Unpublished Disposition, 880 F.2d 416 (9th Cir. 1987)

MEMORANDUM^* 

This personal injury case arises out of an accident which occurred in North Africa near Gialo, Libya, on or about July 28, 1984. Bishop was riding with Fouracres, a British engineer employed by Oasis Oil Company ("Oasis"), in an Oasis-owned jeep when it hit a soft spot resulting in injuries to Bishop, an Arizona resident.

Bishop's attorney, Tandy, filed this complaint on July 25, 1986, three days before the original statute of limitations would have run under Arizona law. On August 29, 1986, Tandy's request for an extension of time in which to locate and serve defendants was granted in an order which required Tandy to cure the jurisdictional defects in the complaint within sixty days "or the case shall be dismissed." Bishop was granted a further extension on October 31, 1986.

Thereafter, Tandy withdrew as counsel and new counsel requested another time extension to prepare an amended complaint and to serve the defendants. On March 10, 1987, Judge Browning filed a minute order setting a March 30 hearing (later reset to June 1) for Bishop to "show cause why this case should not be dismissed for failure to serve any defendant within the extensions granted by th [e] Court." On March 31, Bishop filed with the district court Clerk evidence of service against Oasis. On May 29th, Bishop moved for a default judgment against Oasis pursuant to Fed. R. Civ. P. 55(a) which was granted by the Clerk on June 1. On the same date, Judge Browning vacated the June 1 hearing and set June 8 as the date for Bishop to show cause why the complaint should not be dismissed as to Fouracres and set July 1 as the date by which Bishop "shall file a brief showing why the service he has effected on the corporate defendant is valid." On June 16, Judge Browning granted Bishop another thirty days to serve Fouracres and granted Oasis' motion to vacate the default judgment. The record discloses that the brief due by July 1 was never filed.

On July 31, 1987, no proof of service on Fouracres having been received, Judge Browning dismissed Bishop's complaint for "failure to serve the defendants within the limits of Fed. R. Civ. P. 4(j) and of court authorized extensions to the time limits thereof." Bishop filed a motion for reconsideration. Attached to that motion was an exhibit purporting to show that Fouracres was served on July 25, 1987. Also attached to that motion was a "Receipt For Certified Mail" signed by Robert Kreighbaum of the Department of State of the State of Delaware and dated June 25, 1987 suggesting service on Oasis as of that date. The motion for reconsideration was denied. Bishop timely appeals. Appellees have made no appearances in this court.

* The district court's order dismissing an action for lack of prosecution is reviewed for an abuse of discretion. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985).

The factors to be weighed in determining whether or not the district court has abused its discretion are (1) the plaintiff's diligence; (2) the trial court's needs to manage its docket; (3) the danger of prejudice to the party suffering the delay; (4) the availability of alternative sanctions; and (5) the existence of warning to the party occasioning the delay. Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 499 (9th Cir. 1987). Warnings by a district court that dismissal will result from failure to comply with its orders are a sufficient consideration of alternative sanctions to support dismissal. Greco v. Stubenberg, 859 F.2d 1401, 1404 (9th Cir. 1988).

Judge Browning provided warnings on May 10 and June 1, 1987, that failure to serve Fouracres would result in dismissal of claims against him. Bishop failed to effect service of process upon Fouracres within the extensions provided by the district court. Despite opportunities to do so, Bishop failed to request further extensions. Since Bishop cannot establish any factor under Hamilton which weighs against the district judge's dismissal of Fouracres, we hold that dismissal of the complaint as to Fouracres did not constitute an abuse of discretion.

II

Bishop further claims that service upon Oasis was proper and that dismissal was inappropriate. At oral argument in this court, Bishop's attorney claimed that the evidence of service on Oasis filed on March 31 constituted valid service of process. Had such service been valid, Bishop nevertheless failed to comply with the court's request to brief the validity of such service by July 1.

The record also contains the June 25 "Receipt for Certified Mail" signed by the Department of State of the State of New Jersey. Bishop claims that this evidences valid service of process on Oasis. Even if it were valid, it occurred beyond the time, as extended, within which service was to be made. Bishop failed to brief the validity of the March service, contrary to court order, and failed to ask for a further extension.

In any event, the certified mail receipt is, at best, dubious evidence of service. There is simply no valid explanation why the June 25 receipt was not disclosed to the court before August 13, in face of specific orders to justify validity of service, especially since proof of the March 25 purported service was filed within six days.

III

In light of the record before us, we cannot conclude that Judge Browning's rulings constituted an abuse of discretion.

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

Ted Bishop was seriously injured in a jeep accident in Libya. He was confronted with the daunting task of trying to effect service of process on a defunct Delaware corporation that had abandoned its Delaware corporate charter and reincorporated in Great Britain and on an English resident whose address was unknown. He sought to serve process on the then-defunct Oasis Oil entity through the Delaware Secretary of State, as authorized by Delaware law, but the Secretary of State apparently did not comply, at least initially, with its statutory mandate and Oasis Oil was not properly served.¹  However, on June 25, 1987, six weeks before the July 31, 1987 hearing at which Bishop's complaint as dismissed, Bishop again filed with the Delaware Secretary of State to have Oasis served.

Meanwhile, Bishop had discovered the whereabouts of David Fouracres and had hired a company specializing in international service of process to effect service on him. Apparently, Fouracres was served before the July 31 hearing, but return of service from England was delayed. The district court was informed of this by letter before the hearing.

Thus, Bishop had apparently served both of the hard-to-locate defendants in this case before the district court dismissed his complaint for failure to effect service. The court was indisputably informed that service had been accomplished before it denied Bishop's motion for reconsideration. Accordingly, I cannot agree with the majority that the district court did not abuse its discretion in dismissing the complaint.

It may be true, as the majority points out, that Bishop's attorney should have been more diligent in keeping the district court informed of the status of the efforts being made to complete service of process and, indeed, of the ultimate success of the venture. Perhaps some sort of sanction against the attorney for his failure to do so might have been appropriate. It is also true that the district judge at times exhibited considerable forbearance. But this does not change the fact that service was completed before the district court adopted the ultimate sanction and dismissed Bishop's complaint. Under the circumstances of this case, I do not believe Bishop should be compelled to forfeit his right to sue the alleged tortfeasors. I would hold that the district court abused its discretion in dismissing Bishop's complaint. Accordingly, I dissent.