                                                                        [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT                           FILED
                                                                    U.S. COURT OF APPEALS
                         ------------------------------------------- ELEVENTH CIRCUIT
                                                                          JAN 15, 2008
                                      No. 07-10959
                                                                       THOMAS K. KAHN
                                Non-Argument Calendar
                                                                            CLERK
                         --------------------------------------------

                        D.C. Docket No. 05-00002-CV-HL-7

TRUMAINE LAMAR MELTON,


                                                                  Plaintiff-Appellant,

                                           versus

DAVID WILEY,
in his official and individual capacity,

                                                                  Defendant-Appellee,

DEPUTY COPE,
in his official and individual capacity, et al.,

                                                                  Defendants.

                         ----------------------------------------
                    Appeal from the United States District Court
                        for the Middle District of Georgia
                         ----------------------------------------

                                  (January 15, 2008)

Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:

       Plaintiff-Appellant Trumaine Melton appeals the dismissal without

prejudice of his section 1983 complaint, 42 U.S.C. § 1983, filed against

Defendant-Appellee Dale Wiley, a deputy sheriff employed by the Lowndes

County Sheriff Department. Melton’s suit claimed Wiley violated his

constitutional rights and named Wiley in his official and individual capacities. No

reversible error has been shown; we affirm.

       With the statute of limitations about to expire, Plaintiff filed suit against

Defendant Wiley.1 On 28 April 2005, within 120 days from the date the complaint

was filed, Plaintiff’s process server delivered the summons and complaint

intended for Defendant Wiley to Captain Temples at Defendant’s usual place of

business. The process server’s affidavit of service states that he left service with

“Captain Temples as Liaison Officer, Supervisor, Person Authorized to Accept

Service and informing said person of the contents thereof,” and had Temples “Sign

and Receipt for this process.” That Plaintiff never served Defendant Wiley

personally is undisputed.




  1
  Also named in the suit were other Lowndes County Sheriff Department employees; these other
employees were dismissed by agreement of the parties.

                                             2
      It is also undisputed that Defendant Wiley received the complaint from his

captain, filed timely his answer and participated actively in the litigation.

Defendant Wiley’s answer asserted, among other things, that the complaint was

barred by insufficiency of service of process. After participating fully in drafting a

proposed scheduling and discovery order and engaging in reciprocal discovery,

Defendant Wiley moved for summary judgment arguing that (i) Plaintiff’s claims

failed on the merits as a matter of law; and (ii) Defendant Wiley’s affidavit

established that no valid service of process had been effected. The district court

dismissed Appellant’s case without prejudice for failure to perfect timely service

of process; because the statute of limitations would bar a refiled action, the

dismissal was tantamount to a dismissal with prejudice.

      We review for abuse of discretion a district court dismissal of a complaint

without prejudice based on a failure to serve timely the defendant under

Fed.R.Civ.P. 4(m). Brown v. Nichols, 8 F.3d 770, 775 (11th Cir. 1993) (applying

the predecessor to Rule 4(m), former Fed.R.Civ.P. 4(j)). Proper service on a

defendant within the time allowed under Rule 4(m) is a plaintiff’s responsibility.

Fed.R.Civ.P.4(c)(1). Lepone-Demsey v. Carroll County Commissioners, 476

F.3d 1277, 1280-81 (11th Cir. 2007). If proper service is not effected on the

defendant

                                           3
               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 ...
               or direct that 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.

Fed.R.Civ.P. 4(m).2 Service on an individual may be effected by delivering a copy

of the summons and complaint to the individual personally or, under prescribed

conditions, by leaving copies at the individual’s usual place of abode, or by

delivering to “an agent authorized by appointment or by law to receive service of

process.” Fed.R.Civ.P.(e)(2).3 No provision is made for leaving a copy at the

individual’s usual place of business or with the individual’s employer.

       Plaintiff argues that the district court dismissal was improper because (i)

process was served on a person designated as Liaison Officer and authorized as an

agent to accept service for Defendant Wiley; and (ii) Defendant Wiley’s active

participation in the litigation constituted a waiver of the insufficiency of service

  2
   We quote Fed.R.Civ.P. 4(m) as in effect when the complaint was filed; we do not reflect stylistic
changes made effective 1 December 2007.
  3
    Fed.R.Civ.P. 4(e)(1) allows for service pursuant to the law of the state in which the district court
is located or in which service is effected. The Georgia statute, applicable here, prescribes rules for
service on an individual in much the same manner as Fed.R.Civ.P. 4(e)(2). See Ga.Code Ann. § 9-
11-4(e)(7). Plaintiff cites to Georgia open records law, Ga.Code Ann. § 50-18-72 -- which statute
protects from disclosure records revealing the home address of law enforcement officers -- to
validate the substitute service crafted by the process server he hired. We do not accept that
Georgia’s open records law excuses Plaintiff’s failure to perfect service as provided by Ga.Code
Ann. § 9-11-4(e)(7).

                                                   4
claim. The district court concluded correctly that Plaintiff failed to show Captain

Temples was the duly authorized agent to accept service on behalf of Defendant

Wiley4 and that Defendant Wiley’s inclusion in his answer of the asserted

insufficiency of service, and again in his summary judgment motion, preserved

this defense.5

       The district court recognized that it had the discretion to extend the time for

service of process even absent a showing of good cause. See Horenkamp v. Van

Winkle and Company, Inc., 402 F.3d 1129, 1132 (11th Cir. 2005). Horenkamp


  4
    Defendant Wiley submitted an affidavit that denied that he had been served. Plaintiff proffered
nothing to support the process server’s assertion that Captain Temples was authorized by Defendant
Wiley to accept service on his behalf. In his reply brief Plaintiff argues for the first time that, even
if Captain Temples could not be considered Defendant’s “agent,” service is nonetheless valid
because Captain Temples-- as a deputy sheriff -- is himself authorized to serve process. Also for the
first time in his reply brief, Plaintiff seems to argue that Defendant Wiley was served properly in his
individual capacity by service on Captain Temples because Defendant Wiley was sued also in his
official capacity. We will not consider arguments not advanced before the district court and raised
for the first time in a reply brief. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004).
   5
    Fed.R.Civ.P. 12(b)(5) allows the defendant the option of interposing an objection to defective
service either in a motion to dismiss or as a defense in the answer. Fed.R.Civ.P. 12(b) provides
further that no defense or objection is waived because it is joined with one or more other defenses
or objections in a responsive pleading or motion. And Fed.R.Civ.P. 12(h)(1) provides that the
defenses of insufficiency of process and insufficiency of service are waived if no motion is made
asserting the defense or if the defense is omitted from a responsive pleading. Under certain
circumstances, a district court may infer waiver based on later conduct of the defendant found to be
inconsistent with preservation of the jurisdictional objection. Here, however, the district court noted
that Defendant Wiley followed properly the procedures set out in Fed.R.Civ.P 12 to preserve the
defense; it concluded that no waiver was established. That the district court saw no waiver on this
record supports no abuse of discretion claim. See Proctor v. Fluor Enterprises, Inc., 494 F.3d 1337,
1350 n.9 (11th Cir. 2007) (“We review a district court’s procedural ruling on waiver of an affirmative
defense for abuse of discretion.”).

                                                   5
noted that -- without showing good cause -- an extension of Rule 4(m)’s 120-day

period may be justified “‘if the applicable statute of limitations would bar the

refiled action, or if the defendant is evading service or conceals a defect in

attempted service.’” Id. at 1132-33, quoting Fed.R.Civ.P. 4(m) Advisory

Committee Note, 1993 Amendments. And while Horenkamp observed that the

district court is under no requirement to extend the time for service if the statute of

limitations presents a bar, id. at 1133, we have said that the district court is

required to consider whether the circumstances of the case before it warrant

discretionary relief. See Lepone-Dempsey, 476 F.3d at 1282 (reversing and

remanding dismissal without prejudice for failure to serve timely so that district

court could consider whether a permissive extension was warranted).

       Here, the district court considered specifically whether it should allow

Plaintiff an extension in the light of the running of the statute of limitations;6 it

rejected that option. In the light of the (i) Plaintiff’s failure to take action -- or

even make further inquiry -- when notified of the asserted insufficiency defense

claimed in Defendant Wiley’s answer; (ii) Plaintiff’s failure to seek an extension

of time to perfect service -- even after Defendant Wiley persisted in arguing his



   6
    Plaintiff argues -- and the record evidence shows -- no attempt to evade service by Defendant
and no acts by Defendant to conceal a defect in service.

                                               6
insufficiency defense in his summary judgment motion; and (iii) the absence of

evidence that Defendant Wiley evaded service or attempted to conceal a defect in

service, the district court concluded that Plaintiff’s predicament was of his own

making. Fully appreciating that discretionary relief may be appropriate when -- as

here -- the statute of limitations bars a refiled complaint, the district court

determined that no relief was due Plaintiff.

      The abuse-of-discretion standard of review presupposes that occasions will

exist in which we affirm the district court even though we would have ruled

differently had it been our call. See United States v. Frazier, 387 F.3d 1244, 1259

(11th Cir. 2004). 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.” Id. In the light of Plaintiff’s mistaken but seemingly good faith

effort to effect service, timely notice to Defendant Wiley despite the lack of valid

service, and the prejudicial consequence of dismissal without prejudice because of

the statute of limitations, it may be -- we do not say -- that we would have allowed

Plaintiff an extension of time to prefect service had it been our discretionary call

to make. But it was not our call. The district court applied the correct legal

standard and made no clear error of judgment. We can not say the district court

abused its discretion.

                                            7
AFFIRMED.7




    7
     Plaintiff also takes issue with the district court’s award of costs to Defendant. Because
Defendant has filed no bill of costs and has represented to us that no bill of costs will be filed if
dismissal is affirmed, we do not address the costs award.

                                                 8
