UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY B. SELF,

Plaintiff-Appellant,

v.

AUTOLIV, ASP,

Defendant-Appellee.	No. 02-4244

(D.C. No. 01-CV-23-K)

(District of Utah)

ORDER AND JUDGMENT*

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.

Gary Self appeals the district court's dismissal of his civil rights suit against Autoliv ASP, Inc. ("Autoliv") for failure to serve Autoliv within 120 days. We exercise jurisdiction pursuant to 28 U.S.C. § 1291,1 reverse, and remand for the district court to give Self an opportunity to show good cause for his failure to prosecute his suit.

I

In February 2001, Self filed a pro se civil rights action against Autoliv, a manufacturer of automotive safety products, pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Self claims that he was not hired by Autoliv because of a mental disability.2 When Self did not serve a copy of the summons and complaint on the defendant within 120 days, the district court dismissed his action without prejudice for failure to prosecute. We review the district court's dismissal for failure to prosecute for abuse of discretion. Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000).

Under Federal Rule of Civil Procedure 4(m), a plaintiff has 120 days to serve process on the defendant unless he shows good cause or the district court grants a permissive extension.3 We have set forth a procedure to be followed by the district court in applying Rule 4(m):

The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service. . . . If good cause is shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.

Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). Under our precedent, therefore, the district court must first give the plaintiff an opportunity to show good cause, and then consider whether a permissive extension is warranted, before proceeding to dismiss the case.

In the instant case, Self argues that the district court dismissed his suit without giving him an opportunity to show cause for his failure to prosecute. There is no indication in the district court's docket sheet that Self was ordered to show cause before his suit was dismissed.4 The district court had an obligation under Rule 4(m) and Espinoza to give Self an opportunity to show why his action should not be dismissed for failure to prosecute. We take no position as to whether Self would have been able to show good cause, for it was an abuse of discretion to dismiss Self's suit without following the procedure we outlined in Espinoza.

II

Accordingly, the district court's dismissal of this case is REVERSED, and the case REMANDED for further proceedings consistent with this order and judgment.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge