Larry Dillon v. West Publishing Corporation , 553 F. App'x 669 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY EDWARD DILLON, No. 12-16563
Plaintiff - Appellant, D.C. No. 3:03-cv-00203-RCJ-
WGC
v.
WEST PUBLISHING CORPORATION; MEMORANDUM*
WEST GROUP; THOMPSON
CORPORATION; THOMPSON LEGAL
PUBLISHING CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted January 16, 2014**
San Francisco, California
*
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).
Before: WALLACE and BYBEE, Circuit Judges, and GETTLEMAN, Senior
District Judge.***
Larry Dillon appeals from the district court’s dismissal of his complaint for
failure to effect timely service. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
We review the district court’s dismissal for failure to effect timely service
for an abuse of discretion. Townsel v. Contra Costa Cnty., Cal., 820 F.2d 319, 320
(9th Cir. 1987). A district court abuses its discretion when it makes an error of law
or applies the correct legal standard in a way that is illogical, implausible, or
without support that may be drawn from the record. Blum v. Merrill Lynch Pierce
Fenner & Smith, Inc., 712 F.3d 1349, 1352-53 (9th Cir. 2013).
Here, the district court did not abuse its discretion by holding that there was
no good cause for the nearly five-hundred day delay between Dillon’s filing of his
complaint and when Dillon actually effected service. The district court correctly
analyzed each of the ten Scrimer1 factors and reasonably concluded that seven of
them weighed in West’s favor. The district court also correctly acknowledged that
***
The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
1
Scrimer v. Eighth Judicial Dist. Court, 998 P.2d 1190, 1195-96 (Nev.
2000).
2
no single factor is controlling. Scrimer, 998 P.2d at 1195. In weighing the Scrimer
factors, the district court acknowledged that the statute of limitations barred Dillon
from refiling his claim and, as the district court reasonably explained, Dillon
created this issue by waiting to file his claim until the day before the statute of
limitations would lapse.
Furthermore, it is apparent that the district court gave Dillon the benefit of
the doubt, as demonstrated by its consideration of the five-month delay between
Dillon’s receipt of a right to sue letter and when Dillon actually effected service.
Because Dillon gave no explanation for this additional five month delay, there is
nothing in the record or Nevada law that undermines the district court’s sound
decision that Dillon could not justify the extremely untimely service. See Scrimer,
998 P.2d at 1194 (holding that Nevada law “encourage[s] diligent prosecution of
complaints once they are filed.”).
AFFIRMED.
3