Leroy Dissinger v. United States , 543 F. App'x 620 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LEROY JOHN DISSINGER, No. 12-55128
Petitioner - Appellant, D.C. No. 2:11-cv-04631-JHN-SS
v.
MEMORANDUM *
UNITED STATES OF AMERICA; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Submitted October 15, 2013 **
Before: FISHER, GOULD, and BYBEE, Circuit Judges.
Leroy John Dissinger appeals pro se from the district court’s order
dismissing without prejudice his petition to quash an Internal Revenue Service
summons issued to a third party in connection with an investigation of his federal
tax liabilities. We have jurisdiction under 28 U.S.C. § 1291 and 26 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 7609(h)(1). We review for an abuse of discretion the district court’s decision
regarding the sufficiency of service of process, Rio Props., Inc. v. Rio Int’l
Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002), and its dismissal for failure to
complete service in a timely manner, Oyama v. Sheehan (In re Sheehan), 253 F.3d
507, 511 (9th Cir. 2001). We affirm.
The district court did not abuse its discretion by dismissing without
prejudice Dissinger’s petition because, as Dissinger now concedes, he did not
effectuate service as required under Federal Rule of Civil Procedure 4, and he
failed to provide sufficient reason for not doing so. See Fed. R. Civ. P. 4(i), (m)
(setting forth the requirements for service on the United States and the 120-day
deadline for completing service); Mollison v. United States, 568 F.3d 1073, 1077
(9th Cir. 2009) (Rule 4(m) applies to service of a petition under 26 U.S.C.
§ 7609(b)); In re Sheehan, 253 F.3d at 512 (explaining the requirements for
showing good cause under Rule 4(m)).
The district court did not abuse its discretion by denying Dissinger’s motion
for relief under Federal Rule of Civil Procedure 60(b)(1) because Dissinger failed
to show excusable neglect. See Lemoge v. United States, 587 F.3d 1188, 1191-92
(9th Cir. 2009) (setting forth the standard of review and factors for determining
when neglect is excusable).
2 12-55128
Dissinger’s contention that the district court erred in rejecting his reply brief
as untimely is unsupported by the record.
AFFIRMED.
3 12-55128