                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 08-10556
                                                             JULY 16, 2008
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________                CLERK

                   D. C. Docket No. 07-00542-CV-5-IPJ

LOUIS FRANCIES,
CHUNG FRANCIES,


                                                  Plaintiffs-Appellants,

                                  versus

JOHN BRANDON,

                                                   Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                              (July 16, 2008)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      In this diversity jurisdiction breach of contract and fraud suit, plaintiffs

Louis and Chung Francies appeal from the district court’s dismissal with prejudice

of their complaint on the ground that they failed to serve the defendant, John

Brandon.

      On March 27, 2007 the Francies, both Alabama citizens, filed suit in federal

court seeking to enforce the terms of a promissory note, which they allege required

Brandon, a Tennessee citizen, to repay a $125,000 loan. On June 1, 2007 the

Francies’ attorney unexpectedly quit representing them, and Brandon was not

served within 120 days, as required by Federal Rule of Civil Procedure 4(m). As a

result of the failure to serve Brandon, on August 27, 2007 the district court

dismissed the suit without prejudice.

      The Francies obtained new counsel, who filed motions to reinstate and for

substitution of counsel on August 31, 2007. On September 4, 2007 the district

court granted those motions, but on the next day it denied the Francies’ additional

motion for service by marshal. When service still had not been made on Brandon

by November 29, 2007 the district court again dismissed the case without

prejudice.

      In response to the dismissal, the Francies’ new attorney prepared to refile the

lawsuit as a separate action, but instead was directed by the district court’s docket



                                           2
clerk to file a second motion to reinstate the original action. She did so, and on

December 12, 2007 the district court entered an order reinstating the action and

allowing the Francies two weeks to serve the defendant. The deadline for service

would be December 26, 2007. The Francies’ counsel contacted the district court

for help in obtaining an alias summons for Brandon, and the court issued the

summons on December 18. It was delivered to the Francies’ counsel by mail the

next day, December 19, and counsel took the service package to UPS that same

day for overnight shipment to the Hamilton County, Tennessee Sheriff’s Office.

The service package arrived there the following day, but counsel later learned that

the sheriff’s office did not serve Brandon until January 10, 2008.

      Meanwhile, on January 4, 2008 when service had not been made by the

December 26, 2007 deadline, the district court dismissed the case with prejudice

for failure to prosecute. On that same day counsel filed a motion for

reconsideration, seeking either reinstatement or dismissal without prejudice. After

counsel had received the dismissal order, she had contacted the sheriff’s office to

determine the status of service and the date of receipt of the service package, and

was informed that the service package had been logged in up there on December

26, 2007. As a result, in the motion for reconsideration, counsel stated that the

package had been delivered to the sheriff’s office on December 26, 2007. The



                                           3
district court denied the Francies’ motion for reconsideration on January 7, 2008.

      After the motion was denied, counsel contacted UPS whose delivery records

indicated that the package had been delivered to the sheriff’s office on December

20. Counsel then contacted the sheriff’s office to try to determine the reason for

the discrepancy between its login records and the UPS delivery records. Counsel

learned that the delay was likely due to the internal delivery and login processes of

the sheriff’s office, as well as the holiday schedule it had been operating under at

the time. The sheriff’s office relied on an internal carrier to pick up packages from

the central delivery location and take them to its civil processing department, and

because of the office’s holiday schedule that person may not have picked up the

package until December 21. In addition, the civil processing department closed

early on Friday, December 21, 2007, remained closed through the Christmas

holiday on Tuesday, December 25, and did not reopen until Wednesday, December

26—the district court’s deadline for service on Brandon.

      On January 31, 2008 the Francies filed their notice of appeal from the

district court’s judgment dismissing their case with prejudice, as well as the court’s

denial of their motion for reconsideration. On February 19, they filed a motion to

supplement the record on appeal to include affidavits describing the circumstances

surrounding the failure to meet the December 26 deadline for service. The district



                                           4
court granted their request to supplement the record.

       On appeal, the Francies contend that the district court abused its discretion

by dismissing the case with prejudice on the grounds that: (1) the proper remedy

for failure to serve a defendant is dismissal without prejudice; and (2) the district

court failed to make, and on this record could not make, the findings required for a

dismissal with prejudice—that they had engaged in deliberate delay or willful

contempt and that lesser sanctions would be ineffective.

       We review a district court’s dismissal of a plaintiff’s complaint with

prejudice under Fed. R. Civ. P. 41 for failure to prosecute only for an abuse of

discretion. See Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337

(11th Cir. 2005). “Under Rule 41(b) of the Federal Rules of Civil Procedure a case

may be dismissed with prejudice for failure to prosecute. Although the rule is

phrased in terms of dismissal on the motion of the defendant, it is clear that the

power is inherent in the court and may be exercised sua sponte whenever necessary

to ‘achieve the orderly and expeditious disposition of cases.’” Lopez v. Aransas

County Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978)1 (citation omitted).

       We later clarified that “a dismissal with prejudice, whether on motion or sua



       1
          In our en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.

                                               5
sponte, is an extreme sanction that may be properly imposed only when: ‘(1) a

party engages in a clear pattern of delay or willful contempt (contumacious

conduct); and (2) the district court specifically finds that lesser sanctions would not

suffice.’” Betty K Agencies, 432 F.3d at 1337–38 (citations omitted). “[T]he

harsh sanction of dismissal with prejudice is thought to be more appropriate in a

case where a party, as distinct from counsel, is culpable.” Id. at 1338.

      In Betty K Agencies, this Court reversed the district court’s dismissal with

prejudice of the plaintiff’s complaint because the court “merely recited the bare

fact” that the plaintiff had not yet served one of the defendants without making any

finding that the plaintiff’s failure to serve the defendant “showed willful contempt

for court rules” and that “lesser sanctions would be inadequate to correct any

defect in service.” Id. at 1340–41. The evidence the district court relied on in that

case actually revealed that the plaintiff had an innocent explanation for the failure.

Id. at 1340. In addition, Fed. R. Civ. P. 4(m) expressly provides for a lesser

sanction—dismissal without prejudice—than the one the district court imposed.

Id. at 1341.

      In this case in its order dismissing the Francies’ suit with prejudice, the

district court reiterated that the case had already been dismissed twice without

prejudice due to the Francies’ failure to obtain service, and that the court had given



                                           6
them an additional two weeks to serve Brandon. Because the Francies had again

failed to serve Brandon, the court dismissed the case with prejudice “due to the

plaintiffs’ ongoing failure to prosecute.” While we are mindful of the district

court’s need to control its docket, as in Betty K Agencies the district court here

failed to find that the plaintiffs had engaged in “a clear pattern of delay or willful

contempt,” see id. at 1340. Accordingly, as in Betty K Agencies, in the absence of

such a finding we conclude that the district court abused its discretion by

dismissing the Francies’ action with prejudice.2 See id. at 1338, 1340–41.

       VACATED and REMANDED.




       2
          We note that, because Brandon was served six days after the district court entered its
order dismissing the case with prejudice and the Francies presented evidence explaining the
delay in service, it is not clear that the record would support a finding of intentional delay or
willful contempt. That is, however, an issue we leave for the district court to decide in the first
instance.

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