Cole v. Armstrong

97 F.3d 1458, 1996 U.S. App. LEXIS 38348, 1996 WL 552861

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 27, 1996
• Docket: 96-55248
• Status: Unpublished

Opinion

97 F.3d 1458

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Richard A. COLE, M.D., Plaintiffs-Appellants,
Cole Family Partners, L.P., a Pennsylvania limited
partnership, Plaintiff,
v.
Robert ARMSTRONG; Sanford M. Fisch; Center for Advance
Asset Protection, a California Corporation,
Defendants-Appellees.

No. 96-55248.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 23, 1996.*
Decided Sept. 27, 1996.

Before: FLETCHER, BRUNETTI, and NOONAN, Circuit Judges.

MEMORANDUM**

Richard A. Cole appeals pro se the district court's dismissal of his securities action against the defendants for failure to respond to an order to show cause as to why Cole failed to timely serve the defendants with the summons and complaint pursuant to Fed.R.Civ.P. 4(m). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. We review the district court's dismissal for failure to comply with an order of the court for abuse of discretion. See Swanson v. United States Forest Serv., 87 F.3d 339, 343 (9th Cir.1996).

Cole contends that he never received the district court's order to show cause. The district court's order does not have Cole's correct mailing address. Cole's complaint indicates that he resides in Newburyport, Massachusetts. The district court mailed the order to show cause to Newbury Point, Massachusetts. Given the discrepancy in the mailing address between the order and the complaint, we cannot presume that Cole received a warning that his complaint would be dismissed if he failed to serve the defendants. Accordingly, the district court abused its discretion in dismissing the complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.), cert. denied, 506 U.S. 915 (1992); Malone v. United States Postal Serv., 833 F.2d 128, 132-33 (9th Cir.1987), cert. denied, 488 U.S. 819 (1988).

VACATED AND REMANDED.

* The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3