Heath Rogers v. United States

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 3, 2025
• Docket: 24-2111
• Status: Unpublished

Opinion

USCA4 Appeal: 24-2111 Doc: 9 Filed: 11/03/2025 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-2111

HEATH ROGERS,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, Senior District Judge. (7:21-cv-00525-MFU)

Submitted: October 30, 2025 Decided: November 3, 2025

Before RUSHING and BENJAMIN, Circuit Judges, KEENAN, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Heath Rogers, Appellant Pro Se.

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PER CURIAM:

Heath Rogers appeals the district court’s order dismissing without prejudice his civil

action, sounding in negligence, brought pursuant to the Federal Tort Claims Act, 28 U.S.C.

§§ 1346, 2671-2680. The district court dismissed the action pursuant to Fed. R. Civ. P.

4(m), finding that Rogers failed to timely effect service on Defendant. This Rule provides:

If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant. . . . But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). Indeed, “under Rule 4(m), a district court possesses discretion to

grant the plaintiff an extension of time to serve a defendant with the complaint and

summons even absent a showing of good cause . . . for failing to serve the defendant during

the 90-day period.” Gelin v. Shuman, 35 F.4th 212, 220 (4th Cir. 2022). “[A] district court

abuses its discretion when . . . it dismisses a complaint sua sponte for lack of service

without first giving notice to the plaintiff and providing an opportunity for [him] to show

good cause for the failure to effect timely service.” Meilleur v. Strong, 682 F.3d 56, 61 (2d

Cir. 2012); see Ting-Hwa Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir.

1993) (stating standard of review).

The record establishes that the district court advised Rogers that failure to provide

service within 90 days would result in dismissal without prejudice. But after entry of the

dismissal order, Rogers filed a notice of appeal, with several attachments, averring that he

had not received the court’s prior order directing Rogers to serve process. Upon review,

we find this filing to be sufficient notice of Rogers’s claim that he had potentially legitimate

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reasons to excuse his nonservice and that, consistent with Rule 4(m), the district court

should consider whether to extend the service period. Accordingly, we vacate the dismissal

order and remand this case to the district court for further proceedings. *

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

VACATED AND REMANDED

* By this disposition, we express no opinion as to whether Rogers is entitled to an extension of the service period.