On Appeal from the United States District Court for the District of Delaware; D.C. Civil No. 89-00179.
Sloviter, Hutchinson and Alito, Circuit Judges.
This is an appeal from the dismissal of an in forma pauperis complaint for failure to effect service of process. Because the court officers are required by statute "to issue and serve all process" in such cases (28 U.S.C. § 1915(c)), we will vacate the order of dismissal and remand the matter to the district court.
On April 12, 1989, James I. Welch, a federal prisoner, filed a pro se complaint in the District of Delaware against defendant James Folsom, alleging that Folsom "took [Welch's] property including records and files . . . with the intent of defrauding" him. The complaint invoked the court's diversity jurisdiction (28 U.S.C. § 1332) and listed an address in Wilmington, Delaware, where Folsom allegedly resided. The district court granted Welch's motion to proceed in forma pauperis but did not direct court officers to serve Folsom, and service was never effected.
On September 13, 1989, the district court issued an order directing Welch to show cause why service had not been made within 120 days after the filing of the complaint, as generally required by Fed. R. Civ. P. 4(j). The order stated that if good cause was not shown, the action would be dismissed without prejudice.
Welch filed a response stating that he had "observed from the experience of other inmates filing lawsuits, the practise [sic] is for the Judge in in forma pauperis cases (of which this is one) to eventually refer the case to a Magistrate, and for the Magistrate to eventually order the Clerks [sic] office to do the service of process." Welch also noted that "until all of this is done, a process which in virtually every instance takes much longer than 120 days, the Defendant is never served in an inmate case."
Attached to Welch's response was a motion requesting the court to "issue a summons in this matter, and serve it and a copy of the Complaint, thru [sic] the U.S. Marshal, upon Mr. Folsom at the address" set forth in the complaint. Welch also requested a copy of the local rules "in order that I may avoid making any more mistakes in my handling of this case."
On February 5, 1990, the district court dismissed the complaint without prejudice for failure to serve process. On February 20, 1990, Welch filed with the court -- but did not serve upon Folsom -- a motion for reconsideration pursuant to Fed. R. Civ. P. 59(e), asserting once more that the United States Marshal should have been directed to serve his complaint. In the alternative, Welch argued that he had shown "Rule 6 excusable neglect" (see Fed. R. Civ. P. 6(b)) and "Rule 4 good cause" (see Fed. R. Civ. P. 4(j)) for failure to effect timely service. By order entered March 23, 1990, Welch's motion for reconsideration was denied. This appeal followed.
A. Before addressing the merits of this case, we must first consider whether we have jurisdiction to entertain Welch's appeal. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S. Ct. 1326, 89 L. Ed. 2d 501 (1986). Under 28 U.S.C. § 1291 -- the only arguable basis for jurisdiction in this case -- only final orders are appealable. United States v. Fisher, 871 F.2d 444, 445 (3d Cir. 1989). A final order is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978), quoting Catlin v. United States , 324 U.S. 229, 233, 65 S. Ct. 631, 89 L. Ed. 911 (1945).
In general, this court has held that orders dismissing complaints without prejudice are not final within the meaning of Section 1291 because the plaintiff may cure the deficiency and refile the complaint. See, e.g., Newark Branch, N.A.A.C.P. v. Harrison, N.J., 907 F.2d 1408, 1416 (3d Cir. 1990); Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976). See also Czeremcha v. Int'l Assoc. of Machinists and Aerospace Workers, 724 F.2d 1552, 1554 (11th Cir. 1984). If the plaintiff cannot cure the defect that led to dismissal or elects to stand on the dismissed complaint, however, we have held that the order of dismissal is final and appealable. See Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 877-78 (3d Cir. 1990); Green v. Humphrey Elevator and Truck Co., 816 F.2d 877, 878 n.4 (3d Cir. 1987) ("order dismissing the complaint in the instant action is final and thus reviewable . . . because the statute of limitations on appellant's cause of action has run."); Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1157 (3d Cir. 1986) cert. denied, 481 U.S. 1070, 107 S. Ct. 2463, 95 L. Ed. 2d 872 (1987); Cardio-Medical Assoc. v. ...