Legal Memorandum: Dismissal for Lack of Service–US

Issue: Does a mechanism exist for a plaintiff to challenge a court’s dismissal for lack of service in the 6th Circuit (Texas federal law) under Fed. R. Civ. Pro. 60(b)?

Under Fed. R. Civ. Pro. (4)(m), the court is permitted to dismiss a case without prejudice if the plaintiff fails to serve the defendant within 120 days of filing the complaint so long as notice of intent to dismiss and opportunity to show good cause are first provided to the plaintiff.  Fed. R. Civ. Pro. (4)(m); Sanders v. Southwestern Bell Tel., L.P., 544 F. 3d 1101, 1111 (10th Cir. Okla. 2008) (notice to plaintiff required prior to dismissal).

Fed. R. Civ. Pro. 60(b) provides that “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding” for any one of the following six enumerated reasons: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.” 

Rule 60(b) is only available where a final judgment has been issued.  Fed. R. Civ. Pro. 60(b); see also Dassault Systemes, SA v. Childress, 663 F.3d 832, 840 (6th Cir. 2011) (distinguishing between final and nonfinal default […]