Title Welch v. Folsom
Date 1991
By Alito
Subject Misc
Contents
Page 1
233 of 238 DOCUMENTS
JAMES I. WELCH, Appellant, v. JAMES FOLSOM, Appellee
No. 90-3226
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
925 F.2d 666; 1991 U.S. App. LEXIS 1696; 18 Fed. R. Serv. 3d (Callaghan) 989
November 14, 1990, Submitted
February 8, 1991, Filed
PRIOR HISTORY: **1 On Appeal from the United States District Court for the District of Delaware; D.C. Civil No. 89-00179.
DISPOSITION:
Vacated and Remanded.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant inmate chal- lenged the United States District Court for the District of Delaware order, denying his Fed. R. Civ. P. 59(e) mo- tion to reconsider its judgment, dismissing his in forma pauperis complaint for fraud against appellee individual for failure to effect service of process. He alleged that the trial court erred because an officer of the court should have been directed to serve process under 28 U.S.C.S. §
1915(c).
OVERVIEW: Appellant inmate filed an in forma pau- peris action against appellee individual for fraud. The trial court dismissed the complaint with prejudice for failure to effect service and he sought review, asserting that under
28 U.S.C.S. § 1915(c), an officer of the court should have been directed to serve process. The court reversed, rul- ing that the dismissal of the in forma pauperis complaint with prejudice was a final, appealable order, which it had jurisdiction to review. It concluded that appellant timely filed his notice of appeal. The Fed. R. Civ. P. 59(e) motion for reconsideration, filed with the district court within 10 days after the entry of the order of dismissal, tolled the Fed. R. App. P. 4(a)(4) time limitation for filing the no- tice of appeal. Appellant's failure to serve the Rule 59(e) motion, as the rule required, was not fatal because under Fed. R. Civ. P. 5(a), ex parte motions were not required to be served. Because 28 U.S.C.S. § 1915(c) mandated that the officers of the court should issue and serve all process for an in forma pauperis case, and this was not done, the trial court erred in dismissing the complaint for failing to
effect service.
OUTCOME: The court vacated the order dismissing ap- pellant inmate's complaint for fraud against appellee indi- vidual for failing to effect service of process. Appellant's notice of appeal was timely filed because his timely filed motion for reconsideration tolled the limitations period for filing the notice of appeal and did not require service on appellee. Court officers should have been directed to issue and serve process in the in forma pauperis case.
LexisNexis(R) Headnotes
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN1 Under 28 U.S.C.S. § 1291, only final orders are appealable. A final order is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN2 If the plaintiff cannot cure the defect that led to dismissal or elects to stand on the dismissed complaint, the order of dismissal is final and appealable.
Civil Procedure > Pleading & Practice > Service of
Process
HN3 When leave to proceed in forma pauperis is granted, 28 U.S.C.S. § 1915(c) directs the officers of the court to issue and serve all process.
Civil Procedure > Relief From Judgment > Motions to
Alter & Amend
Civil Procedure > Appeals > Reviewability > Time
Limitations
HN4 Fed. R. App. P. 4(a)(1) provides that a notice of appeal in a civil proceeding must be filed within 30 days after the date of entry of the judgment or order appealed from. This time limitation is both mandatory and jurisdic- tional and may not be waived. It may, however, be tolled if a timely motion to alter or amend the judgment under
925 F.2d 666, *; 1991 U.S. App. LEXIS 1696, **1;
18 Fed. R. Serv. 3d (Callaghan) 989
Page 2
Fed. R. Civ. P. 59(e) is filed in the district court. Fed. R. App. P. 4(a)(4). For purposes of Fed. R. App. P. 4(a), a motion for reconsideration qualifies as a motion under Rule 59(e) to alter or amend a judgment.
Civil Procedure > Relief From Judgment > Motions to
Alter & Amend
HN5 Fed. R. Civ. P. 59(e) does not specify when a mo- tion to alter or amend must be "filed" but instead provides that the motion to alter or amend judgment must be served not later than 10 days after the entry of the judgment. This
10 day time period, like the 30-day time limit for filing the notice of appeal, is jurisdictional, and cannot be extended in the discretion of the district court. Although Fed. R. Civ. P. 59(e) does not specify a time limit for filing, Fed. R. Civ. P. 5(d) provides that filing must occur either prior to service or "within a reasonable time thereafter."
COUNSEL:
James I. Welch, Pro Se, Wilmington, Delaware.
JUDGES:
Sloviter, Hutchinson and Alito, Circuit Judges.
OPINIONBY:
ALITO
OPINION:
*667 OPINION OF THE COURT ALITO, Circuit Judge
This is an appeal from the dismissal of an in forma pauperis complaint for failure to effect service of process. Because the court officers are required by statute "to issue and serve all process" in such cases (28 U.S.C. § 1915(c)), we will vacate the order of dismissal and remand the mat- ter to the district court.
I.
On April 12, 1989, James I. Welch, a federal pris- oner, filed a pro se complaint in the District of Delaware against defendant James Folsom, alleging that Folsom
"took Welch's property including records and files . . . with the intent of defrauding" him. The complaint invoked the court's diversity jurisdiction (28 U.S.C. § 1332) and listed an address in Wilmington, Delaware, where Folsom allegedly resided. The district court granted Welch's mo- tion to proceed in forma pauperis but did not direct court officers to serve Folsom, and service was never effected. On September 13, 1989, the district court issued an order **2 directing Welch to show cause why service had not been made within 120 days after the filing of the
complaint, as generally required by Fed. R. Civ. P. 4(j). The order stated that if good cause was not shown, the action would be dismissed without prejudice.
Welch filed a response stating that he had "observed from the experience of other inmates filing lawsuits, the practise sic is for the Judge in in forma pauperis cases
(of which this is one) to eventually refer the case to a Magistrate, and for the Magistrate to eventually order the Clerks sic office to do the service of process." Welch also noted that "until all of this is done, a process which in virtually every instance takes much longer than 120 days, the Defendant is never served in an inmate case." Attached to Welch's response was a motion requesting the court to "issue a summons in this matter, and serve it and a copy of the Complaint, thru sic the U.S. Marshal, upon Mr. Folsom at the address" set forth in the com- plaint. Welch also requested a copy of the local rules "in order that I may avoid making any more mistakes in my
handling of this case."
On February 5, 1990, the district court dismissed the complaint without **3 prejudice for failure to serve pro- cess. On February 20, 1990, Welch filed with the court -- but did not serve upon Folsom -- a motion for reconsid- eration pursuant to Fed. R. Civ. P. 59(e), asserting once more that the United States Marshal should have been directed to serve his complaint. In the alternative, Welch argued that he had shown "Rule 6 excusable neglect" (see Fed. R. Civ. P. 6(b)) and "Rule 4 good cause" (see Fed. R. Civ. P. *668 4(j)) for failure to effect timely service. By order entered March 23, 1990, Welch's motion for reconsideration was denied. This appeal followed.
II.
A. Before addressing the merits of this case, we must first consider whether we have jurisdiction to enter- tain Welch's appeal. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S. Ct. 1326, 89 L. Ed. 2d
501 (1986). HN1 Under 28 U.S.C. § 1291 -- the only arguable basis for jurisdiction in this case -- only final orders are appealable. United States v. Fisher, 871 F.2d
444, 445 (3d Cir. 1989). A final order is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 57 L. Ed. 2d
351 (1978), quoting Catlin v. United States, **4 324
U.S. 229, 233, 65 S. Ct. 631, 89 L. Ed. 911 (1945).
In general, this court has held that orders dismiss- ing complaints without prejudice are not final within the meaning of Section 1291 because the plaintiff may cure the deficiency and refile the complaint. See, e.g., Newark Branch, N.A.A.C.P. v. Harrison, N.J., 907 F.2d 1408, 1416
(3d Cir. 1990); Borelli v. City of Reading, 532 F.2d 950,
925 F.2d 666, *668; 1991 U.S. App. LEXIS 1696, **4;
18 Fed. R. Serv. 3d (Callaghan) 989
Page 3
951 (3d Cir. 1976). See also Czeremcha v. Int'l Assoc. of
Machinists and Aerospace Workers, 724 F.2d 1552, 1554
(11th Cir. 1984). HN2 If the plaintiff cannot cure the defect that led to dismissal or elects to stand on the dis- missed complaint, however, we have held that the order of dismissal is final and appealable. See Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 877-78 (3d Cir.
1990); Green v. Humphrey Elevator and Truck Co., 816
F.2d 877, 878 n. 4 (3d Cir. 1987) ("order dismissing the complaint in the instant action is final and thus reviewable
. . . because the statute of limitations on appellant's cause of action has run."); Fassett v. Delta Kappa Epsilon, 807
F.2d 1150, 1157 (3d Cir. 1986) cert. denied, 481 U.S.
1070, 107 S. Ct. 2463, 95 L. Ed. 2d 872 (1987); Cardio- Medical Assoc. v. Crozer-Chester **5 Medical Center,
721 F.2d 68, 76 (3d Cir. 1983); Borelli v. City of Reading,
532 F.2d at 952. This exception does not lead to piece- meal appeals because "if plaintiff cannot or will not bring a second action, there is no risk of multiple litigation." Trevino-Barton, at 878.
We believe that the present case squarely fits this ex- ception. HN3 When leave to proceed in forma pauperis is granted, as it was in this case, 28 U.S.C. § 1915(c) directs "the officers of the court" to "issue and serve all process." This requirement is apparently based on the rea- sonable assumption that a plaintiff who is unable to pay fees and costs will also be unable to pay the cost of se- curing service of process. Accordingly, when a complaint filed by a plaintiff granted leave to proceed in forma pau- peris is dismissed without prejudice for failure to effect service of process, we believe we may infer that the plain- tiff cannot afford to pay for private service and thus cannot cure the defect. The order of dismissal is therefore final and appealable under 28 U.S.C. § 1291.
B. Having found that the order dismissing Welch's complaint without prejudice is appealable, we must next determine whether **6 Welch filed his notice of ap- peal on time. HN4 Federal Rule of Appellate Procedure
4(a)(1) provides that a notice of appeal in a civil proceed- ing must be filed "within 30 days after the date of entry of the judgment or order appealed from." See also Smith v. Evans, 853 F.2d 155, 157 (3d Cir. 1988). This time limita- tion is both "'mandatory and jurisdictional'" and may not be waived. Browder v. Director of Dep't of Corrections,
434 U.S. 257, 264, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978),
quoting United States v. Robinson, 361 U.S. 220, 229, 80
S. Ct. 282, 4 L. Ed. 2d 259 (1960). It may, however, be tolled if "a timely motion" to alter or amend the judg- ment under Fed. R. Civ. P. 59(e) is "filed in the district court." Fed. R. App. P. 4(a)(4). "This court has held for purposes of Rule 4(a), that a motion for reconsideration qualifies as a motion under Rule 59(e) to alter or amend a judgment." First Jersey Nat'l Bank v. Dome Petroleum
Ltd., 723 F.2d 335, 337 (3d Cir. 1983), citing Richerson v. Jones, 572 F.2d 89, 93 (3d Cir. 1978).
*669 As noted, a Rule 59(e) motion does not toll the time for appeal, unless it is "timely filed." Fed. R. App. P. 4(a)(4). HN5 Rule 59(e), however, does not specify when such a motion must be "filed" but instead provides **7 that the motion must "be served not later than 10 days after the entry of the judgment." Fed. R. Civ. P. 59(e). See Sonnenblick-Goldman Corp. v. Nowalk, 420
F.2d 858, 859 (3d Cir. 1970) (Rule 59(e) "motion must have been served within the time required") (emphasis added). This ten-day time period, like the 30-day time limit for filing the notice of appeal, "is jurisdictional, and
'cannot be extended in the discretion of the district court.'" de la Fuente v. Central Elec. Coop., Inc., 703 F.2d 63 (3d Cir. 1983), quoting Gribble v. Harris, 625 F.2d 1173, 1174
(5th Cir. 1980). Although Fed. R. Civ. P. 59(e) does not specify a time limit for filing, Fed. R. Civ. P. 5(d) provides that filing must occur either prior to service or "within a reasonable time thereafter."
Applying these technical rules to the present case, we conclude that Welch's notice of appeal was timely. The order of dismissal was entered on February 5, 1990. On February 20, 1990, Welch's motion for reconsider- ation was filed with the district court. When the inter- vening weekends and Washington's Birthday holiday are excluded, as prescribed by Fed. R. Civ. P. 6(a), this motion was filed within ten days after **8 the entry of the or- der of dismissal. As noted, however, Fed. R. Civ. P. 59(e) requires service, not filing, within ten days after entry of the judgment. Because Welch did not "serve" his motion for reconsideration upon Folsom within ten days (or in- deed at any time), it might appear that Welch's motion for reconsideration was never effectively filed and thus did not toll the time for filing a notice of appeal. Upon closer examination, however, we conclude that this result is not prescribed by the relevant rules.
Fed. R. Civ. P. 59(e), which requires service of a mo- tion to alter or amend within ten days after entry of the judgment, must be read in conjunction with Fed. R. Civ. P. 5, which specifies detailed requirements regarding ser- vice. Fed. R. Civ. P. 5(a) states that "every written motion other than one which may be heard ex parte" must be served upon "each of the parties." Implicit in this rule is the precept that a motion need not be served if it may be heard ex parte.
Under this precept, no service was required in this case. Since the district court dismissed Welch's complaint without Folsom's presence, it is difficult to see why the court could not reconsider that dismissal **9 using a like procedure. Moreover, if we hold that service was needed, we would have to conclude either (1) that Welch could
925 F.2d 666, *669; 1991 U.S. App. LEXIS 1696, **9;
18 Fed. R. Serv. 3d (Callaghan) 989
Page 4
serve Folsom in the manner prescribed by Fed. R. Civ. P.
5(b) even though Folsom had not been previously served and even though Rule 5 "presupposes that the court has already gained jurisdiction over the parties" (2 J. Moore, Federal Practice § 5.04 at 5-13 (1989)), or (2) that Welch was required to effect personal service in compliance with Fed. R. Civ. P. 4 in order to obtain reconsideration of the dismissal of his complaint for failure to effect personal service in compliance with Rule 4. Neither of these in- terpretations is tenable. Therefore, we hold that when the complaint of a plaintiff proceeding in forma pauperis is dismissed before service of process (a frequent occur- rence under 28 U.S.C. § 1915(d)), a motion under Fed. R. Civ. P. 59(e) tolls the time for appeal if it is filed with the district court within ten days after entry of the judgment. Service upon parties named in the complaint but not yet served with the summons and complaint is not required. Under this construction, Welch's motion for reconsidera- tion tolled the time for appeal, and **10 his notice of appeal was therefore timely. n1
n1 Because of our holding, we need not reach Welch's assertions of "good cause" and "excusable neglect."
C. By comparison with the jurisdictional issues, the merits of this appeal are simple. An in forma pauperis complaint may be dismissed prior to service if "the allega- tion of poverty is untrue" or "the *670 action is frivolous or malicious." 28 U.S.C. § 1915(d); Roman v. Jeffes, 904
F.2d 192, 195 (3d Cir. 1990) ("the appropriate time to make a decision to dismiss a case pursuant to § 1915(d) is before service of a complaint."). See also Neitzke v.
Williams, 490 U.S. 319, 109 S. Ct. 1827, 1831-34, 104
L. Ed. 2d 338 (1989) (defining the term "frivolous" as it applies to § 1915(d) complaints and comparing § 1915(d)
"frivolousness" with dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6)); Oatess v. Sobolevitch,
914 F.2d 428, 430-31 (3d Cir. 1990) (applying Neitzke's holding). Here, however, the district court did not dismiss on any of these grounds. Consequently, the court **11 was compelled to proceed in compliance with 28 U.S.C.
§ 1915(c), which unequivocally states: "the officers of the court shall issue and serve all process, and perform all duties in in forma pauperis cases." See also Fed. R. Civ. P. 4(c)(2)(B)(i). Therefore, the court erred by dismissing the complaint on the ground that Welch failed to effect service. See Puett v. Blandford, 895 F.2d 630, 635 (9th Cir. 1990) ("an incarcerated pro se plaintiff proceeding in forma pauperis . . . should not be penalized by having his or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the ir respective duties"); Rochon v. Dawson, 828 F.2d
1107, 1110 (5th Cir. 1987) ("a plaintiff proceeding in forma pauperis is entitled to rely upon service by the U.S. Marshals and should not be penalized for failure of the Marshal's Service to properly effect service of process, where such failure is through no fault of the litigant."); Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2nd Cir. 1986) ("the interests of justice, informed by a lib- eral interpretation of Rule 4, are best served by allowing this litigant to rely on **12 the personal service, albeit untimely, ultimately effected by the Marshal's Service."). Accordingly, we will vacate the order of dismissal and
remand the matter to the district court.
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