Lanier v. American Consumer ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 3 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID L. LANIER,
Plaintiff-Appellant,
v.
No. 98-6030
(D.C. No. 97-CV-1283)
AMERICAN CONSUMER PRODUCTS,
(Western District of Oklahoma)
INC.,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
David L. Lanier appeals from the dismissal without prejudice of his pro se civil
rights action for failure to serve the summons and complaint within 120 days as required
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
by Fed. R. Civ. P. 4(m). Our review discloses the district court did no err, and we affirm
its judgment.
Mr. Lanier’s appeal is grounded upon issues not presented to the district court,
namely that “Christmas mail delayed service” and “defendant did not have a local
attorney at the time of service.” Nevertheless, we believe these contentions fall into the
same class as the justifications he did assert. It is plain that service was not accomplished
within the time specified in Rule 4(m) and that the district court found no reason for
extending the time. We review such holdings for abuse of discretion. Despain v. Salt
Lake Area Metro Gang Unit, 13 F.3d 1436, 1437 (10th Cir. 1994). The district court did
not abuse its discretion in this matter.
AFFIRMED.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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