Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1989)Annotate this Case
Emily Fuller GIBSON, Michelle Gibson and Melanie Gibson,Plaintiffs-Appellants,v.The UNITED STATES of America, Will Heaton, Special Agent,Federal Bureau of Investigation, Brandon Cleary, SpecialAgent, Federal Bureau of Investigation, Darthard Perry,a/k/a Ed Riggs, the City of Los Angeles, Unknown Agents ofthe United States, Unknown Agents of the City of LosAngeles, Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 9, 1989.Decided Sept. 1, 1989.
Before HUG, CYNTHIA HOLCOMB HALL and WIGGINS, Circuit Judges.
The district court dismissed the Gibsons' complaint under Fed. R. Civ. P. 4(j), which requires timely service of process. On appeal, the Gibsons claim two errors: (1) the district court improperly failed to provide proper notice prior to dismissal; and (2) the district court incorrectly concluded that they lacked good cause for failing to timely serve.
We have jurisdiction under 28 U.S.C. § 1291. Since we find no abuse of discretion, Whale v. United States, 792 F.2d 951, 952-53 (9th Cir. 1986), we affirm the district court's dismissal of the Gibsons' complaint.
The Gibsons correctly state the principle that, before ordering dismissal under Rule 4(j), they were entitled to notice. See United States for Use and Benefit of DeLoss v. Kenner Gen. Contractors, Inc., 764 F.2d 707, 710 (9th Cir. 1985). In fact, however, they did receive sufficient notice. The district court gave the Gibsons notice of a hearing to file and spread the mandate of this court's decision in Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986). In Gibson, 781 F.2d at 1341 n. 2, the Gibsons were forewarned of the possibility that their action would be dismissed under Rule 4(j). The Gibsons cite no authority that casts any doubt upon the quality of the notice they received; nor do we perceive any.
The Gibsons next fault the district court for failing to find good cause for their delay in serving process. Specifically, they attribute their failure to timely serve process to the following: (1) the district court had not yet ruled on the sufficiency of their complaint; and (2) their "second amended complaint alleges a number of actions which were not even committed until after the present litigation's commencement." Appellant's Opening Brief at 12.
Under the terms of Rule 4(j), the Gibsons bear the burden of establishing good cause. However, they have failed to provide us with the necessary record to review the merits of this contention; we are without the aid of the transcript of the district court's hearing on spreading the mandate. Under Fed. R. App. P. 10(b), the Gibsons are obligated to present us with the relevant parts of the record. Their failure to obey the commands of this rule is fatal. See L & E Co. v. United States ex rel. Kaiser Gypsum Co., 351 F.2d 880, 883 (9th Cir. 1965). Equally fatal is the Gibsons' failure to provide authority to support the merits of their good-cause arguments.
Finally, in oral argument, the Gibsons for the first time raised the issue whether the district court's earlier dismissals of their complaint with leave to amend served to toll the 120-day period prescribed in Rule 4(j). Appellants are obliged to raise and support their arguments in their briefs, prior to oral argument. See Thompson v. Commissioner of Internal Revenue, 631 F.2d 642, 649 (9th Cir. 1980) (waiver of issue raised for the first time in reply brief), cert. denied, 452 U.S. 961 (1981). Since the Gibsons have failed to preserve this issue by raising it in a timely manner, we decline to address it.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3