Benjamin CUNNINGHAM, Plaintiff-Appellant, v. John DOES, Defendant, United States Marshals Service, Timothy J. O'callaghan, Dusm Thomas Ballard, NYPD Detective Mary Halpin, Dusm Sean McCluskey, Dusm Manny Puri, Dusm Nicholas Ricigliano, Dusm Jerry Sanseverino, Defendants-Appellees, 321 F. App'x 92

SUMMARY ORDER This is an appeal by the Plaintiff from the judgment of the United States District Court for the Southern District of New York (Batts, J.) dismissing the complaint with prejudice. The district court dismissed the complaint with prejudice by reason of the court’s finding that Plaintiffs counsel had failed to perfect service of process on the Defendants.

While the appeal was pending, this Court received a written communication from the district court advising that the district court was not aware of all the pertinent facts when it dismissed the complaint and that “the Court agrees” with Plaintiff that “the Court was in error in dismissing this case with prejudice.” The district court suggested that this Court vacate the district court’s order of dismissal of July 18, 2007 and reinstate the case on the district court’s docket. We have considered the arguments of Plaintiff and Defendants and agree that it was error to dismiss the case with prejudice. See Dodson v.

Runyon, 86 F.3d 37 (2d Cir.1996). Accordingly, the judgment of the district court is VACATED and the ease is REMANDED for further proceedings.