DeGeorge v. McCambridge Deixler & Marmaro, LLP

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 6 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
REX K. DeGEORGE and KATHERYN No. 06-55851
PALMER DeGEORGE,
D.C. No. 2:05-cv-08682-GPS-PLA
Plaintiffs - Appellants,
v. MEMORANDUM *
McCAMBRIDGE DEIXLER &
MARMARO, LLP; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Rex K. DeGeorge and Katheryn Palmer DeGeorge appeal pro se from the
district court’s order dismissing without prejudice their action for failure to serve
all but one of the defendants in a timely manner. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review for an abuse of discretion a dismissal for failure to
serve timely a summons and complaint. Oyama v. Sheehan (In re Sheehan), 253
F.3d 507, 511 (9th Cir. 2001). We review de novo the denial of a motion to
remand a removed case. D-Beam Ltd. v. Roller Derby Skates, Inc., 366 F.3d 972,
974 n.2 (9th Cir. 2004). We affirm.
The district court did not abuse its discretion in dismissing the action
without prejudice because plaintiffs failed to serve the remaining defendants in a
timely manner or show good cause for this failure. See Fed. R. Civ. P. 4(m) (120-
day time limit for service unless the plaintiff shows good cause); In re Sheehan,
253 F.3d at 512 (setting forth factors for dismissal under Rule 4(m)).
The district court did not err in rejecting plaintiffs’ in forma pauperis
application on the basis of a lack of proof of service. See Fed. R. Civ. P. 5(d).
The district court properly denied plaintiffs’ motion to remand because the
court had federal question jurisdiction. See 28 U.S.C. § 1441(a)-(b); Emrich v.
Touche Ross & Co., 846 F.2d 1190, 1196 (9th Cir. 1988) (RICO claim is
removable because it arises under the laws of the United States).
Plaintiffs’ remaining contentions are unpersuasive.
AFFIRMED.
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