Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1990)

MEMORANDUM^** 

Eva Josselyn appeals, pro se, the district court's order dismissing her complaint without prejudice. She also appeals the court's denial of her ex parte application to reopen. We affirm.

Josselyn filed a claim under the Federal Tort Claims Act against Travis Air Force Base Hospital and various Doe defendants alleging malpractice and defamation. Josselyn failed to serve the U.S. Attorney and U.S. Attorney General within 120 days as required under Fed. R. Civ. P. 4(d) (4). On January 5, 1990, the district court issued an Order to Show Cause why the action should not be dismissed. In an order dated January 19, 1990, the district court dismissed the action without prejudice.

On March 15, 1990 Josselyn filed an ex parte application for an order to reopen her case under the district court's Local Rule 7.18. The application states that Josselyn did not understand the service requirements of Rule 4. The district court denied the application without comment the same day.

Dismissal of an action without prejudice is appealable under 28 U.S.C. § 1291. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985). Dismissal under Rule 4(j) is reviewed for abuse of discretion. Puett v. Blandford, 895 F.2d 630, 633 (9th Cir. 1990). There is no evidence that the defendants waived their objection to service of process. See Benny v. Pipes, 799 F.2d 489, (9th Cir. 1986) (objection to service of process can be waived), amended, 807 F.2d 1514, cert. denied, 484 U.S. 870 (1987). Josselyn was not proceeding in forma pauperis; she was not relying on the U.S. Marshal's Service to effect service of process. See Blandford, 895 F.2d at 633-37. The district court properly dismissed the action for failure to effect proper service.

The denial of the ex parte application was proper. Josselyn failed to respond to the Order to Show Cause. Moreover, her only showing of good cause for failure to serve was her asserted lack of knowledge of the rules of procedure. In Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985), we held that the good cause requirement was not satisfied by a showing of inadvertence by counsel. In Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987), we held that allowing ignorance of Rule 4(j) to constitute good cause for untimely service would allow the good cause exception to swallow the rule. We agree with the Fifth Circuit that the same rule must apply to pro se plaintiffs. See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (ignorance does not exempt pro se party from compliance with requirements of Rule 4); see also Boudette v. Barnette, No. 89-16716, slip op. at 589 (9th Cir. 1991) (in forma pauperis plaintiff's reliance on U.S. Marshal's Service to effect service of process does not constitute "good cause" if plaintiff fails to request service as required by Fed. R. Civ. P. 4(c) (2) (B) (i)).

AFFIRMED.