FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 1, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JANICE MARTIN,
Plaintiff-Appellant,
v. No. 16-5146
(D.C. No. 4:15-CV-00366-JED-PJC)
CITY OF TULSA; CHUCK (N.D. Okla.)
JORDAN; CPL FRANCETIC; JOHN
DOE,
Defendant-Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
When Ms. Martin sued, the federal rules of civil procedure required
her to serve the defendants within 120 days of service. See Fed. R. Civ. P.
*
Oral argument would not be helpful in this appeal. As a result, we
are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
4(m) (2015). 1 The plaintiff didn’t. So, over thirteen months after Ms.
Martin sued, the district court dismissed the action without prejudice for
failure to timely serve the defendants.
The plaintiff appeals, arguing that her underlying claim is valid. It
may be, but the district court could not grant relief in the absence of
service of process.
When 120 days elapsed from the filing of the complaint, the federal
rules required the district court to either order dismissal without prejudice
or order service within a specific-time-period. See Fed. R. Civ. P. 4(m)
(2015). The district court complied, ordering service by July 22, 2016, and
warning that failure to comply would result in dismissal without prejudice.
Ms. Martin failed to take any action by July 22, 2016. So, over one month
after the court’s deadline expired, the district court did what it had warned,
dismissing the action without prejudice. This dismissal reflected a proper
exercise of authority under the federal rules of civil procedure. Thus, we
affirm.
Entered for the Court
Robert E. Bacharach
Circuit Judge
1
Roughly five months after Ms. Martin filed the complaint, the service
deadline was shortened to 90 days. See Fed. R. Civ. P. 4(m) (eff. Dec. 1,
2015)
2