David Terry v. Aaa Arizona , 531 F. App'x 802 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ZAIRE TERRY; MARGARET No. 12-15563
SHAVIES-ALLEN,
D.C. No. 2:10-cv-02212-DGC
Plaintiffs - Appellants,
v. MEMORANDUM*
AAA ARIZONA, named Arizona
Automobile Association (AAA) on
amended complaint; AAA ARIZONA
INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted June 18, 2013**
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
David Zaire Terry and Margaret Shavies-Allen appeal from the district
court’s judgment dismissing their employment action alleging racial
*
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).
discrimination, harassment, and retaliation in violation of federal and state law.
We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion the district court’s dismissal for failure to serve the summons and
complaint in a timely manner, Oyama v. Sheehan (In re Sheehan), 253 F.3d 507,
511 (9th Cir. 2001), and we affirm.
The district court did not abuse its discretion by dismissing the action
because plaintiffs did not serve the summons and complaint on defendants within
15 months of filing suit, even though the court gave extensions and warned that
failure to complete service in a timely manner could result in dismissal, and
plaintiffs were represented by counsel during the last six months of litigation. See
Fed. R. Civ. P. 4(m) (requiring service within 120 days of filing the complaint); In
re Sheehan, 253 F.3d at 512-13 (discussing the good cause standard and the district
court’s broad discretion to extend time for service or dismiss without prejudice).
We construe the dismissal as a dismissal without prejudice. See Fed. R. Civ. P.
4(m) (dismissal for failure to serve in a timely manner is without prejudice).
Moreover, the district court did not abuse its discretion by striking plaintiffs’
second response to defendants’ motion to dismiss because the federal and local
rules did not permit a second response, and plaintiffs did not seek leave of court to
file it. See Preminger v. Peake, 552 F.3d 757, 769 n.11 (9th Cir. 2008) (setting
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forth the standard of review for a district court’s decision concerning its
management of litigation); United States v. W.R. Grace, 526 F.3d 499, 509 (9th
Cir. 2008) (en banc) (noting that “[d]istrict courts have inherent power to control
their dockets” and that “judges exercise substantial discretion over what happens
inside the courtroom” (citations and internal quotation marks omitted)).
Plaintiffs’ contention that the district court erred by not sua sponte quashing
the motion to dismiss is unpersuasive.
AFFIRMED.
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