Unpublished Disposition, 881 F.2d 1083 (9th Cir. 1987)

MEMORANDUM

Louis Chapman, dba Chapman's Auto Wrecking, and Jeffrey Chapman (the Chapmans), appeal the district court's order reinstating the dismissal of their case against Freeway Truck Parts, Inc. (Freeway). The Chapmans contend that the district court erred in dismissing their case for want of good cause for their failure to effect service within 120 days pursuant to Fed. R. Civ. P. 4(j) because: (1) the Chapmans' attorney was unfamiliar with Rule 4(j) and inadvertently calendared the summons beyond the 120 day limit; and (2) the Chapmans' attorney believed that this case would be settled through litigation in another forum. Freeway requests sanctions against the Chapmans for filing this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

On June 17, 1985, the Chapmans filed this action for damages and personal injuries against Freeway in a Nevada district court. On November 12, 1985, the district court filed a notice of its intention to dismiss the Chapmans' action for failure to serve Freeway pursuant to Fed. R. Civ. P. 4(j). On November 20, 1985, the Chapmans served Freeway with a summons and complaint.

On December 4, 1985, the district court dismissed without prejudice the Chapmans' action against Freeway for failure to serve timely. On April 11, 1986, the Chapmans filed an application to vacate or modify the district court's order of dismissal. Freeway did not file an opposition and the district court granted this application and reinstated the Chapmans' action against Freeway.

On June 12, 1986, Freeway filed a motion to vacate the court's order reinstating the Chapmans' complaint, in which Freeway alleged that the Chapmans had failed to serve Freeway with a copy of their application to vacate the district court's December 4, 1985, order. The district court granted Freeway's motion and vacated its order vacating its December 4, 1985, dismissal order. The district court further ordered Freeway to respond to the Chapmans' application to vacate the court's December 4, 1985, dismissal order. On November 3, 1986, Freeway filed an opposition to the Chapmans' application to vacate or modify the December 4, 1985, dismissal order and also requested sanctions against the Chapmans.

On March 25, 1987, the district court denied the Chapmans' request to vacate or modify the court's dismissal order and granted Freeway's request for sanctions against the Chapmans for filing a frivolous action. On April 14, 1987, the Chapmans filed a motion for reconsideration, which the court denied. The Chapmans timely appealed from that order.

A motion for reconsideration filed more than 10 days after a district court's judgment can be construed as a Fed. R. Civ. P. Rule 60(b) motion. Fiester v. Turner, 783 F.2d 1474, 1476 (9th Cir. 1986). Such motions are reviewable only for abuse of discretion in denying the motion for reconsideration, and not for error in the underlying judgment. Id. Rule 60(b) states that upon a motion, the court may relieve a party from a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud or other misconduct; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) any other reason justifying relief from operation of the judgment. Fed. R. Civ. P. 60(b).

The Chapmans filed their motion for reconsideration more than 10 days after the district court's judgment. We therefore construe this as a Rule 60(b) motion for reconsideration. See Fiester, 783 F.2d at 1476. Nevertheless, the Chapmans appear to argue the underlying merits of the case by contending that the trial court erred in dismissing the case. The Chapmans contend that the district court erred in determining that the Chapmans did not show good cause for failing to timely effect service of the complaint and summons. The Chapmans assert that they showed good cause for the delay because their attorney was unfamiliar with the Federal Rules of Civil Procedure and wanted to delay service to obtain a settlement through litigation in another forum. To the extent this argument is an effort to show mistake, inadvertence, surprise or excusable neglect, we can review the issue.

Fed. R. Civ. P. Rule 4(j) provides that an action against a defendant shall be dismissed without prejudice if that defendant is not served with a copy of the summons and complaint within 120 days after the filing of the complaint, unless that plaintiff can show good cause why service was not made within the 120 day period. See Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987). " 'The good cause standard applies after 120 days has expired regardless whether the service issue is raised by a defendant on a motion to dismiss under Rule 4(j), is raised by the judge on his own initiate pursuant to that rule, or is raised by the plaintiff on a motion under Rule 6(b) (2).' " Id., quoting United States ex rel. DeLoss v. Kenner General Contractors, Inc., 764 F.2d 707, 711 (9th Cir. 1985). Counsel's ignorance of the requirements of the law do not establish good cause for the failure to comply with Rule 4(j). Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987); Townsel, 820 F.2d at 320. In addition, intentional delay of service is less excusable than inadvertence, and does not constitute good cause. Fimbres, 833 F.2d at 139.

Here, the district court correctly concluded that the Chapmans' counsel's miscalculation and ignorance of Fed. R. Civ. P. 4(j), which resulted in his failure to serve the complaint and summons within Rule 4(j)'s 120 day limit, did not constitute good cause. See id. The district court also correctly concluded that the Chapmans' plan to serve the summons after Rule 4(j)'s 120 day period in order to allow the Chapmans to obtain a settlement through litigation in another forum did not establish good cause. See id. (intentional delay of service does not constitute good cause); see also Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (counsel's desire to amend a complaint before effecting service does not constitute good cause for delay). For the same reasons, the Chapmans have not demonstrated mistake, inadvertence, surprise or excusable neglect under Rule 60(b). Accordingly, the district court did not abuse its discretion in denying Chapmans' Rule 60(b) motion. See Whale v. United States, 792 F.2d 951, 953 (9th Cir. 1986).

Freeway requests that attorneys' fees amd costs be imposed against both the Chapmans and their attorney (i.e., joint liability). We agree. It is in our discretion to sanction both the party and the attorney. Fed. R. App. P. 39(a) provides that "costs shall be taxes against the appellant unless otherwise agreed by the parties or ordered by the court." The Chapmans' appeal is frivolous and we therefore award attorneys' fees and double costs against the Chapmans and their attorney pursuant to Fed. R. App. P. 38 and 39. The attorneys' fees will be set by the district court after our mandate issues.

AFFIRMED.