FILED
NOT FOR PUBLICATION
DEC 07 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFERSON BUNING, No. 16-16198
Plaintiff-Appellant, D.C. No.
2:15-cv-01176-APG-VCF
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted December 5, 2017**
San Francisco, California
Before: GRABER and N.R. SMITH, Circuit Judges, and ROSENTHAL,*** Chief
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
Buning appeals the dismissal of his action for failure to timely effect service
of process, as required by Federal Rule of Civil Procedure 4(i), (m). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in dismissing the action,
because Buning failed to timely serve the United States attorney for the District of
Nevada. See Fed. R. of Civ. P. 4(i)(1)(A)(i), (m). Buning did not establish good
cause or excusable neglect for his failure to perfect service of process as required.
See Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009).
Buning argues either that (1) he was excused for service of process under
Rule 4 because 8 C.F.R. § 336.9(b) controlled or, even if it did not, (2) he
established good cause for failing to comply with Rule 4, because § 336.9(b)
created ambiguity with regard to service of process. Neither argument is
persuasive.
First, to the extent that Buning has not waived these arguments, because he
failed to provide “any analysis to assist the court in evaluating [his] legal
challenge,” see Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929-30 (9th
Cir. 2003), there is no conflict between Rule 4 and 8 C.F.R. § 336.9(b). Section
336.9(b) merely informs the applicant which agencies must be served under Rule
4(i)(1)(C). Second, even if there were an ambiguity, Buning was aware of the
2
requirements of Rule 4 when he moved under Rule 4(m) for additional time to
serve the Secretary of the Department of Homeland Security. See Whale v. United
States, 792 F.2d 951, 953 (9th Cir. 1986) (“We know of no cases in which
counsel’s failure to read Rule 4 and counsel’s resulting ‘assumption’ that mail
service was valid were held to constitute ‘good cause’ or ‘justifiable excuse.’”).
Moreover, Buning still failed to effect service in the additional time granted by the
district court. Accordingly, we cannot find good cause or excusable neglect. 1
AFFIRMED.
1
Because we affirm the district court’s dismissal under Rule 4(m), we need
not address Buning’s additional arguments on appeal.
3