Appeal from order of the United States District Court for the Southern District of New York (Brieant, J.) granting defendant's motion to dismiss for failure to effect service of summons and complaint and for neglect to prosecute, in an action brought by an incarcerated pro se plaintiff. Reversed and remanded.
Before: LUMBARD, OAKES and MINER, Circuit Judges.
Anthony Romandette appeals pro se from an order of the United States District Court for the Southern District of New York (Brieant, J.) dismissing his diversity action for failure to effect service of the summons and complaint, Fed. R. Civ. P. 4, and for neglect to prosecute, Fed. R. Civ. P. 41(b). At the time the lawsuit was instituted-December 3, 1984-and throughout most of the litigation, Romandette was incarcerated. Due to his incarceration, he was dependent upon prison library facilities to research his legal claims and, because of his in forma pauperis status, dependent upon United States Marshals to effectuate service of process. Because of the special circumstances constraining Romandette in the prosecution of his suit, we hold that the district court erred in dismissing for failure to effect service and abused its discretion in dismissing for neglect to prosecute. We therefore reverse.
Romandette filed this diversity action on December 3, 1984, asserting products liability claims against Weetabix Company, Inc. ("Weetabix"), a Massachusetts corporation. He sought compensatory and punitive damages for physical injuries, including a broken tooth, and emotional harm allegedly attributable to ingesting a foreign substance while eating Weetabix Cornflakes at the Downstate Correctional Facility. After plaintiff was granted leave to proceed in forma pauperis, his pro se summons and complaint was forwarded to the United States Marshal for the Southern District of New York for service.*fn1 On December 31, 1984, pursuant to Fed. R. Civ. P. 4(c)(2)(C)(ii), the Marshal's Service mailed a copy of the summons and complaint by first class mail to Weetabix. On January 7, 1985, Weetabix's vice-president and treasurer signed and returned the acknowledgement form. In its answer, Weetabix asserted Romandette's failure to effect service in accordance with New York law*fn2 as an affirmative defense.
On April 25, 1985, Romandette moved, pursuant to Fed. R. Civ. P. 12(f), to strike Weetabix's affirmative defense, arguing that Weetabix had been served properly on January 7 in accordance with the Federal Rules of Civil Procedure, when the acknowledgment form was signed. Weetabix countered that service had not been effected in accordance with Fed. R. Civ. P. 4(d)(3), pertaining to service upon a corporate defendant. Between April 25 and July 2, 1985, Romandette and Weetabix actively engaged in discovery and each filed a number of motions. Finally, on July 2, Judge Gagliardi responded to several of these motions. With regard to Weetabix's defense of improper service, the court noted that whether Fed. R. Civ. P. 4(c)(2)(C)(ii) permits service by mail on out-of-state defendants is the subject of disagreement among various district courts. Although courts in the Southern District of New York have held such service invalid, Judge Gagliardi concluded that it would not be in the interests of justice to penalize Romandette for his reliance on the actions of the U.S. Marshal's Service and that Weetabix was not prejudiced since it had formally acknowledged service:
It would not be in the interest of justice and the philosophy of Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (pro se litigants given the benefit of liberal interpretation of federal rules) to foster continued uncertainty concerning the propriety of service in this case or to penalize plaintiff for his reliance on the actions of the U.S. Marshal's service. There is little risk of prejudice to defendant in this regard, since defendant formally acknowledged the service by mail, and in fact received the summons and complaint in January 1985.
Memorandum Opinion, July 2, 1985. The court noted that the Marshal's Service had indicated that it would personally serve Weetabix.
On July 26, 1985, the case was reassigned to Judge Brieant. Weetabix moved for dismissal on December 10, 1985, on the grounds that personal service had never been effected and that Romandette had filed to prosecute by taking no action since June 1985. Romandette responded that "on information and belief [the service controversy] was cured in Judge Gagliardi's order . . . ." Plaintiff's Affidavit, December 23, 1985. Additionally, he explained his six months of inaction in the case as resulting from a reversal of his state conviction and the granting of a new trial, which necessitated his transfer to Albany County Jail on July 3, 1985. That transfer placed him in a facility alleged to be lacking adequate library and legal assistance resources. He explained that he was "unable to determine the exact significance and meaning of FRCP 4 and FRCP 41(b) because said FRCP are not in our law library." Id. Therefore, he requested assignment of counsel, or, alternatively, a "stay in all proceedings" through March 28, 1986.
Judge Brieant determined that, "having chosen to proceed pro se, this litigant should have complied with Judge Gagliardi's directives," and granted Weetabix's motion to dismiss for failure to effect service and neglect to prosecute on January 21, 1986. Memorandum Opinion, January 21, 1986. Unfortunately for Romandette, although the Marshal's Service had noted a request to serve Weetabix personally on June 13, 1985, personal service was not effected until April 1, 1986, nearly three and a half months after dismissal of this action. Apparently, the delay in service was due to the volume of requests for service received by the Marshal to whom Romandette's complaint was forwarded, and not to any dilatoriness on the part of Romandette.
The preliminary issue on this appeal is whether the district court erred in dismissing this suit, brought by an incarcerated pro se litigant proceeding in forma pauperis, because the U.S. Marshal had yet to effect personal process through no fault of the litigant. Initially, we note that Judge Gagliardi ruled that "the interests of justice" mandated that Romandette be allowed the chance to serve Weetabix personally through the Marshal's Service. Judge Brieant, however, apparently believing that Romandette had failed to take some action to effect this service, concluded that the "litigant should have complied with Judge Gagliardi's directives." In fact, Romandette had done everything in his power to effect personal service through the Marshal's Service. Because ...