Unpublished Disposition, 914 F.2d 263 (9th Cir. 1988)

MEMORANDUM^** 

Mel M. Marinkovic appeals pro se the district court's order dismissing his action without prejudice for failure to serve defendants with a copy of the summons and complaint within 120 days of filing pursuant to Rule 4(j) of the Federal Rules of Civil Procedure. Marinkovic contends that the district court erred in dismissing his complaint because he had "good cause" for failing to serve the complaint within the 120-day limit. We review the district court's dismissal under Rule 4(j) for an abuse of discretion. See Hart v. United States, 817 F.2d 78, 80 (9th Cir. 1987). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

On January 5, 1988, Marinkovic filed an action against defendants Casey, Gerry, Casey, et al., the attorneys who initially handled his suit for personal injury. Marinkovic alleged various malpractice and breach of contract claims arising from defendants' presumed mishandling of his personal injury suit. On July 11, 1988, nearly seven months after Marinkovic filed his action against defendants, the district court dismissed the action for failure to serve defendants within 120 days of filing pursuant to Fed. R. Civ. P. 4(j).

Rule 4(j) provides that an action against a defendant shall be dismissed without prejudice if that defendant is not served with a copy of the summons and complaint within 120 days of filing the complaint unless the plaintiff can show good cause why service was not made within that time. Fed. R. Civ. P. 4(j). Neither Rule 4(j) nor its legislative history define "good cause." The only example of good cause is the obvious one of a defendant's evasion of service. Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir. 1985).

Marinkovic states that at the time he filed his action against defendants he was unable to substantiate his claims. He argues that he did not serve defendants in order to avoid the possibility of dismissal and Rule 11 sanctions. He argues that he could not amend his complaint to substantiate his claims against defendants without the facts in his litigation file. He claims that another attorney, not associated with defendants, refused to return this file before the 120-day period ran.

He appears to argue that his inability to obtain his file prevented him from amending his complaint in order to substantiate his claims prior to service. He contends that the district court therefore abused its discretion in dismissing his action under Rule 4(j). This contention lacks merit.

Marinkovic made no attempt to serve any of the defendants within the 120-day period prescribed by Rule 4(j); nor did he seek an extension of time in which to serve. Moreover, this court has interpreted "good cause" to exclude the desire to amend a complaint before service. See Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987) (citation omitted). Thus, Marinkovic's arguments are meritless, and the district court did not abuse its discretion in dismissing Marinkovic's action pursuant to Rule 4(j). See id.; Fed. R. Civ. P. 4(j).

AFFIRMED.