Date: Jul 4, 2026

Rule 41(b) Dismissal Without Prejudice for Violating Service-Compliance Orders—No Heightened Ehrenhaus Review Absent a Developed “Practical With-Prejudice” Showing

I. Introduction

In Bolongia v. Target Corporation (10th Cir. July 1, 2026), pro se plaintiff Tristian D. Bolongia appealed after the U.S. District Court for the Western District of Oklahoma dismissed his employment-discrimination action without prejudice. The dismissal followed Bolongia’s failure to comply with a court order requiring him to provide (1) proof of service for one defendant under Federal Rule of Civil Procedure 4, and (2) certification of service of his operative pleading under Rule 5.

The core issues on appeal were whether dismissal without prejudice was an inappropriate sanction for these service-related failures, whether the dismissal should be treated as effectively with prejudice (triggering more demanding appellate scrutiny), and whether the district court abused its discretion in denying post-judgment relief under Rule 60(b)(1) based on claimed medical deterioration.

II. Summary of the Opinion

The Tenth Circuit affirmed. Applying abuse-of-discretion review, it held:

The district court did not abuse its discretion in dismissing the action without prejudice under Rule 41(b) for failure to comply with the Federal Rules and (critically) a court order.
Bolongia’s argument about Rule 4(m) flexibility and permissive extensions failed because he did not raise it below and did not argue plain error on appeal.
His attempt to obtain heightened review by characterizing the dismissal as effectively with prejudice was waived because he did not identify applicable statutes of limitations or sufficiently develop the argument.
The district court did not abuse its discretion in denying Rule 60(b)(1) relief; it reasonably found no “excusable neglect” under the Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership framework.

III. Analysis

A. Precedents Cited

1. Pro se litigation standards and appellate jurisdiction

Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991): The court reiterated that pro se filings are construed liberally, but courts cannot serve as a litigant’s advocate. This frames the opinion’s tone: procedural rules still apply.
Mobley v. McCormick, 40 F.3d 337 (10th Cir. 1994): The panel relied on Mobley to confirm appellate jurisdiction under 28 U.S.C. § 1291 because the district court dismissed the entire “action” and entered judgment, making it final.

2. District court docket management and Rule 41(b) authority

Proctor & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842 (10th Cir. 2008): Cited for the district court’s “broad discretion to manage their dockets.”
Davis v. Miller, 571 F.3d 1058 (10th Cir. 2009): Supports that a district court may invoke Rule 41(b) dismissal on its own motion.
Drevaleva v. United States Department of Veteran Affairs, 2022 WL 2662081 (10th Cir. July 11, 2022) (unpublished), quoting Lee v. Max Intern., LLC, 638 F.3d 1318 (10th Cir. 2011): Used to emphasize the “wide range of permissible choices” for “expeditious and sound management” of cases.
Gripe v. City of Enid, 312 F.3d 1184 (10th Cir. 2002): Establishes the abuse-of-discretion standard for dismissal as a sanction.
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135 (10th Cir. 2007): Defines when discretion is abused: error of law, clear error of fact, or exceeding permissible choices.

3. The “almost never” rule for Rule 41(b) dismissals without prejudice

Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158 (10th Cir. 2007): The opinion’s centerpiece. It quotes Nasious for the proposition that when dismissal is without prejudice and the plaintiff may try again, the district court ordinarily may dismiss without employing particular procedures.
Sullivan v. Graham, 2025 WL 1983231 (10th Cir. July 17, 2025) (unpublished): Cited for extending Nasious beyond Rule 8 contexts, reinforcing that the lenient approach applies more broadly to non-prejudicial dismissals.

4. Service rules, preservation, waiver, and plain error

Espinoza v. United States, 52 F.3d 838 (10th Cir. 1995): Recognizes that even absent good cause, the district court must consider a permissive extension of time to serve under Rule 4(m). The court acknowledged this principle but found Bolongia forfeited it.
Hand v. Walnut Valley Sailing Club, 475 F. App’x 277 (10th Cir. 2012) (unpublished): Supports refusing to consider arguments not raised in the district court.
Lyons v. Jefferson Bank & Trust, 994 F.2d 716 (10th Cir. 1993), and Richison v. Ernest Group, Inc., 634 F.3d 1123 (10th Cir. 2011): Establish that new appellate arguments are generally not entertained; if they are, the appellant must argue and satisfy plain error. The court deemed Bolongia’s Rule 4(m) extension argument waived because he did not invoke plain error.

5. Pro se litigants must obey rules and orders

Ogden v. San Juan County, 32 F.3d 452 (10th Cir. 1994): Quoted for the central admonition that pro se status does not excuse compliance with procedural rules.
Lundahl v. Halabi, 600 F. App’x 596 (10th Cir. 2014) (unpublished): Supports the proposition that compliance with court orders is mandatory for all litigants.

6. When dismissal “without prejudice” is effectively “with prejudice”

Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992): Provides the multi-factor framework (prejudice, interference with the judicial process, culpability, warning, and efficacy of lesser sanctions) for reviewing dismissals with prejudice.
Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988) (including its citations to Loya v. Desert Sands Unified School District, 721 F.2d 279 (9th Cir. 1983), and Maggette v. Dalsheim, 709 F.2d 800 (2d Cir. 1983)): Reinforces that with-prejudice dismissal is a “weapon of last resort.”
AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233 (10th Cir. 2009) (citing Gocolay v. N.M. Fed. Sav. & Loan Ass’n, 968 F.2d 1017 (10th Cir. 1992)): Establishes that a nominally without-prejudice dismissal can be treated as with-prejudice if limitations have run—but the party must identify the relevant limitations periods and show the practical effect. The panel applied AdvantEdge to hold Bolongia waived the point by failing to develop it.

7. Rule 60(b)(1), excusable neglect, and litigation mistakes

Yapp v. Excel Corp., 186 F.3d 1222 (10th Cir. 1999): Cited for abuse-of-discretion review and for the principle that Rule 60(b) does not rescue parties from the consequences of their deliberate litigation choices.
Cashner v. Freedom Stores, Inc., 98 F.3d 572 (10th Cir. 1996) (quoting Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437 (10th Cir. 1990)): Reinforces that Rule 60(b) relief is “extraordinary” and limited to exceptional circumstances, and that “litigation mistakes” must be of a kind the party could not have protected against.
Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993): Sets the excusable-neglect factors. The panel emphasized that the district court considered them.
United States v. Torres, 372 F.3d 1159 (10th Cir. 2004): Supports giving special weight to the “reason for the delay/fault” factor; the panel used Torres to reject Bolongia’s disagreement with how the district court weighed Pioneer.

B. Legal Reasoning

1. The decisive logic: Rule 41(b) is disjunctive—rules or court order

The opinion’s most practically important move is its insistence on the text of Rule 41(b): dismissal is authorized if the plaintiff fails “to comply with these rules or a court order.” That disjunctive structure meant Bolongia could not avoid dismissal by debating the underlying severity of a Rule 4 or Rule 5 defect; once the district court issued an order to provide proof/certification by a deadline and warned of dismissal, noncompliance with the order itself was sufficient to support Rule 41(b) dismissal.

2. Why the Rule 4(m) “flexibility” point did not help

Bolongia argued on appeal that Rule 4(m) is flexible and that the district court should have considered a permissive extension, invoking Espinoza v. United States. The panel’s response was twofold:

Noncompliance with the court order made the Rule 4(m) debate largely beside the point under Rule 41(b)’s “rules or order” text.
In any event, the argument was forfeited: it was not raised below, and Bolongia did not argue plain error on appeal as required by Richison v. Ernest Group, Inc..

3. Rule 5’s “ministerial” character did not immunize the violation

The panel acknowledged some intuitive force in Bolongia’s claim that Rule 5 certification is “ministerial,” contrasting it with Rule 4’s jurisdictional role and noting Rule 5’s purpose of “smooth administration of justice” (citing the Rule 5(d) advisory notes). But it ultimately treated the issue as one of obedience to court orders: even if a Rule 5 defect standing alone might be viewed as less severe, ignoring an explicit directive to cure the defect—after an express warning—justified dismissal without prejudice.

4. No heightened Ehrenhaus scrutiny without a developed “practical with-prejudice” showing

The panel drew a sharp procedural line: Ehrenhaus scrutiny is associated with with-prejudice dismissal (an “extreme sanction” requiring attention to specific factors). A plaintiff may attempt to trigger that scrutiny by showing that “without prejudice” is effectively “with prejudice” due to limitations (per AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc.), but only if the plaintiff identifies the applicable limitation periods and meaningfully argues the point. Bolongia did neither, so the court treated the dismissal as what it said it was: without prejudice, reviewed under the ordinary, highly deferential standard.

5. Rule 60(b)(1): disagreement with weighting is not abuse of discretion

On post-judgment relief, the panel held the district court permissibly found no “excusable neglect.” Even accepting medical issues, the district court reasoned Bolongia could have mailed a response or sought an extension but chose not to, effectively “betting” he would improve. The panel emphasized:

Under United States v. Torres, district courts may weigh the “fault” factor heavily.
Under Cashner v. Freedom Stores, Inc. and Yapp v. Excel Corp., Rule 60(b)(1) does not generally cover deliberate litigation choices or failures to act that were protectable by ordinary diligence.

C. Impact

Service-compliance orders carry independent force. The decision underscores that once a district court issues a concrete service-related directive with a deadline and warning, failure to comply can justify Rule 41(b) dismissal regardless of debates about the underlying defect’s gravity.
Appellate strategy: preserve, or lose. Parties seeking relief under Rule 4(m) (e.g., permissive extension) must raise it in the district court; otherwise, they must confront forfeiture and argue plain error on appeal.
“Practical with-prejudice” is not presumed. Litigants attempting to obtain Ehrenhaus-style review must do the work of identifying limitation periods and explaining how dismissal without prejudice forecloses refiling.
Rule 60(b)(1) remains narrow. The opinion reinforces that “excusable neglect” is not a vehicle to undo a conscious choice not to act before a deadline, even when personal hardship is asserted.
Pro se litigants receive liberal construction, not procedural immunity. Consistent with Ogden v. San Juan County, pro se status does not relax compliance duties.

IV. Complex Concepts Simplified

Rule 4 (service of summons and complaint) and proof of service: Rule 4 governs how defendants are formally notified. “Proof of service” is the filed documentation showing service occurred. Without proper service, a court may lack authority to proceed against an unserved defendant.
Rule 5 (service of later papers) and certificate of service: After the complaint, most filings must be served on other parties. A “certificate of service” is the filer’s statement specifying when and how documents were served. It supports orderly litigation and prevents surprise.
Rule 41(b) dismissal: Allows dismissal if a plaintiff fails to prosecute or to comply with the Federal Rules or a court order. Dismissal “without prejudice” generally permits refiling; “with prejudice” generally ends the case permanently.
“Without prejudice” vs. “practically with prejudice”: Even if labeled “without prejudice,” a dismissal can be effectively final if the statute of limitations has run. But the party claiming that effect must identify the relevant limitation periods and show that refiling is barred.
Excusable neglect (Rule 60(b)(1)) and the Pioneer factors: Courts consider factors such as prejudice, length of delay, reason for delay (fault), and good faith. The “reason/fault” factor often carries special weight in the Tenth Circuit, and deliberate inaction is typically not “excusable.”
Waiver/forfeiture and plain error on appeal: Arguments not raised in the district court are usually not considered on appeal. If considered, an appellant often must satisfy the demanding “plain error” standard—failure to even argue it can result in waiver.

V. Conclusion

Bolongia v. Target Corporation reinforces a practical procedural rule in Tenth Circuit practice: a Rule 41(b) dismissal without prejudice for failing to comply with a clear service-compliance court order—especially after an explicit warning and an opportunity to cure—will rarely be reversible on abuse-of-discretion review. The decision also serves as a cautionary guide on preservation of arguments (including Rule 4(m) extensions), on the need to substantiate any claim that “without prejudice” is effectively “with prejudice,” and on the narrow reach of Rule 60(b)(1) “excusable neglect” where the record supports a finding of avoidable, deliberate inaction.