IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-20367 Summary Calendar

CHARLIE B. NAYS,

Plaintiff-Appellant,

versus

RODNEY E. SLATER, SECRETARY DEPARTMENT OF TRANSPORTATION,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-1648

October 8, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Appellant Charlie Nays appeals from the district court’s

decision granting the motion to dismiss filed by Appellee Rodney

Slater, Secretary of Transportation. The district court based its

decision on Nays’s failure to properly serve the Appellee. Nays

filed this employment discrimination suit on May 16, 2001, but

failed to properly serve the Secretary within the requisite 120-day

time period. On September 20, 2001, the district court entered a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. show cause order requiring the plaintiff to file a response

indicating why the case should not be dismissed without prejudice

pursuant to Federal Rule of Civil Procedure 4(m). On October 1,

2001, the plaintiff filed a request for additional time to serve

the defendant, citing as the reason for the delay that “[t]he

employee in the Plaintiff Attorney’s office responsible for

completing service ... was terminated in April, 2001 [and the]

complaint was not served as the result of an office error.” The

district court granted the plaintiff’s request, allowing the

plaintiff until October 5, 2001 to complete service. Appellant

attempted to effectuate service upon Appellee by mailing the

summons and a copy of the complaint to the Department of

Transportation on October 3, 2001. The Department received the

summons and complaint on October 11, 2001.

On November 8, 2001, the U.S. Attorney’s Office sent a letter

to Appellant’s counsel advising her that transmittal of the summons

and complaint to the Department of Transportation did not

constitute complete service of process under Rule 4(i)(1), which

requires that a plaintiff also serve the U.S. Attorney for the

district in which the action was filed. Shortly after, on November

13, 2001, the district court entered a second show cause order,

which directed the plaintiff to file a response to the order no

later than November 23, 2001. Nays filed the response on November

21, 2001, and indicated that “[o]n November 20, 2001, counsel for

the plaintiff telephoned the Assistant United States Attorney

2 assigned to this lawsuit and forwarded another copy of the

Plaintiff’s lawsuit and summons.” Appellee admits that, on

November 26, 2001, service was perfected upon the Department of

Transportation by service upon the U.S. Attorney.

On January 25, 2001, the defendant filed a motion to dismiss

because Nays had failed to perfect service within the 120 day time

limit, and because Nays had failed to pay the filing fee in the

case.1 Nays responded to the motion and paid the filing fee on

February 19, 2001. On February 28, 2002, the district court

granted the defendant’s motion, on the basis that no proof of

service existed apart from Nays’s statement in his response to the

motion that the defendant had been properly served. In its order,

the court explained,

because Plaintiff failed to cause service properly to be made upon Defendant within 120 days after the filing of this case, within the enlarged period of time allowed for such, and even to the present date, and because the Plaintiff has failed to show good cause to excuse such failures to effect service upon Defendant, the Court finds that Defendant’s Motion ... should be granted, and that Plaintiff has failed to prosecute this case with minimal diligence in accordance with the Federal Rules of Civil Procedure.

On appeal, Nays urges that the district court abused its discretion

in granting the motion to dismiss because, contrary to the district

court’s understanding of the case, Nays fully effectuated service

upon the defendant on November 26, 2001.

1 At the time of the suit’s filing, Nays paid the filing fee with a check, which was subsequently returned for insufficient funds. The filing fee went unpaid until February 19, 2002.

3 “The district court enjoys a broad discretion in determining

whether to dismiss an action for ineffective service of process.”2

Nays may be correct in his argument that the district court was

operating under the mistaken belief that the plaintiff had not

completed service upon the defendant at the time the defendant

filed the motion to dismiss. However, the district court was

patient with the plaintiff and granted a generous extension.

Service was not perfected within the extended period. That was the

main concern of the district court, and we cannot find that an

abuse of its wide discretion.

AFFIRMED.

2 George v. U.S. Dep’t of Labor,

(5th Cir. 1986).

4