Court Description: Civil case - torts. District court did not err in dismissing complaint against two defendants as the complaint failed to state a claim based on respondeat superior; no error in denying post-dismissal motion for leave to amend where plaintiff chose to stand on his pleadings; denial of Rule 59(e) motion was not an abuse of discretion; as to unserved defendants, district court did not abuse its discretion by denying plaintiff's request for more time to serve after the failed to effectuate service over a period of eighth months.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 10-2477 ___________ Keith J. Mitan, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. J. Dwight McNiel; Midwest * Intelligence, Inc.; Stephen W. Eoff; D * [UNPUBLISHED] & E Plumbing and Heating, Inc., * * Appellees. * ___________ Submitted: October 26, 2010 Filed: October 29, 2010 ___________ Before LOKEN, MURPHY, and BENTON, Circuit Judges. ___________ PER CURIAM. In this diversity action alleging defamation, Keith Mitan appeals the district court s1 orders granting two defendants motion to dismiss and denying Mitan s motions for leave to amend his complaint, to alter or amend the judgment, for additional time to serve two other defendants, for authorization to serve the Missouri Secretary of State, for discovery, and for service by a United States Marshal. 1 The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri. Having carefully reviewed the record and the parties submissions on appeal, we agree with the district court that Mitan s complaint failed to state a claim based on respondeat superior as to the two defendants who moved to dismiss, see Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008); and we also find that court did not abuse its discretion in denying Mitan s post-dismissal motion for leave to amend, because he chose to stand on his pleadings in the face of the motion to dismiss, which identified the very deficiency upon which the court dismissed the complaint, see Hawks v. J.P. Morgan Chase Bank, 591 F.3d 1043, 1050-51 (8th Cir. 2010). The denial of Mitan s final attempt to amend, his Federal Rule of Civil Procedure 59(e) motion for reconsideration, was also not an abuse of discretion. See United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). As to the unserved defendants, we find that the district court did not abuse its discretion in refusing to grant Mitan additional time to serve after he failed to effectuate service over a period of roughly eight months: among other reasons, he failed to seek the additional extension before the expiration of the first extension. See Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 887-88 (8th Cir. 1996). We conclude as well that the court did not abuse its discretion in denying the motions for discovery, service by a United States Marshal, or leave to serve the Missouri Secretary of State. Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________ -2-
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