Unpublished Disposition, 868 F.2d 1273 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 868 F.2d 1273 (9th Cir. 1989)

Amit S. RAI, Plaintiff-Appellant,v.Todd Evan FLIGNER and Gilbert Fligner, Defendants-Appellees.

No. 88-5659.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 16, 1988.* Decided Feb. 10, 1989.

Before MERRILL, REINHARDT, and CYNTHIA HOLCOMB HALL, Circuit Judges.

MEMORANDUM** 

Rai appeals the district court's denial of his motion for reconsideration of its order dismissing Rai's personal injury diversity action against Todd Evan Fligner and Gilbert Fligner for lack of prosecution. The dismissal order was entered after only 87 days had passed from the commencement of suit. Federal rules allow dismissal by the district court only after 120 days have passed.1  Accordingly, the district court abused its discretion in denying Rai's motion for reconsideration.

We reverse and remand to the district court with instructions to set aside the dismissal order, to reinstate the civil action as to both defendants, and to grant him 35 days from the time of the district court's order reinstating the action within which to effect service of summons upon either defendant if not yet served or move for an extension under Rule 6(b).

REVERSED and REMANDED.


 *

The panel finds this case appropriate for submission without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Federal Rule of Civil Procedure 4(j) provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.