Unpublished Disposition, 855 F.2d 860 (9th Cir. 1986)

No. 87-1964.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and POOLE, Circuit Judges, and HARRY L. HUPP^* , District Judge.

MEMORANDUM^** 

This was a case brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq, to recover compensation for the value of timber removed improperly from the land of the plaintiff by the United States Forest Service in 1977. In 1984 the landowner, Phyllis Bienick, filed an administrative claim which was denied as time barred.

On February 20, 1986 she filed this FTCA action in district court. The complaint was not served on the government at that time. On the following day her attorney, Mr. Harris, wrote to her that he would no longer represent her and that she should represent herself or retain other counsel.

Eventually, Attorney Hays was retained and he obtained the file from Mr. Harris. The complaint was required to be served within 120 days from the date of filing. Service was not made until 271 days after the complaint was filed.

On the government's motion, the complaint was dismissed without prejudice for failure to serve the government within 120 days of filing as required by Fed. R. Civ. P. 4(j).

We review for abuse of discretion the court's dismissal under Rule 4(j). We find no abuse of discretion and affirm the judgment.

On appeal the appellant argues for the first time that the actions or failure to act by Attorney Harris constitute "egregious circumstances" that excuse her failure to serve the complaint timely. On this record we are unable to find egregious circumstances under our holding in Wei v. Hawaii, 763 F.2d 370 (9th Cir. 1985).

AFFIRMED.