DeGeorge v. McCambridge Deixler & Marmaro, LLP

441 F. App'x 537

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 6, 2011
• Docket: 06-55851
• Status: Unpublished

Opinion

MEMORANDUM **

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 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), 258 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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.