     06-1149-pr
     Nagy v. Dwyer


1                           UNITED STATES COURT OF APPEALS
2                               FOR THE SECOND CIRCUIT

3                                    August Term, 2007

4    (Submitted September 19, 2007                   Decided October 29, 2007)

5                                  Docket No. 06-1149-pr

6    -----------------------------------
7    PAUL NAGY,

8                          Plaintiff-Appellant,

9                             v.

10   GERALD P. DWYER, Attorney for Panel,

11                    Defendant-Appellee.
12   ------------------------------------


13   B e f o r e: MESKILL, MINER and CABRANES, Circuit Judges.


14                   This is an appeal from a judgment of the United States

15   District Court for the District of Connecticut, Kravitz, J.,

16   dismissing the complaint pursuant to Federal Rule of Civil

17   Procedure 4(m).       We vacate the judgment and remand this action to

18   the district court for further proceedings.

19                                    Paul Nagy,
20                                    for Appellant Pro Se.

21
1    Per Curiam:

2              This is an appeal from a judgment of the United States

3    District Court for the District of Connecticut, Kravitz, J.    The

4    issue presented is whether the district court must order the

5    United States Marshal Service (Marshals) to serve a summons and

6    complaint on behalf of a plaintiff proceeding in forma pauperis

7    where the plaintiff has not requested such service.   We conclude

8    that absent a request from the plaintiff, the district court need

9    not order the Marshals to serve the defendant.   Nevertheless, for

10   the reasons stated below, we vacate the judgment and remand this

11   action to the district court.

12                                   I.

13             On June 21, 2005, plaintiff-appellant Paul Nagy,

14   incarcerated and pro se, filed a complaint in the district court

15   against defendant-appellee Gerald Dwyer.1   With his complaint,

16   Nagy filed a motion to proceed in forma pauperis which the

17   district court granted on July 27, 2005.    Attached to the court’s

18   order granting the motion was a notice from the Clerk.   The

19   notice indicated that if the court ordered that the complaint be

20   served, Nagy would receive the forms necessary to request service


          1
            Nagy contends that defendant-appellee Gerald P. Dwyer is
     counsel for the Connecticut Statewide Grievance Committee in East
     Hartford, Connecticut. Nagy had previously filed a grievance
     with the Committee against one of his former attorneys. Nagy
     claims that he named Dwyer as the defendant in this suit because
     he was directed by the Committee to address all matters related
     to his grievance to Dwyer.

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1    by the Marshals.

2                Nagy also filed with his complaint a motion for the

3    appointment of a “Special Investigator” and a motion for an

4    “Expedited Ruling.”    On October 14, 2005, in an order denying

5    these latter two motions, the district court noted that it had

6    been unable to determine from the record whether the defendant

7    had been served.    The district court warned that absent proof of

8    service of the summons and complaint, the court could dismiss the

9    action 120 days after the filing of the complaint pursuant to

10   Federal Rule of Civil Procedure 4(m).2    The district court then

11   ordered Nagy to file proof of service on or before November 1,

12   2005 and “cautioned that a failure to comply with this order will

13   result in dismissal of his . . . suit.”    Nagy asserts on appeal

14   that he never received this order nor the requisite forms to

15   request service by the Marshals.    The record on appeal is

16   incomplete and does not divulge whether the order or forms were

17   sent to Nagy.


          2
              Rule 4(m) provides, in pertinent part:

          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 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).

                                      -3-
1              On January 30, 2006, after Nagy failed to file proof of

2    service, the district court dismissed the action sua sponte.        The

3    order of dismissal did not indicate whether the action was

4    dismissed with or without prejudice.     On February 8, 2006, the

5    Clerk entered judgment, and on March 6, 2006, Nagy filed a timely

6    notice of appeal.

7                                      II.

8              We review for abuse of discretion a district court’s

9    dismissal of an action for failure to timely serve the defendant.

10   Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002).     The

11   district court necessarily abuses its discretion when its

12   decision rests on an error of law.      See Zervos v. Verizon New

13   York, 252 F.3d 163, 168-69 (2d Cir. 2001) (noting that an “error

14   of law” constitutes an “abuse of discretion”).

15             Nagy argues that the district court erred in dismissing

16   this action because plaintiffs proceeding in forma pauperis are

17   “automatically” entitled to service of the summons and complaint

18   by the Marshals.

19             We disagree.   Federal Rule of Civil Procedure 4

20   provides in pertinent part that “[a]t the request of the

21   plaintiff . . . the court may direct that service be effected by

22   a United States marshal . . . .    Such an appointment must be made

23   when the plaintiff is authorized to proceed in forma pauperis.”

24   Fed. R. Civ. P. 4(c)(2).   Absent a request from the plaintiff,


                                       -4-
1    nothing in the text of Rule 4 requires the district court to

2    appoint the Marshals to effect service after granting pauperis

3    status to the plaintiff.

4                Moreover, the interests of judicial economy counsel

5    against the district court automatically ordering service by the

6    Marshals.    In civil actions involving prisoners, such as this

7    case, automatic service would undermine much of the benefit

8    derived from the district court’s statutory obligation to review

9    and dismiss with prejudice frivolous complaints “as soon as

10   practicable after docketing.”    28 U.S.C. § 1915A(a)-(b)(1); see

11   Abbas v. Dixon, 480 F.3d 636, 639-40 (2d Cir. 2007) (discussing

12   section 1915A review).    Further, automatic service by the

13   Marshals would prove impractical where a plaintiff fails to

14   provide sufficient information to identify or locate a defendant.

15   See Moore v. Jackson, 123 F.3d 1082, 1085-86 (8th Cir. 1997)

16   (identifying the necessity of plaintiffs’ providing sufficient

17   information to the Marshals).

18               It is true that we have recognized that “[a] party

19   allowed to proceed in forma pauperis is entitled to service by

20   the U.S. Marshal.”    Romandette v. Weetabix Co., 807 F.2d 309, 310

21   n.1 (2d Cir. 1986) (construing an earlier version of Rule 4 which

22   required plaintiff proceeding in forma pauperis to request

23   service by the Marshals).    An entitlement to service by the

24   Marshals, however, does not require automatic service.    Indeed,


                                      -5-
1    while we concluded in Romandette that a failure by the Marshals

2    to properly serve a defendant constituted good cause to extend

3    the period of time in which service was due, in so holding we

4    relied on the specific circumstances of that case, namely, that

5    the plaintiff, incarcerated and pro se, “indicated to the court

6    his reliance on service by the Marshals and . . . timely

7    requested that the Marshals effect personal service.”    Id. at

8    311.

9              In light of these considerations, we conclude that the

10   district court may require plaintiffs proceeding in forma

11   pauperis to affirmatively request that the court appoint the

12   Marshals to serve the summons and complaint on the defendant.

13   Accordingly, where, as here, the plaintiff made no such request,

14   it is not error for the district court to wait to order the

15   Marshals to serve the defendant until such a request has been

16   made.

17             Nevertheless, Rule 4(m) requires that the district

18   court provide notice to a plaintiff before dismissing an action

19   sua sponte for failure to timely serve the defendant.    Fed. R.

20   Civ. P. 4(m).   We previously have concluded that a failure to

21   provide notice pursuant to Rule 4(m) can constitute an abuse of

22   discretion or error of law where the absence of notice

23   forestalled a plaintiff from making a colorable argument that

24   there was good cause to extend the 120-day period in which


                                     -6-
1    service was due.   See Thompson, 309 F.3d at 110 (vacating

2    dismissal pursuant to Rule 4(m) where the plaintiff allegedly

3    received neither the requisite forms to request service by the

4    Marshals nor notice of impending dismissal by the district

5    court).

6              In the instant case, had Nagy received notice, which he

7    contends he did not, he could have argued to the district court

8    that there was good cause to extend the 120-day period in light

9    of his assertion that he did not receive the necessary forms to

10   request service by the Marshals.      See id.   Because we do not know

11   whether, in fact, Nagy received notice and whether the district

12   court properly provided notice pursuant to Rule 4(m), we cannot

13   determine whether the district court’s dismissal was proper.

14   Therefore, in an abundance of caution, we vacate the district

15   court’s judgment and remand this action to permit the district

16   court to make such findings as may be necessary to determine

17   whether there is good cause to grant an extension of time in

18   which to serve the defendant.   While we leave it to the district

19   court to make that determination in the first instance, we note

20   that questions material to this inquiry might include whether

21   Nagy received notice in accordance with Rule 4(m) and whether he

22   received the necessary forms to request service by the Marshals.

23   We further note that if the district court dismisses the

24   complaint anew after concluding that there is not good cause to


                                     -7-
1   grant an extension of time, such a dismissal should be without

2   prejudice.   See Fed. R. Civ. P. 4(m).

3                                  III.

4             For the foregoing reasons, the judgment of the district

5   court dismissing the plaintiff’s complaint is hereby vacated and

6   the action is remanded with instructions to conduct further

7   proceedings consistent with this opinion.




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