FILED
NOT FOR PUBLICATION NOV 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAURICE PATRICK, No. 10-35386
Plaintiff - Appellant, D.C. No. 2:08-cv-00297-LRS
v.
MEMORANDUM *
SAXON MORTGAGE, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Submitted October 25, 2011 **
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Maurice Patrick appeals pro se from the district court’s order denying his
motion for default judgment, and its judgment dismissing his diversity action for
failure to serve the summons and complaint in a timely manner. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Oyama
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
v. Sheehan (In re Sheehan), 253 F.3d 507, 511 (9th Cir. 2001) (dismissal for failure
to serve summons and complaint in a timely manner); Eitel v. McCool, 782 F.2d
1470, 1471 (9th Cir. 1986) (denial of default judgment). We affirm.
The district court did not abuse its discretion by denying Patrick’s motion
for default judgment because Patrick never properly served the summons and
complaint on defendant. See Direct Mail Specialists, Inc. v. Eclat Computerized
Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (“A federal court does not have
jurisdiction over a defendant unless the defendant has been served properly under
Fed. R. Civ. P. 4.”).
The district court did not abuse its discretion by dismissing the action
without prejudice because Patrick failed to establish good cause for his failure to
serve properly the summons and complaint or other grounds warranting an
extension of time to execute service. See Fed. R. Civ. P. 4(m) (requiring service
within 120 days after the complaint is filed); In re Sheehan, 253 F.3d at 512-13
(discussing good cause and the district court’s broad discretion to extend time for
service or to dismiss the action without prejudice); see also Ash v. Cvetkov, 739
F.2d 493, 495-97 (9th Cir. 1984) (listing factors to consider before dismissing an
action for lack of prosecution, and explaining that “dismissal without prejudice is a
more easily justified sanction for failure to prosecute”).
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Patrick’s remaining contentions are unpersuasive.
Patrick’s “Motion for Clarification of Status,” entered on August 23, 2010,
is denied as moot.
AFFIRMED.
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