822 F2d 51 Lacina v. G-K Trucking

822 F.2d 51

125 L.R.R.M. (BNA) 3279, 107 Lab.Cas. P 10,014

Francis LACINA, David Galbraith, Bill Knight, George Craig,
Ted Edwards, Charles Beeson, Donald Evans, Robert Beck, Lou
Resinger, Andrew Rogers, Buck Germany, Dan Kelley, Marvin
Gates, Wilburt Bond, William Gonzales, Lester Dixon, Frank
Matney, and Rick Bernas, Plaintiffs-Appellants,
and
Petersen & Ferguson, Appellant,
v.
G-K TRUCKING; General Cable; Penn-Central Corp.; G-K
Technologies; Eastern Carriers; and Robert
Jenson, Defendants-Appellees.

No. 85-5728.

United States Court of Appeals,
Ninth Circuit.

July 15, 1987.

Peter J. Ferguson, Santa Ana, Cal., for plaintiffs-appellants.

David Cathcart, Newport Beach, Cal., for defendants-appellees.

Before KENNEDY, BEEZER and HALL, Circuit Judges.

ORDER

PER CURIAM:


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1

Pursuant to an Order by the United States Supreme Court dated June 22, 1987, --- U.S. ----, 107 S.Ct. 3224, 97 L.Ed.2d 731, the judgment of this court filed on October 21, 1986, as amended on December 30, 1986, is VACATED and this case is REMANDED for further proceedings in light of West v. Conrail, --- U.S. ----, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987).

2

We note that in West, each defendant "acknowledged service on dates" within the requirements of Rule 4(j) of the Federal Rules of Civil Procedure. Id. at 1540. On remand the district court should therefore consider what effect, if any, the plaintiffs' failure to secure service of the first complaint has on the outcome. See id. at 1541, 1542 nn. 5-7 (holding that the service requirements of Rule 4(j) apply to complaints which toll the statute of limitations).

3

The motion to recall the mandate is DENIED as moot.