m);

Thompson 91 F.3d at 21. However, “[i]f good cause is present, the district court must extend time

for service. If good cause does not exist, the court may, in its discretion, decide whether to dismiss

the case without prejudice or extend time for service.” Thompson 91 F.3d at 21.

        We find that Smart has demonstrated that the district court abused its discretion in dismissing

her complaint without prejudice.3 We agree with Smart that the court’s order is ambiguous from the

perspective of a pro se litigant. The order stated the following:

        In accordance with FED. R. CIV. P. 4(M), the Court now notifies Plaintiff that if
        service is not effected within ten (10) days of the date of this Order, unless good
        cause is shown for the failure to effect service, this cause of action shall be dismissed
        without prejudice.

        IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff
        SHOW CAUSE within ten days (10) of the date of this Order, why this cause of
        action should not be dismissed in accordance with FED. R. CIV. P. 4(M).

        IT IS FURTHER ORDERED that failure to respond to this Order may result in the
        dismissal of this cause of action pursuant to FED. R. CIV. P. 41(B) for failure to
        prosecute and for failure to comply with a Court Order.

One possible reading of the district court’s order is that the court gave Smart the option of either

effecting service within ten days or showing cause for her failure to do so. Another other possible


   3
    We note that Smart did not present her allegation that the district court’s clerk misinformed her
regarding the requirement that she serve Applied within 120 days of filing her complaint. Thus, we
will not consider this argument in her appeal. Furthermore, it is unnecessary to consider t his
argument given our disposition of her appeal.

                                                    4
interpretation of the above quoted language is that the district court ordered Smart to effect service

on Applied and to show cause why her complaint should not be dismissed for having previously failed

to effect service within the 120-day period required by Fed. R. Civ. P. 4(m). The only other possible

reading of the court’s order was that Smart was merely ordered to show cause for failing to effect

service on Applied. This last interpretation, Smart asserts, is the one that she followed. Smart’s

interpretation is not untenable given that the only instruction following the portion of the order

stating, “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED” was for Smart to show

cause why her complaint should not be dismissed.

        If the intent of the district court was to give Smart an option, had she understood the order

as indicating such, she may have chosen to effect service on Applied instead of attempting to show

cause for failing to do so. Similarly, if the intent of the court was to order Smart to effect service as

well as show cause, then she may have done both. In short, had the show cause order been clear,

Smart may have chosen to effect service on Applied instead of or in addition to showing cause why

her complaint should not be dismissed.

        Compounding the ambiguity of the show cause order is the district court’s order dismissing

Smart ’s complaint. That order states that “Plaintiff has failed to effect service and failed t show
                                                                                              o

good cause for doing so as of the date of this Order. Therefore, the court finds this cause should be

dismissed without prejudice.” Again, the court’s language could be interpreted as dismissing Smart’s

complaint because she failed to effect service or to show good cause or because she failed to effect

service and show good cause.

        Accordingly, we find that the court abused its discretion in dismissing Smart ’s complaint

because its show cause order did not clearly indicate, given that the plaintiff was a pro se litigant, the


                                                    5
steps that Smart was required to take in order to prevent the dismissal of her complaint. Thus, we

reverse and remand this case. On remand, the district court should give Smart another opportunity

to effect service on Applied within ten days or whatever time period it deems appropriate.

                                         CONCLUSION

       Because we find that the district court’s show cause order is ambiguous, we REVERSE the

district court’s order dismissing Smart’s complaint and REMAND this case for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.




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