Aziz v. Rosa

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 25 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ABDUL AZIZ,
Plaintiff-Appellant,
v. No. 00-1352
(D.C. No. 98-D-2523)
ALBERT A. ROSA, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
Plaintiff Abdul Aziz appeals from the district court’s order denying his
motion to remand the underlying case to state court. Because the district court
dismissed this case in December of 1999 and plaintiff failed to appeal from that
order, we dismiss this appeal for lack of jurisdiction.
Plaintiff filed a complaint in tort against defendant Rosa in federal district
court. After initial service on defendant was quashed as insufficient under
Fed. R. Civ. P. 4(e), plaintiff failed to effect service within the 120-day time
period set out in Fed. R. Civ. P. 4(m). The district court issued an order allowing
plaintiff an opportunity to demonstrate good cause for the failure to effect
service, to which he did not respond. On December 22, 1999, the court dismissed
the action without prejudice. On January 28, 2000, plaintiff filed a motion to
remand the case to state court. 1
However, he did not appeal from the district
court’s dismissal of his case. The district court denied the motion to remand as
moot in an order dated August 15, 2000. It is from this order that plaintiff now
seeks to appeal.
On appeal, plaintiff continues to argue the merits of his underlying
claims, and appears to believe that the district court granted summary
judgment to defendant or dismissed the case for failure to state a claim under
1
Defendant’s response to this motion notes that Aziz had confused this case
with another case filed in state court in which Aziz asserted the same claims
against defendant. That case, No. 99-D-2216, was removed to federal court.
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Fed. R. Civ. P. 12(b)(6). Neither of those characterizations is correct. The
district court dismissed plaintiff ’s case without prejudice because he did not
respond to the court’s show cause order regarding his failure to effect proper
service on defendant.
Because plaintiff failed to appeal the district court’s final order in this case,
and because his motion to remand was not a post-judgment motion which would
toll the time for taking an appeal, we conclude that we lack appellate jurisdiction
over this case. See Rodgers v. Wyo. Atty. Gen. , 205 F.3d 1201, 1204 (10th Cir.
2000) (“This court cannot exercise jurisdiction absent a timely notice of appeal.”)
(quotation omitted). The appeal is DISMISSED. All pending motions are
DENIED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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