David L. Lanier v. American Consumer Products, Inc.

145 F.3d 1346

98 CJ C.A.R. 2796

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

David L. LANIER, Plaintiff-Appellant,
v.
AMERICAN CONSUMER PRODUCTS, INC., Defendant-Appellee.

No. 98-6030.

United States Court of Appeals,
Tenth Circuit.

June 3, 1998.

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

1

ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

3

David L. Lanier appeals from the dismissal without prejudice of his pro se civil rights action for failure to serve the summons and complaint within 120 days as required by Fed.R.Civ.P. 4(m). Our review discloses the district court did no err, and we affirm its judgment.

4

Mr. Lanier's appeal is grounded upon issues not presented to the district court, namely that "Christmas mail delayed service" and "defendant did not have a local attorney at the time of service." Nevertheless, we believe these contentions fall into the same class as the justifications he did assert. It is plain that service was not accomplished within the time specified in Rule 4(m) and that the district court found no reason for extending the time. We review such holdings for abuse of discretion. Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1437 (10th Cir.1994). The district court did not abuse its discretion in this matter.

5

AFFIRMED.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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