Ostler v. State of Utah ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 8 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
NEAL K. OSTLER,
Plaintiff - Appellant,
v. No. 03-4293
(D.C. No. 2:01-CV-291-C)
STATE OF UTAH; DEPARTMENT (D. Utah)
OF TRANSPORTATION;
DEPARTMENT OF HUMAN
SERVICES; DEPARTMENT OF
CORRECTIONS; U.S.
DEPARTMENT OF COMMERCE;
DEPARTMENT OF NATURAL
RESOURCES; UTAH STATE TAX
COMMISSION; DEPARTMENT OF
WORKFORCE SERVICES; STATE
BOARD OF PARDONS;
COMMISSION ON JUVENILE
JUSTICE; DEPARTMENT OF
PUBLIC SAFETY; MANAGEMENT
& TRAINING, a Subcontractor of the
State of Utah,
Defendants - Appellees,
and
ROBIN ARNOLD WILLIAMS;
EMMA CHACON; BLAKE CHARD;
JOHN MATTHEWS; BRENT PERRY;
JOHN NJORD, Executive Director;
ALAN LAKE; LOREN GRAHMS,
employee; PETE HAUN, Executive
Director; MIKE SIBBETT, of the
Board of Pardons; ABDUL BAKSH,
employee; DOUGLAS BORBA,
Executive Director; ANTHONY
TAGGART, Securities Director;
KATHLEEN CLARKE, Executive
Director; BILL WOOLEY, Director of
Law Enforcement; CARLOS
RODRIGUEZ, Human Resource
Manager; ROD MARELLI, Executive
Director; KENT JORGENSON, Law
Enforcement Supervisor; (FNU)
DENNIS, Human Resource Manager;
ROBERT GROSS, Executive Director;
CAMILLE ANTHONY, Director;
DAN BAILESS, Office of Crime
Victims Reparation Supervisor;
CRAIG DEARDEN, Department
Commissioner, Department of Public
Safety; SID GROLL, Director of
Peace Office Standards and Training;
LYNN MILLER, Human Resouce
Director; DEPARTMENT OF
HUMAN RESOURCE
MANAGMENT; KAREN OKABE,
Executive Director; WARDEN,
Promontory Facility; JANE
SCHILLING, of Human Resources,
Defendants.
ORDER AND JUDGMENT *
*
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The 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.
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Before SEYMOUR , LUCERO , and O’BRIEN, Circuit Judges.
Neal Ostler, appearing pro se, appeals from the district court’s dismissal of
his civil rights and employment discrimination complaint for lack of timely
service of process. We AFFIRM.
On April 25, 2001, Ostler brought an action under 42 U.S.C. §§ 1981 and
1983 and Title VII of the Civil Rights Act of 1964, naming the State of Utah and
certain state departments of Utah as defendants. On October 3, 2001, the district
court dismissed the action without prejudice. Ostler amended his complaint and
added numerous individuals as defendants as well as claims under the Age
Discrimination in Employment Act (ADEA), 42 U.S.C. § 6101, and Utah state
law. However, Ostler never accomplished service of the individual defendants
despite the district court’s repeated admonitions to do so.
Instead of serving the individual defendants with copies of the amended
complaint as directed, Ostler requested permission to serve them with abbreviated
copies of the complaint, or in the alternative, a second amended complaint which
had not been filed with the district court. The magistrate judge to whom the
district court referred Ostler’s requests denied the motion; objecting to the
magistrate’s recommendations, Ostler argued that “[t]he requirement to serve a
full copy of the complaint is even more a technicality than the requirement to
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serve the individuals and is an additional expense to the Plaintiff that should not
be necessary to satisfy the requirements of service.” (App. Vol. II, Doc. 105 at
3.) On November 12, 2003, the district court denied Ostler’s objections to the
magistrate judge’s Order and dismissed the individual defendants from the suit.
Ostler appeals from those dismissals. 1
We review a district court’s order of dismissal for failure to comply with
the Federal Rules of Civil Procedure or prior orders of the district court for abuse
of discretion. Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003). Ostler
claims that the district court abused its discretion by not accepting as adequate his
attempts to serve the individual defendants with an abbreviated amended
complaint or the unfiled second amended complaint. However, the Federal Rules
of Civil Procedure require that service be effected “by delivering a copy of the
summons and of the complaint.” Fed. R. Civ. P. 4(e).
While we construe the complaints of pro se litigants liberally, see Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), “[a] pro se litigant is still
obligated to follow the requirements of Fed. R. Civ. P. 4.” DiCesare v. Stuart, 12
1
Although it is unclear from the record whether the district court entered a
separate final judgment, even if no separate final judgment was entered, we have
jurisdiction over this appeal given that both parties waived the separate document
requirement. Clough v. Rush , 959 F.2d 182, 186 (10th Cir. 1992) (recognizing
that both parties may waive the requirement and that “[e]fficiency and judicial
economy would not be served by requiring the parties to return to the district
court to obtain a separate judgment.”)
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F.3d 973, 980 (10th Cir. 1993). In this case, Ostler did not comply with Rule 4;
thus we cannot conclude that the district court’s dismissal for failure to deliver an
actual copy of the summons and complaint was an abuse of discretion.
Accordingly, we AFFIRM.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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