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Johnson v. Bally's Hotel

*fn* submitted: June 8, 1993.

MATT JOHNSON, PLAINTIFF-APPELLANT,
v.
BALLY'S HOTEL, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-90-00582-ECR. Edward C. Reed, Jr., District Judge, Presiding

Before: Canby, Fernandez and T.g. Nelson, Circuit Judges.

MEMORANDUM

Matt Johnson appeals pro se the district court's dismissal of his action under 42 U.S.C. § 1983. Johnson failed to serve the summons and complaint within 120 days after filing as required by Fed. R. Civ. P. 4(j). The district court dismissed the action without prejudice after giving Johnson an opportunity to show good cause for his failure to serve. We affirm.

We review the district court's dismissal under Rule 4(j) for abuse of discretion. Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990). Dismissal without prejudice is mandatory unless the plaintiff has demonstrated "good cause," or excusable neglect, for his failure to serve. Fed. R. Civ. P. 4(j); Boudette v. Barnette, 923 F.2d 754, 755-56 (9th Cir. 1991). The good cause exception applies only in limited circumstances, and inadvertent error or ignorance of governing rules alone will not excuse the failure to serve. Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992).

Johnson concedes he did not serve the complaint within the required 120 days, but contends the district court should have found that he demonstrated good cause for his failure to do so.*fn1 Johnson's contentions below were that: (1) Rule 4(j) refers to 120 working days, not calendar days; and, (2) he was ignorant of the rule.

Johnson's first contention is erroneous. Time limits of 11 days or more prescribed by the Federal Rules of Civil Procedure are counted in calendar days. See Fed. R. Civ. P. 6(a); Tushner v. United States Dist. Court, 829 F.2d 853, 854 (9th Cir. 1987).

Johnson's second contention, his ignorance of the rule, is insufficient to demonstrate good cause. See Hamilton, 981 F.2d at 1065; Townsel v. County of Contra Costa, Cal., 820 F.2d 319, 320 (9th Cir. 1987). Accordingly, the district court did not abuse its discretion in dismissing the action.

AFFIRMED.

Disposition

AFFIRME ...


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