884 F. 2d 1395 - Milford v. P Hodel O

MEMORANDUM**

* CKGROUND

Milford brought this action against Hodel, the Secretary of the Interior, and Swimmer, the Assistant Secretary of Indian Affairs, pursuant to 42 U.S.C. Secs. 2000(e) et seq., 29 U.S.C. Secs. 791 et seq. and 5 U.S.C. Sec. 552(a). On March 4, 1987, Milford filed his complaint and requested that the clerk issue summonses for Hodel and Swimmer. The clerk issued the summons for Hodel but did not issue the summons for Swimmer. On March 5, 1987, Milford again requested the clerk to issue the summons. The summons did not issue, and Milford took no further action.

On August 3, 1987, Milford received an order to show cause why his action should not be dismissed for failure to comply with Fed.R.Civ.P. 4(j). On August 9, 1987, Milford took action to issue the summons. The summons was finally issued August 20, 1987, and Milford subsequently served Hodel and Swimmer on August 21, 1987.

On August 26, 1987, Milford filed a motion to enlarge the time for service under Fed.R.Civ.P. 6(b)(2). The motion was denied. The court dismissed the action pursuant to Fed.R.Civ.P. 4(j) for failure to make timely service. Milford moved for reconsideration under Fed.R.Civ.P. 59(e) which the district court denied. Milford timely appeals the dismissal of his action and the denial of his motion for reconsideration. We affirm the district court's dismissal.

This court reviews a dismissal of an action under Fed.R.Civ.P. 4(j) for an abuse of discretion. Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir.1985). The denial of a motion for reconsideration pursuant to Fed.R.Civ.P. 59(e) is also reviewed for an abuse of discretion. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985).

Milford contends he had good cause for failing to comply with Rule 4(j) because the clerk failed to timely issue a summons for Swimmer. This contention lacks merit.

Pursuant to Fed.R.Civ.P. 4(j), "an action against a defendant shall be dismissed without prejudice if that defendant is not served with a copy of the summons and complaint within 120 days after the filing of the complaint, unless the plaintiff can show good cause why service was not made." Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir.1987). Ignorance or negligence of counsel does not constitute good cause. Id. at 320.

Milford has not shown good cause for failing to timely serve Hodel. Milford conceded that he intentionally waited for the Summons for Swimmer to issue so that he could serve both defendants at the same time. Intentional noncompliance with Rule 4(j) does not constitute good cause. See Wei, 763 F.2d at 372. Thus the district court properly dismissed the action against Hodel.

While Milford has shown that the clerk was not timely in issuing the summons for Swimmer, this alone did not necessarily show good cause for a failure to comply with Rule 4(j). Milford had 119 days in which to follow up on the letter sent to the clerk on March 5, 1987. In fact, the March 5, 1987 letter was his only attempt to contact the clerk regarding the summons. We cannot say that the district court's conclusion that Milford failed to diligently prosecute his action was erroneous. It certainly was not an abuse of discretion. Rule 4(j) is intended to force parties and their attorneys to diligently prosecute their action. See Wei, 763 F.2d at 372. Accordingly, the district court's order dismissing Milford's action is

AFFIRMED.