Herman K. Edwards v. Julia Edwards John Edwards Robert Lee Edwards Milderine (Shannon) Edwards Gloria (Edwards) Clark

754 F.2d 298, 2 Fed. R. Serv. 3d 20, 1985 U.S. App. LEXIS 29029

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 12, 1985
• Docket: 84-2601
• Status: Published

Opinion

PER CURIAM.

Herman Edwards appeals from the district court’s order dismissing his complaint for failure to prosecute. On May 29, 1984, Edwards filed his complaint; and on November 15, 1984, the district court dismissed the complaint because Edwards failed to serve a summons and complaint upon any of the defendants. We affirm the dismissal.

Federal Rule of Civil Procedure 4(j) provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative[.]

In the present case, 170 days passed between the filing of the complaint and the district court’s dismissal. Moreover, the district court had warned Edwards on July 16, 1984, that his complaint would be dismissed if he did not begin serving the defendants. In these circumstances, the district court did not abuse its discretion in dismissing Edwards’ complaint. See Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir.1976).

Accordingly, the district court’s order dismissing Edwards’ complaint without prejudice is affirmed.