16 F3d 415 Burrell v. Oklahoma Army National Guard Co B

David C. BURRELL, Plaintiff-Appellant,
v.
OKLAHOMA ARMY NATIONAL GUARD CO. B, 1st Bn. 179th Inf.,
Sapulpa, Oklahoma, Defendant-Appellee.

No. 93-5155.

United States Court of Appeals,
Tenth Circuit.

Jan. 6, 1994.

16 F.3d 415
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

ORDER AND JUDGMENT1

Before MOORE, ANDERSON and KELLY, Circuit Judges.2


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1

Mr. Burrell appeals from the dismissal of his civil rights action against the Oklahoma Army National Guard. Mr. Burrell filed his complaint in November 1992, alleging wrongful discharge from the National Guard based upon events occurring in 1986. Mr. Burrell directed an alias summons to a career counselor in the National Guard who was not captioned as a defendant, but was unable to serve an appropriate representative of Defendant Oklahoma Army National Guard. See Fed.R.Civ.P. 4(d)(6); Okla. Stat. Ann. tit. 12, 2004(C)(1)(c)(6). After two status hearings, the Magistrate Judge recommended in June 1993 that the case be dismissed for failure to serve within 120 days. The district court adopted the recommendation.

2

The district court's dismissal of this action, which is without prejudice in accordance with Fed.R.Civ.P. 4(j), did not constitute an abuse of discretion. See Jones v. Frank, 973 F.2d 872, 873 (10th Cir.1992). Although Mr. Burrell appeared pro se and was unable to obtain representation, he had the burden of proper service. Dicesare v. Stuart, 1993 WL 524388, * 6, No. 93-5019 (10th Cir. Dec. 20, 1993). Under these circumstances, the failure to obtain service was not based on good cause or justifiable excuse. The judgment of dismissal of the district court is therefore

3

AFFIRMED.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993. --- F.R.D. ----

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 cause therefore is ordered submitted without oral argument