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Carter v. Certified Grocers of California Ltd.

*fn* submitted pasadena california: March 4, 1993.

WILFRED CARTER, PLAINTIFF-APPELLANT,
v.
CERTIFIED GROCERS OF CALIFORNIA LTD.; ABE ABRAHAMIAN; GEORGE WHITMAN; CLAY DEVILLIER, DEFENDANTS-APPELLEES, WILFRED CARTER, PLAINTIFF-APPELLEE, V. CERTIFIED GROCERS OF CALIFORNIA, LTD., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. DC NO. CV-90-3981-WDK. William D. Keller, District Judge, Presiding

Before: D.w. Nelson, Wiggins, and Leavy, Circuit Judges.

MEMORANDUM

Wilfred Carter appeals pro se the district court's dismissal of his case pursuant to Fed. R. Civ. P. Rule 4(j). Certified Grocers of California, Ltd. cross-appeals the district court's denial of Rule 11 sanctions. We affirm the district court on both accounts.

I. BACKGROUND

Carter filed his complaint in the district court on July 27, 1990, claiming employment discrimination. He attempted to serve Certified Grocers soon thereafter.*fn1 In September, 1990, Carter requested and received entry of default against Certified Grocers. Certified Grocers moved to set aside the default, claiming the summons and complaint had not been properly served. On November 26, 1990, the district court granted Certified Grocers' motion.

Two and a half months later, Certified Grocers again asserted that it had not been properly served -- this time as part of a motion to dismiss pursuant to Fed. R. Civ. P. Rule 4(j), which requires that the summons and complaint be served within 120 days of filing. Carter never filed an opposition to this motion. On April 30, 1991, the district court granted the motion and the case was dismissed. Carter timely appealed to this court.

II. SERVICE ON CERTIFIED GROCERS

We review the district court's factual determinations for clear error. In re San Vicente Medical Partners Ltd., 962 F.2d 1402, 1405 (9th Cir.), cert. denied, 113 S. Ct. 210 (1992). In its November 26, 1990 order setting aside the default, the district court found that the attempted service by mail was defective because the required acknowledgement forms were missing, and that no other means of service had been attempted. Although there was conflicting evidence before the district court, we cannot say this factual determination was clearly erroneous.

III. CARTER'S APPEAL

As a preliminary matter, the decision to set aside the default is not properly before this court.*fn2 However, we note that relief from entry of default was proper because of inadequate service of the summons and complaint.

We turn now to the dismissal of Carter's case. Dismissal under Rule 4(j) is reviewed for abuse of discretion. West Coast Theater Corp. v. Portland, 897 F.2d 1519, 1528 (9th Cir. 1990). Carter filed no opposition to Certified Grocer's motion to dismiss. In light of his failure to oppose, the district court deemed Carter to have consented to the motion, as permitted by the Local Rules.*fn3 We cannot say the district court abused its discretion in granting Certified Grocers' unopposed motion.

Even if the district court's "deeming" of Carter's consent were improper, we would nevertheless have to affirm. When proper service is not made within 120 days, Rule 4(j) requires dismissal without prejudice unless the plaintiff shows good cause for the failure to serve. Fed. R. Civ. P. Rule 4(j); Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). In response to the motion to dismiss, Carter did not establish good cause for the failure to serve; in fact, he filed no opposition at all. Furthermore, Carter never attempted to perfect service after the issue was first raised, although he had more than two months in which to do so.*fn4 Since Carter did not show good cause for his failure to serve Certified Grocers within 120 days, dismissal under Rule 4(j) was appropriate.

IV. CERTIFIED GROCERS' CROSS-APPEAL

Certified Grocers cross-appeals the district court's denial of Rule 11 sanctions. We review the district court's decisions regarding Rule 11 sanctions for abuse of discretion. Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405 (1990). In denying sanctions in this case, the district court did ...


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