Keith Mitan v. J. McNiel , 399 F. App'x 144 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2477
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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Intelligence, Inc.; Stephen W. Eoff; D * [UNPUBLISHED]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. *
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Submitted: October 26, 2010
Filed: October 29, 2010
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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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.
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