Clemons-Ali v. Tulino
CourtCourt of Appeals for the Fifth Circuit
Date FiledNovember 12, 2026
Docket26-20195
StatusUnpublished
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Full Opinion
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
November 12, 2026
No. 26-20195
Summary Calendar Thomas B. Plunkett, III
____________ Clerk
Carey Clemons-Ali,
Plaintiff—Appellant,
versus
Doug Tulino, Acting Postmaster General,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:25-CV-5066
______________________________
Before Jones, Graves, and Wilson, Circuit Judges.
Per Curiam: *
Carey Clemons-Ali is an eight-year military veteran who worked at the
United States Postal Service (“USPS”) for a month before requesting
Family and Medical Leave Act (“FMLA”) leave to take care of her husband,
who had suffered a brain injury. She was denied leave and was subsequently
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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fired. Clemons-Ali filed suit in federal district court under the FMLA and
proceeded in forma pauperis (“IFP”).
After failing to follow up on her case and ensure process was served
on the USPS by an extended deadline, Clemons-Ali’s case was dismissed.
Due to a typo, the court had sent notices about her case to the wrong address
for the three-month period leading up to the deadline. But at the deadline,
the court caught the mistake, extended the deadline for Clemons-Ali to serve
process by a month, and mailed notices to the correct address. Clemons-Ali
never received those notices either—except for one, five days before the
extended deadline—because the address she provided also did not work.
Clemons-Ali discovered her case had been dismissed two weeks later, when
she went to the courthouse to file an amended complaint. She then filed a
Rule 60(b) motion to reinstate her case, which the district court denied.
On appeal, Clemons-Ali argues the district court erred by dismissing
her case because her failure to serve process should have been excused for
good cause. Because the district court did not abuse its discretion by
dismissing her case and declining to reinstate it, and because Clemons-Ali
can refile her case until the statute of limitations for her FMLA claims has
run, we AFFIRM.
BACKGROUND
In February 2025, Carey Clemons-Ali was denied leave and then fired
by the USPS. She sought leave to take care of her husband, who suffered a
catastrophic brain injury in January 2025.
In June 2025, Clemons-Ali filed an FMLA claim with the Equal
Employment Opportunity Commission (“EEOC”). But the EEOC does
not handle FMLA claims, 1 so it dismissed Clemons-Ali’s claims.
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1
FMLA plaintiffs can either directly file a civil suit in federal court or file a
complaint with the Department of Labor. See 29 U.S.C. § 2617 (FMLA enforcement
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In October 2025, Clemons-Ali filed an FMLA action in federal
district court and received permission to proceed IFP. Under 28 U.S.C. §
1915(d), federal district courts must order the U.S. Marshals to serve process
and provide proof of service for IFP plaintiffs. The district court did so here,
but the defendant was never served.
Before the service of process deadline, the district court attempted to
reach Clemons-Ali several times by mail. Each time, the mail was returned
as undeliverable. Though all Clemons-Ali’s court filings have her correct
address, the letters were mailed to an address with an incorrect street
number—one digit was incorrect. In January 2026, as the deadline for proof
of service approached, the Magistrate Judge (“MJ”) noted the incorrect
address, had it updated, and had new notices mailed to the correct address.
The MJ also gave Clemons-Ali until February 23 to serve process and file
proof of service.
The letters with the corrected address were returned as undeliverable
too. And all subsequent letters from the court had the correct address.
Clemons-Ali writes that the only letter she received about her case was dated
“January 28, 2025,” 2 but she did not receive that letter until “February 18,
2025” because of mail delivery delays. The date she received the letter was
five days before the extended deadline to serve process, however, and the
letter instructed Clemons-Ali to serve the U.S. Attorney’s office and U.S.
Attorney General. Her Rule 60(b) motion states this letter was from the
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provisions prescribing a right of action in any competent court or relief provided by “the
Secretary”); 29 C.F.R. § 1614.103(a) (regulation listing statutes covered for federal
employees by the EEOC, not including the FMLA).
2
Clemons-Ali mistakenly uses 2025 instead of 2026 for some of her factual
allegations.
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court, but her appellate brief asserts it came from the U.S. Attorney’s Office,
not the district court.
At any rate, the district court waited for the new deadline to pass and
dismissed the case without prejudice for failure to timely provide proof of
service. The mailed notices sent after the district court issued the judgment
were also returned as undeliverable. Clemons-Ali says she learned that the
case was dismissed on “March 3, 2025” by going in person to the courthouse
to “pick up summons and file her Amended Complaint.” She says this visit
was prompted by the letter she received that told her to serve the U.S.
Attorney and U.S. Attorney General. On March 19, she filed a Rule 60(b)
motion to vacate the dismissal and reinstate her case. The district denied the
motion the next day. The mailed notice following that decision was also
returned as undeliverable. Clemons-Ali timely appealed the dismissal and
denial of Rule 60(b) relief.
Discussion
We review a district court’s dismissal for failure to effectuate service
for abuse of discretion. Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th
Cir. 2013). We also review the denial of Rule 60(b) relief for abuse of
discretion. Williams v. Brown & Root, Inc., 828 F.2d 325, 328 (5th Cir. 1987).
Clemons-Ali argues that her case should be reinstated for two main
reasons. First, Fed. R. Civ. P. 4(m) says that a court must extend the time
for service if a plaintiff can show good cause for the failure to serve process.
Second, her circumstances justify reconsideration of the dismissal under
Fed. R. Civ. P. 60(b). She claims that she was entitled to rely on the U.S.
Marshals to serve process, and that because it was the court’s error that
caused any communication delays, she has good cause and extraordinary
circumstances that justify relief. She also argues that the dismissal violates
her due process rights, the deadline should be equitably tolled, and she was
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diligent in pursuing her case because she was busy preparing an amended
complaint.
USPS responds that as it never received service of process, the case
must be dismissed. Further, because Clemons-Ali’s address was corrected
and notices were re-mailed in sufficient time before the extended deadline,
the court’s error does not excuse her failure to serve process, and the
deadline should not be equitably tolled.
Dismissal
The U.S. Marshals are tasked with serving process and providing
proof of service for IFP plaintiffs, but ultimate responsibility for ensuring
service remains with the plaintiff. Plaintiffs “may not remain silent and do
nothing to effectuate service. At a minimum, a plaintiff should request
service upon the appropriate defendant and attempt to remedy any apparent
service defects of which a plaintiff has knowledge.” Lindsey v. U.S. R.R. Ret.
Bd., 101 F.3d 444, 447 (5th Cir. 1996).
Clemons-Ali has not alleged that she did anything to effectuate service
at all. She did not allege that she checked in on whether process had been
served or that she requested service. She alleges she provided the names and
addresses of all those to be served, but it appears that she only did so through
the complaint—she did not provide that information to the U.S. Marshals.
Thus, even though the propriety of the lower court’s dismissal must be
reviewed in light of the fact that the U.S. Marshals were tasked with service
of process, the district court did not err in dismissing Clemons-Ali’s case.
Indeed the court was bound to do so after giving her notice. Fed. R. Civ.
P. 4(m) (“the court—on motion or on its own after notice to the plaintiff—
must dismiss the action without prejudice”).
Rule 4(m) does include a provision that courts must extend the time
for service if the plaintiff shows good cause, but Clemons-Ali did not attempt
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to show good cause until after the dismissal. If Clemons-Ali did not receive
notice of the impending dismissal because of the court’s mistake, it may have
been appropriate to allow her to show good cause for an extension after the
dismissal. But the court sent notices to the correct address Clemons-Ali
provided, and she offers no reason why her failure to receive that notice was
for good cause. In fact, she received a letter on February 18, five days before
the deadline, putting her on notice, at minimum, that additional parties
needed to be served with process. This gave her time to contact the court
and request an extension. On the record before us, Clemons-Ali’s failure to
receive notice, and thus to show good cause for extension before the dismissal
need not be excused. Because Clemons-Ali made no attempt to demonstrate
good cause to the district court before the deadline for service passed, and
because she did not show good cause for her failure to receive notice or
request an extension when she did receive notice, the district court did not
abuse its discretion by dismissing Clemons-Ali’s case.
Rule 60(b)
Clemons-Ali argues the district court abused its discretion by not
reinstating her claim under Fed. R. Civ. P. 60(b)(1) and (6). But she has
forfeited those arguments on appeal by failing to develop them. Rollins v.
Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an
argument . . . by failing to adequately brief the argument on appeal.”). She
does not discuss the legal standards for relief under either of those provisions,
only restating that the court sent mail to the wrong address and citing a case
for the proposition that Rule 60(b) holds that “excusable neglect is an
equitable determination considering all relevant circumstances.” But even if
the arguments were not forfeited, the district court did not abuse its
discretion by finding that Clemons-Ali’s neglect was not excusable.
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Rule 60(b)(6) relief is not available when another provision of Rule
60(b) applies. Kemp v. United States, 596 U.S. 528, 533 (2022). Clemons-Ali
argues excusable neglect, which is covered under Rule 60(b)(1), so Rule
60(b)(6) relief is not available. And on these facts, the district court did not
abuse its discretion by not excusing Clemons-Ali’s neglect, so her Rule
60(b)(1) appeal fails too.
Residual Arguments
Clemons-Ali alleges that her right of access to the courts and due
process would be violated if the district court’s decision stands, and that
“[t]o permanently bar this veteran from court on these [technical] grounds
would be a profound miscarriage of justice.” These arguments are not
sufficiently developed and are forfeited. Rollins, 8 F.4th at 397. The same
goes for equitable tolling—which also fails because Clemons-Ali did not
exercise reasonable diligence once she received notice that service of process
still had to be accomplished. According to her own briefing, the letter
prompted her to visit the court—she concedes it put her on notice that
something was amiss on February 18, but she did not contact the court until
March 3.
In any event, no grave injustice is done by our affirming the dismissal
without prejudice of Clemons-Ali’s claims. Clemons-Ali’s claims would
likely not be permanently barred because the statute of limitations for Title I
FMLA claims is “not later than 2 years after the date of the last event
constituting the alleged violation for which the action is brought,”
29 U.S.C. § 2617(c)(1). The court’s dismissal without prejudice allows the
claimant to refile.
The judgment of the district court is AFFIRMED.
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