Smart v. Applied Materials

*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50696
(Summary Calendar)
VALERIE SMART,
Plaintiff-Appellant,
versus
APPLIED MATERIALS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas, Austin
A-00-CV-159-JN
July 3, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff Valerie Smart (“Smart”) appeals from the district court’s dismissal without prejudice
of her Title VII complaint for failure to effect service in accordance with Fed. R. Civ. P. 4(m). For
the following reasons, we reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
On August 7, 1998, Smart filed a Title VII discrimination claim based on race, sex, and

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1Smart is represented by counsel in this appeal.
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disability against Applied Materials, Inc. (“Applied”) with the Austin Human Rights Commission and
the Equal Employment Opportunity Commission (“EEOC”). The EEOC sent Smart a letter
informing her that it was dismissing her suit for lack of sufficient evidence and advising her that she
could pursue a lawsuit against Applied in federal court.
Smart filed a pro se lawsuit1 against Applied in the district court after the court denied her
request to proceed in forma pauperis. After she filed the lawsuit, the district court also denied her
request for appointment of counsel.
Smart failed to serve Applied with process within 120 days of filing her complaint, in
accordance wit h Fed. R. Civ. P. 4(m). The district court notified Smart that if she did not effect
service within ten days or show cause for her failure to effect service, her complaint would be
dismissed without prejudice. The court ordered Smart to show cause within ten days why her
complaint should not be dismissed. Smart responded to the district court’s order by writing the court
a letter indicating that she lacked knowledge regarding legal matters and other resources. She also
stated that she was suffering from various injuries, is a single parent, had doctor’s appointments, had
been denied certain benefits, and was behind on her bills.
The district court found that Smart had failed to effect service on Applied within ten days and
that the reasons stated in the letter for the failure did not constitute good cause. The court dismissed
her complaint without prejudice for failure to comply with the court’s order, failure to comply with
the Federal Rules of Civil Procedure, and failure to prosecute. Smart now appeals the district court’s
ruling.

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2Rule 4(m) provides:
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 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.
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DISCUSSION
Smart argues that the district court incorrectly applied the good cause standard of Fed. R. Civ.
P. 4(m)2 in her case. She asserts that the court failed to make an excusable neglect inquiry and
summarily dismissed her complaint without considering the circumstances surrounding her failure to
effect service on Applied.
Smart also claims that her failure to effect service within 120 days was due to misinformation
that she received from the district court clerk’s office. Furthermore, she asserts that her failure to
effect service on Applied within ten days of the district court’s order was due to the ambiguity of the
order and to misinformation that she received from the district court’s clerk regarding the
requirements of the order. She claims that she did not attempt to effect service on the defendant
because it was unclear from the district court’s order whether she was required to attempt to effect
service, show cause for her failure to do so, or do both. Moreover, she argues that the district court’s
clerk informed her that the order only meant that she had to write a letter explaining to the court her
failure to effect service. Smart also emphasizes her pro se status in arguing that the district court
erred in dismissing her complaint and avers that the district court should have given her more latitude
in assessing whether her claims should be dismissed.
We review a district court’s dismissal of a complaint for failure to effect timely service of

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3We note that Smart did not present her allegation that the district court’s clerk misinformed her
regarding the requirement that she serve Applied within 120 days of filing her complaint. Thus, we
will not consider this argument in her appeal. Furthermore, it is unnecessary to consider t his
argument given our disposition of her appeal.
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process for abuse of discretion. Lindsey v. United States R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir.
1996). When a plaintiff has failed to effect service within the time required under Fed. R. Civ. P.
4(m), the district court may, on its own initiative and in its discretion, direct that service be effected
within a specified period of time. FED. R. CIV. P. 4(m); Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.
1996). The court may also choose to dismiss the complaint without prejudice. FED. R. CIV. P. 4(m);
Thompson 91 F.3d at 21. However, “[i]f good cause is present, the district court must extend time
for service. If good cause does not exist, the court may, in its discretion, decide whether to dismiss
the case without prejudice or extend time for service.” Thompson 91 F.3d at 21.
We find that Smart has demonstrated that the district court abused its discretion in dismissing
her complaint without prejudice.3 We agree with Smart that the court’s order is ambiguous from the
perspective of a pro se litigant. The order stated the following:
In accordance with FED. R. CIV. P. 4(M), the Court now notifies Plaintiff that if
service is not effected within ten (10) days of the date of this Order, unless good
cause is shown for the failure to effect service, this cause of action shall be dismissed
without prejudice.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff
SHOW CAUSE within ten days (10) of the date of this Order, why this cause of
action should not be dismissed in accordance with FED. R. CIV. P. 4(M).
IT IS FURTHER ORDERED that failure to respond to this Order may result in the
dismissal of this cause of action pursuant to FED. R. CIV. P. 41(B) for failure to
prosecute and for failure to comply with a Court Order.
One possible reading of the district court’s order is that the court gave Smart the option of either
effecting service within ten days or showing cause for her failure to do so. Another other possible

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interpretation of the above quoted language is that the district court ordered Smart to effect service
on Applied and to show cause why her complaint should not be dismissed for having previously failed
to effect service within the 120-day period required by Fed. R. Civ. P. 4(m). The only other possible
reading of the court’s order was that Smart was merely ordered to show cause for failing to effect
service on Applied. This last interpretation, Smart asserts, is the one that she followed. Smart’s
interpretation is not untenable given that the only instruction following the portion of the order
stating, “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED” was for Smart to show
cause why her complaint should not be dismissed.
If the intent of the district court was to give Smart an option, had she understood the order
as indicating such, she may have chosen to effect service on Applied instead of attempting to show
cause for failing to do so. Similarly, if the intent of the court was to order Smart to effect service as
well as show cause, then she may have done both. In short, had the show cause order been clear,
Smart may have chosen to effect service on Applied instead of or in addition to showing cause why
her complaint should not be dismissed.
Compounding the ambiguity of the show cause order is the district court’s order dismissing
Smart ’s complaint. That order states that “Plaintiff has failed to effect service and failed to show
good cause for doing so as of the date of this Order. Therefore, the court finds this cause should be
dismissed without prejudice.” Again, the court’s language could be interpreted as dismissing Smart’s
complaint because she failed to effect service or to show good cause or because she failed to effect
service and show good cause.
Accordingly, we find that the court abused its discretion in dismissing Smart ’s complaint
because its show cause order did not clearly indicate, given that the plaintiff was a pro se litigant, the

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steps that Smart was required to take in order to prevent the dismissal of her complaint. Thus, we
reverse and remand this case. On remand, the district court should give Smart another opportunity
to effect service on Applied within ten days or whatever time period it deems appropriate.
CONCLUSION
Because we find that the district court’s show cause order is ambiguous, we REVERSE the
district court’s order dismissing Smart’s complaint and REMAND this case for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.

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