Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 869 F.2d 1497 (9th Cir. 1989)

William HENRY and Cynthia Henry, husband and wife,Plaintiffs-Appellants,v.CITY OF OAKVILLE, a Municipal Corporation, et al.,Defendants-Appellees.

No. 87-3791.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 17, 1988.Decided March 3, 1989.

Before SKOPIL, SCHROEDER, and ALARCON, Circuit Judges.


William Henry (Henry) appeals the district court's dismissal without prejudice of his 42 U.S.C. § 1983 action for failure to serve a summons within 120 days of filing his complaint as required by Fed. R. Civ. P. 4(j). Henry alleges that the district court erred in dismissing his action because (1) he demonstrated "good cause" for an extension of the time permitted to effect service of process on the grounds that he was pro se when he filed his complaint and that there is an inconsistency between the local district court rules and the federal rules of civil procedure regarding service of process; and (2) the defendants waived any objections to Henry's failure to serve the summons due to their failure to either answer the complaint or to file a Rule 12(b) (4) motion within 20 days of the filing of the complaint. The judgment is affirmed.

Henry failed to serve a summons within 120 days of filing the complaint. Fed. R. Civ. P. 4(j) requires dismissal of an action without prejudice if the plaintiff does not serve the defendant a summons and complaint within 120 days after filing of the complaint, unless the plaintiff can show good cause why service was not made within the 120 day period. Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987). Ignorance of the court rules does not constitute good cause for failure to make timely service. Id. Nor does Henry's pro se status relieve him of the obligation to follow the court rules. See Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987). Further, there is no inconsistency between the local and federal rules because district courts, pursuant to Fed. R. Civ. P. 83, may formulate local rules which add prerequisites to the clerk's issuance of summonses. See 4A C. Wright & A. Miller, Federal Practice and Procedure Sec. 1086 at 23 (2d ed. 1987). Therefore, Henry did not show "good cause" why the summons was not served within 120 days after filing the complaint.

By not serving a summons Henry failed to complete service of process and thus did not trigger the 20 day time limit found in Fed. R. Civ. P. 12(a). See Worrell v. B.F. Goodrich Co., 845 F.2d 840, 841-42 (9th Cir. 1988) (20 day response period provided by Rule 12(a) does not commence until service of process is complete). Further, defendants did not waive their defense of insufficiency of process by failing to file their motion within 20 days of Henry's filing of the complaint. See Bechtel v. Liberty National Bank, 534 F.2d 1335, 1340-41 (9th Cir. 1976) (Rule 12(b) (3) motion to dismiss for improper venue may be made at any time prior to a responsive pleading).