06-1149-pr Nagy v. Dwyer UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2007 3…

06-1149-pr
Nagy v. Dwyer
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2007 3
(Submitted September 19, 2007 Decided October 29, 2007) 4
Docket No. 06-1149-pr 5
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PAUL NAGY, 7
Plaintiff-Appellant, 8
v. 9
GERALD P. DWYER, Attorney for Panel, 10
Defendant-Appellee. 11
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B e f o r e: MESKILL, MINER and CABRANES, Circuit Judges. 13
This is an appeal from a judgment of the United States 14
District Court for the District of Connecticut, Kravitz, J., 15
dismissing the complaint pursuant to Federal Rule of Civil 16
Procedure 4(m). We vacate the judgment and remand this action to 17
the district court for further proceedings. 18
Paul Nagy, 19
for Appellant Pro Se. 20
21

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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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Per Curiam: 1
This is an appeal from a judgment of the United States 2
District Court for the District of Connecticut, Kravitz, J. The 3
issue presented is whether the district court must order the 4
United States Marshal Service (Marshals) to serve a summons and 5
complaint on behalf of a plaintiff proceeding in forma pauperis 6
where the plaintiff has not requested such service. We conclude 7
that absent a request from the plaintiff, the district court need 8
not order the Marshals to serve the defendant. Nevertheless, for 9
the reasons stated below, we vacate the judgment and remand this 10
action to the district court. 11
I. 12
On June 21, 2005, plaintiff-appellant Paul Nagy, 13
incarcerated and pro se, filed a complaint in the district court 14
against defendant-appellee Gerald Dwyer.1 With his complaint, 15
Nagy filed a motion to proceed in forma pauperis which the 16
district court granted on July 27, 2005. Attached to the court’s 17
order granting the motion was a notice from the Clerk. The 18
notice indicated that if the court ordered that the complaint be 19
served, Nagy would receive the forms necessary to request service 20

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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).
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by the Marshals. 1
Nagy also filed with his complaint a motion for the 2
appointment of a “Special Investigator” and a motion for an 3
“Expedited Ruling.” On October 14, 2005, in an order denying 4
these latter two motions, the district court noted that it had 5
been unable to determine from the record whether the defendant 6
had been served. The district court warned that absent proof of 7
service of the summons and complaint, the court could dismiss the 8
action 120 days after the filing of the complaint pursuant to 9
Federal Rule of Civil Procedure 4(m).2 The district court then 10
ordered Nagy to file proof of service on or before November 1, 11
2005 and “cautioned that a failure to comply with this order will 12
result in dismissal of his . . . suit.” Nagy asserts on appeal 13
that he never received this order nor the requisite forms to 14
request service by the Marshals. The record on appeal is 15
incomplete and does not divulge whether the order or forms were 16
sent to Nagy. 17

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On January 30, 2006, after Nagy failed to file proof of 1
service, the district court dismissed the action sua sponte. The 2
order of dismissal did not indicate whether the action was 3
dismissed with or without prejudice. On February 8, 2006, the 4
Clerk entered judgment, and on March 6, 2006, Nagy filed a timely 5
notice of appeal. 6
II. 7
We review for abuse of discretion a district court’s 8
dismissal of an action for failure to timely serve the defendant. 9
Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002). The 10
district court necessarily abuses its discretion when its 11
decision rests on an error of law. See Zervos v. Verizon New 12
York, 252 F.3d 163, 168-69 (2d Cir. 2001) (noting that an “error 13
of law” constitutes an “abuse of discretion”). 14
Nagy argues that the district court erred in dismissing 15
this action because plaintiffs proceeding in forma pauperis are 16
“automatically” entitled to service of the summons and complaint 17
by the Marshals. 18
We disagree. Federal Rule of Civil Procedure 4 19
provides in pertinent part that “[a]t the request of the 20
plaintiff . . . the court may direct that service be effected by 21
a United States marshal . . . . Such an appointment must be made 22
when the plaintiff is authorized to proceed in forma pauperis.” 23
Fed. R. Civ. P. 4(c)(2). Absent a request from the plaintiff, 24

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nothing in the text of Rule 4 requires the district court to 1
appoint the Marshals to effect service after granting pauperis 2
status to the plaintiff. 3
Moreover, the interests of judicial economy counsel 4
against the district court automatically ordering service by the 5
Marshals. In civil actions involving prisoners, such as this 6
case, automatic service would undermine much of the benefit 7
derived from the district court’s statutory obligation to review 8
and dismiss with prejudice frivolous complaints “as soon as 9
practicable after docketing.” 28 U.S.C. § 1915A(a)-(b)(1); see 10
Abbas v. Dixon, 480 F.3d 636, 639-40 (2d Cir. 2007) (discussing 11
section 1915A review). Further, automatic service by the 12
Marshals would prove impractical where a plaintiff fails to 13
provide sufficient information to identify or locate a defendant. 14
See Moore v. Jackson, 123 F.3d 1082, 1085-86 (8th Cir. 1997) 15
(identifying the necessity of plaintiffs’ providing sufficient 16
information to the Marshals). 17
It is true that we have recognized that “[a] party 18
allowed to proceed in forma pauperis is entitled to service by 19
the U.S. Marshal.” Romandette v. Weetabix Co., 807 F.2d 309, 310 20
n.1 (2d Cir. 1986) (construing an earlier version of Rule 4 which 21
required plaintiff proceeding in forma pauperis to request 22
service by the Marshals). An entitlement to service by the 23
Marshals, however, does not require automatic service. Indeed, 24

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while we concluded in Romandette that a failure by the Marshals 1
to properly serve a defendant constituted good cause to extend 2
the period of time in which service was due, in so holding we 3
relied on the specific circumstances of that case, namely, that 4
the plaintiff, incarcerated and pro se, “indicated to the court 5
his reliance on service by the Marshals and . . . timely 6
requested that the Marshals effect personal service.” Id. at 7
311. 8
In light of these considerations, we conclude that the 9
district court may require plaintiffs proceeding in forma 10
pauperis to affirmatively request that the court appoint the 11
Marshals to serve the summons and complaint on the defendant. 12
Accordingly, where, as here, the plaintiff made no such request, 13
it is not error for the district court to wait to order the 14
Marshals to serve the defendant until such a request has been 15
made. 16
Nevertheless, Rule 4(m) requires that the district 17
court provide notice to a plaintiff before dismissing an action 18
sua sponte for failure to timely serve the defendant. Fed. R. 19
Civ. P. 4(m). We previously have concluded that a failure to 20
provide notice pursuant to Rule 4(m) can constitute an abuse of 21
discretion or error of law where the absence of notice 22
forestalled a plaintiff from making a colorable argument that 23
there was good cause to extend the 120-day period in which 24

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service was due. See Thompson, 309 F.3d at 110 (vacating 1
dismissal pursuant to Rule 4(m) where the plaintiff allegedly 2
received neither the requisite forms to request service by the 3
Marshals nor notice of impending dismissal by the district 4
court). 5
In the instant case, had Nagy received notice, which he 6
contends he did not, he could have argued to the district court 7
that there was good cause to extend the 120-day period in light 8
of his assertion that he did not receive the necessary forms to 9
request service by the Marshals. See id. Because we do not know 10
whether, in fact, Nagy received notice and whether the district 11
court properly provided notice pursuant to Rule 4(m), we cannot 12
determine whether the district court’s dismissal was proper. 13
Therefore, in an abundance of caution, we vacate the district 14
court’s judgment and remand this action to permit the district 15
court to make such findings as may be necessary to determine 16
whether there is good cause to grant an extension of time in 17
which to serve the defendant. While we leave it to the district 18
court to make that determination in the first instance, we note 19
that questions material to this inquiry might include whether 20
Nagy received notice in accordance with Rule 4(m) and whether he 21
received the necessary forms to request service by the Marshals. 22
We further note that if the district court dismisses the 23
complaint anew after concluding that there is not good cause to 24

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grant an extension of time, such a dismissal should be without 1
prejudice. See Fed. R. Civ. P. 4(m). 2
III. 3
For the foregoing reasons, the judgment of the district 4
court dismissing the plaintiff’s complaint is hereby vacated and 5
the action is remanded with instructions to conduct further 6
proceedings consistent with this opinion. 7

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