201 F.3d 948 (7th Cir. 2000)
O'ROURKE BROS. INC., an Iowa corporation,  and JEFF O'ROURKE,    Plaintiffs-Appellants,v.NESBITT BURNS, INC., a Canadian corporation,  ANDREAS F. KIEDROWSKI, and JOHN C. DUNN,    Defendants-Appellees.
No. 99-2401
In the  United States Court of Appeals  For the Seventh Circuit
Argued December 3, 1999Decided January 19, 2000

Appeal from the United States District Court  for the Central District of Illinois.  No. 97-4136--Joe Billy McDade, Chief Judge.
Before FLAUM, ROVNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge.


1
This case alleging  violations of the Illinois securities laws is  brought under our diversity jurisdiction. 28  U.S.C. sec. 1332(a)(2). O'Rourke Bros. Inc. is an  Iowa corporation operating out of Moline,  Illinois, and Jeff O'Rourke is a citizen of Iowa;  the defendants--Nesbitt Burns, Inc., Andreas F.  Kiedrowski, and John C. Dunn-- are Canadian  citizens. When the O'Rourkes failed to obtain  service, the case was dismissed with prejudice  for failure to prosecute, rather than without  prejudice pursuant to Rule 4(m) of the Federal  Rules of Civil Procedure.1 Therein lies the  issue, which was not raised in the district court  until the filing of a motion to reconsider the  denial of a Rule 60 motion for relief from the  judgment, a judgment which, by the way, was  entered 7 months earlier and 233 days after the  complaint was filed. Let's just say that the  O'Rourkes' side did not seem to be paying much  attention to this case, and that inattention  severely limits the scope of review we can offer  to this appeal.


2
The O'Rourkes filed the complaint on December  30, 1997, and mailed a summons to the president  of Nesbitt Burns, Inc. at its offices in Toronto,  Ontario, Canada, along with a request for a  waiver of service pursuant to Rule 4(d). Counsel  for the defendants, who was from the same city as  plaintiffs' counsel--Rock Island, Illinois--  responded by letter, pointing out that in his  view the complaint did not state a claim under  the Illinois securities regulation at issue; the  letter also confirmed an agreed extension of time  to respond to the request for waiver of service.  Counsel said:


3
You also indicated that we could have an  extension of time in which to respond to the  Request for Waiver of Service of Summons. After  you have had a chance to review the information  provided [regarding whether a valid cause of  action was alleged], please let me know if you  are still interested in pursuing this case. If  you are, then we will in all probability return  the Request for Waiver of Service of Summons and  proceed with the appropriate motion or answer.


4
The O'Rourkes' counsel never responded to this  letter, nor did he have a summons issued and  served.


5
On May 7, 1998, 128 days after the complaint  was filed, a magistrate judge set the case for a  "lack of prosecution/status hearing" to be held  on June 3. At the hearing, O'Rourke's counsel  said he would obtain a summons, but he did not do  so. Forty days later, on July 13, 1998 (195 days  after the complaint was filed), the magistrate  judge ordered plaintiffs to show cause in writing  in 7 days why their case should not be dismissed.  Again, no response.


6
On July 31, 1998, the magistrate issued a  report and recommendation that the case be  dismissed for lack of prosecution. The parties  were given 10 days to object. No objections were  filed. On August 21, 1998, 233 days after the  complaint was filed, the district judge entered  an order dismissing the case with prejudice. On  August 24 aseparate judgment was entered and  mailed to the parties.


7
The O'Rourkes' counsel made no effort to have  the dismissal transformed into one without  prejudice, which could have been attempted, of  course, with a motion to alter or amend the  judgment, pursuant to Rule 59. Nor did the  O'Rourkes appeal. In fact, they did nothing at  all until March 16, 1999, when they filed a  motion under Rule 60 claiming excusable neglect  for being "remiss in failing to serve summons  within 120 days, as required by Rule 4(m) . . .  ." The delay in filing the Rule 60 motion was, as  they put it, "[e]ither because they had not  received a copy of the court's Order of August  21, 1998, or because they had not carefully  reviewed that Order, plaintiffs' counsel were not  aware of the dismissal 'with prejudice' until  they received and reviewed a copy of it in late  February 1999." The district court found it  "somewhat curious, as it would seem that either  they had a copy of the Order in their files (or  recalled having seen it at some point) or they  did not." Not surprisingly, on April 28, 1999,  the motion was denied. The O'Rourkes filed a  motion for reconsideration on May 12, this time  stating that under Rule 4(m), service on a  foreign defendant is not subject to the 120-day  service requirement. For the first time, they  argued that the judgment is void pursuant to Rule  60(b)(4). This motion, too, was denied. Today we  consider their timely notice of appeal from this  order.


8
Finding a way to obtain meaningful review is  one of the problems the O'Rourkes face. When we  look at the procedural history of the case, what  becomes clear is that the neglect the case  received after the dismissal was, if anything,  worse than it received before. That neglect  dictates the very narrow scope of our review. By  the time of argument on this appeal, the only  issue was that relief should have been granted  pursuant to Rule 60(b)(4), which provides for  relief from a judgment if "the judgment is void."  Such relief is available at any time. New York  Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir.  1996). Any argument that the judgment was merely  in error is abandoned; any argument excusing the  failure to take action earlier is discarded. It  is conceded that unless the judgment is void,  there is no basis for relief at this late date.


9
The O'Rourkes argue that, because the defendants  were foreign citizens, there was no time limit on  service under Rule 4(m) because the time limits  do not apply to service in a foreign country, and  that dismissal, if it were to occur, had to be a  dismissal without prejudice under Rule 4(m) and  not a dismissal with prejudice for failure to  prosecute under Rule 41(b). In addition, they  argue that a court is simply without power to  dismiss with prejudice under Rule 41(b) for a  failure to prosecute when the underlying problem  is a failure to serve the summons.


10
Rule 41 is devoted to dismissal of actions.  Rule 41(b) provides for involuntary dismissal for  a failure to prosecute an action or to comply  with court orders. In case of such failure, the  rule says:


11
For failure of the plaintiff to prosecute or to  comply with these rules or any order of court, a  defendant may move for dismissal of an action or  of any claim against the defendant. Unless the  court in its order for dismissal otherwise  specifies, a dismissal under this subdivision and  any dismissal not provided for in this rule,  other than a dismissal for lack of jurisdiction,  for improper venue, or for failure to join a  party under Rule 19, operates as an adjudication  upon the merits.


12
Rule 4(m) requires service within 120 days of  filing of the complaint. It provides that if  service is not made within 120 days,


13
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 courtshall extend the time for service for an appropriate  period.


14
It also provides that the rule does "not apply to  service in a foreign country pursuant to  subdivision (f) or (j)(1)." Unless prohibited by  the laws of the country in question, Rule  4(f)(2)(C)(ii) allows for service upon an  individual in a foreign country (and subsection  (h) allows that provision in subsection (f) to be  applied to corporations) by "any form of mail  requiring a signed receipt, to be addressed and  dispatched by the clerk of the court to the party  to be served . . . ." Rule 4(d)(2) provides  foreign defendants the ability to waive service  but exempts them from costs for a failure to  execute the waiver.


15
The only issue, then, which occupies our  attention is whether a Rule 41(b) dismissal with  prejudice in this circumstance is a void  judgment. If it is void, then it can be set aside  even at this late date. If not, as the O'Rourkes'  counsel stated at argument, it does not matter  whether it was right or wrong.


16
A void judgment is not synonymous with an  erroneous judgment. Even gross errors do not  render a judgment void. Matter of Whitney-Forbes,  Inc., 770 F.2d 692 (7th Cir. 1985). A judgment is  void only if the court which rendered it lacked  jurisdiction of the subject matter or of the  parties, or if it acted in a manner inconsistent  with due process of law. 11 Wright, Miller &  Kane, Federal Practice and Procedure: Civil 2d  sec. 2862 (1995); see Combs v. Nick Garin  Trucking, 825 F.2d 437 (D.C. Cir. 1987); Pacurar  v. Hernly, 611 F.2d 179 (7th Cir. 1979). A  judgment is void if the rendering court was  without power to enter it; that is, if the court  entered a decree "not within the powers granted  to it by the law." United States ex rel. Wilson  v. Walker, 109 U.S. 258 (1983). For instance, in  United States v. Indoor Cultivation Equipment  from High Tech Indoor Garden Supply, 55 F.3d 1311  (7th Cir. 1995), a judgment was void because the  claim for forfeiture of property was not filed  within the statutory time period during which the  government was authorized to act. In Combs, a  default judgment against defendants who had not  been properly served was a void judgment. In  Pacurar a dismissal with prejudice for lack of  subject matter jurisdiction was set aside because  Rule 41(b) specifically states that dismissals  for lack of jurisdiction are not adjudications on  the merits.


17
As part of the argument that the judgment  against them is void, the O'Rourkes present their  view of what sanction might be an appropriate  one: a dismissal without prejudice under Rule  4(m). Their argument does not hold together. They  say that because they were attempting service in  a foreign country, they are not subject to the  120-day time period in which to effect service,  even though, in a previous motion, they  apologized for not meeting the time limit. They  then turn around and argue that the only way to  dismiss their case is pursuant to Rule 4(m). But  if they are, in fact, attempting service in a  foreign country, Rule 4(m), on its face, does not  apply to them. It is hard to see how the rule can  apply when it suits them and not when it doesn't.


18
Here the facts show that the request for a  waiver of service was mailed to the defendants in  Canada. We doubt--though we do not decide--that  these efforts qualify for the exception in Rule  4(m), which refers to service under subsection  (f). The latter subsection applies only to  methods of service upon a defendant "from whom a  waiver has not been obtained and filed . . . ."  There is no indication here that any efforts at  service, other than the request for a waiver,  were made. In fact, the O'Rourkes never responded  to the defendants' letter stating they would in  all probability waive service upon notice that  the O'Rourkes intended to proceed with the case.


19
But for purposes of argument, what if what  happened here were service in a foreign country  and, therefore, the situation were to fall  outside the scope of Rule4(m)? One answer is, as  the court found in Lucas v. Natoli, 936 F.2d 432  (9th Cir. 1991), that there is no latitude for  interpretation and there is apparently no time  limit for service. If the Lucas court is also  implying that there can be no sanction for  failure to serve a defendant in a foreign  country, that is an implication which we find  suspect. It may well be that the provision for  dismissal without prejudice under Rule 4(m) does  not apply when service is attempted in a foreign  country, but it does not follow that a court is  left helpless when it wants to move a case along.


20
Rather, in such a situation we could revert to  procedures commonly used prior to the enactment  of Rule 4(m) or its predecessor Rule 4(j). Before  the enactment of Rule 4(j) with its then-new  provision for dismissal without prejudice if  service were not made in 120 days, if a  "plaintiff delayed service, a defendant could  move for dismissal for failure to prosecute under  Fed. R. Civ. P. 41(b) . . . ." Gordon v. Hunt,  116 F.R.D. 313 (S.D.N.Y. 1987), a decision of  which the Second Circuit said, "For the reasons  stated in Judge Lasker's well-reasoned opinion  [citation omitted], we affirm." Gordon v. Hunt,  835 F.2d 452 (2d Cir. 1987), cert. denied, 486  U.S. 1008 (1988). Because the current rule, Rule  4(m), is silent as to sanctions for not serving  foreign defendants, perhaps Rule 41(b), far from  being an erroneous basis for a dismissal, is  precisely the proper one. We do not, however, decide that issue.


21
We will move on to the essence of the appeal--  that whatever else may be true, a dismissal under  Rule 41(b) is void. This is the one consistent  argument the O'Rourkes make. For one thing, they  say such a dismissal can only result from a  motion of a defendant and that a court does not  have authority to act sua sponte. But, to the  contrary, it is clear that a court has inherent  authority to dismiss a case sua sponte for a  failure to prosecute. Link v. Wabash R.R., 370  U.S. 626 (1962); GCIU Employer Retirement Fund v.  Chicago Tribune, 8 F.3d 1195 (7th Cir. 1993).  Similarly, ordinarily a dismissal for a failure  to prosecute is ordered in situations in which a  defendant has been served and appeared in a case  and, in fact, has been put to some trouble to  defend the case. But while it is ordinarily the  case, it is not always necessary to show that a  defendant was prejudiced by the failure to  prosecute in order to obtain relief. Washington  v. Walker, 734 F.2d 1237 (7th Cir. 1984);  Costello v. United States, 365 U.S. 265, 286  (1961) ("All of the dismissals enumerated in Rule  41(b) which operate as adjudications on the  merits . . . primarily involve situations in  which the defendant must incur the inconvenience  of preparing to meet the merits . . . ." Emphasis  added.)


22
The short answer to the precise question we  face-- whether a dismissal with prejudice for  failure to prosecute when the defendant has not  been served is an order beyond the court's power-  -is no. Even when Rule 4(m) clearly applies,  dismissal for failure to prosecute is sometimes  ordered. While such dismissals may be frowned on,  even reversed, they are not found to be beyond  the power of the court. For instance, in  Hernandez v. City of El Monte, 138 F.3d 393 (9th  Cir. 1998), the district court dismissed a case  for failure to prosecute even though the  complaint was served within 120 days and just one  day after the court issued a warning at an order  to show cause hearing that it should be served.  The court of appeals reversed, saying that a  dismissal for failure to prosecute, rather than  a less drastic sanction in that situation, was an  abuse of discretion. See also Enlace Mercantil  Internacional, Inc. v. Senior Indus., 848 F.2d  315 (1st Cir. 1988). In Catz v. Chalker, 142 F.3d  279 (6th Cir. 1998), the court upheld a dismissal  with prejudice of an action in which the  defendants were never served. A dissent, however,  argues that a dismissal with prejudice was an  abuse of discretion and that the dismissal should  have been ordered under Rule 4(m). Again, no  concern is voiced over the court's power to  dismisswith prejudice, only over whether such a  dismissal is an abuse of discretion.2 A similar  approach can be seen in Bann v. Ingram Micro,  Inc., 108 F.3d 625, 627 (5th Cir. 1997), in which  the dismissal with prejudice was ordered under  Rule 16(f) for a failure to show cause for not  obtaining service. The court said it would be an  abuse of discretion to enter such a dismissal  "unless the court first finds that a lesser  sanction would not have served the interests of  justice." (Emphasis added.)


23
More important to our conclusions in this  matter is what we ourselves have previously  stated. In certain circumstances, a plaintiff's  dereliction in not obtaining service may lead  beyond Rule 4 and head off into territory covered  by Rule 41(b). We said, "If the delay [in  obtaining service] has been so long that it  signifies failure to prosecute--or if the delay  entails disobedience to an order of the court--  then dismissal may be with prejudice under Rule  41(b), which covers 'failure of the plaintiff to  prosecute or to comply with these rules or any  order of court.'" Powell v. Starwalt, 866 F.2d  964, 966 (7th Cir. 1989). Similarly, Wright &  Miller indicate that so long as a dismissal is  simply for a failure to comply with the 120-day  period, dismissal without prejudice is the  appropriate action. But when a court has "been  indulgent and has allowed the plaintiff time  beyond the 120 days, a dismissal with prejudice  would not be unfair to the plaintiff." Once an  extension of time has been granted, "the reasons  for favoring a Rule 4(j) dismissal over a Rule  41(b) dismissal with prejudice no longer are  valid." 4A Federal Practice and Procedure: Civil  2d sec. 1137, p. 393.


24
Once a plaintiff has gone beyond a failure to  serve and has also failed to adhere to the orders  of the court, the situation may transform itself  from a simple failure to obtain service to a  failure to prosecute the action. Rule 41(b)  specifically grants a court authority to dismiss  with prejudice. It is a drastic remedy, which  should never be lightly imposed, but that is not  to say that to impose such an order is beyond the  authority of the court.


25
That a 41(b) dismissal is not beyond the power  of the court is all we are deciding. We want to  make absolutely clear what we are not doing. We  are not deciding what should or can be done in  the event of dilatoriness in serving defendants  in a foreign country. We are not saying we would  have affirmed the dismissal in this case on  direct appeal or on appeal from a Rule 59 motion.  In short, we are not deciding anything about  whether we think that what was done in this case  was error, clear error, an abuse of discretion,  wise or unwise. What we are saying, and all we  are saying, is that a court does not lack the  power to dismiss in a case like this pursuant to  Rule 41(b), and a judgment in that regard is not  void. For that reason, and that reason only, the  judgment of the district court is affirmed.



Notes:


1
 All references to rules--and they are numerous--  are to the Federal Rules of Civil Procedure.


2
 We are aware that it is possible that no mention  was made regarding the court's authority because  no one raised or considered the issue;  nevertheless, the authority and jurisdiction of  a court are fundamental, and a failure to  question those matters is significant.


