Paul Jozwiak v. Raytheon Missile Systems

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2021
• Docket: 20-17361
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL E. JOZWIAK, No. 20-17361

Plaintiff-Appellant, D.C. No. 4:20-cv-00039-DCB

v. MEMORANDUM* RAYTHEON MISSILE SYSTEMS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Paul E. Jozwiak appeals pro se from the district court’s judgment dismissing

his action alleging federal claims arising from the termination of his employment

and benefits. We have jurisdiction under 28 U.S.C. § 1291. We review for an

abuse of discretion a dismissal for failure to serve the summons and complaint

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under Federal Rule of Civil Procedure 4(m). Oyama v. Sheehan (In re Sheehan),

253 F.3d 507, 511 (9th Cir. 2001). We affirm.

The district court did not abuse its discretion by dismissing Jozwiak’s action

because Jozwiak failed to effect proper service of the summons and amended

complaint after being given notice and repeated opportunities and directives to do

so. See Fed. R. Civ. P. 4(m) (outlining requirements for proper service and

explaining that a district court may dismiss for failure to serve after providing

notice and absent a showing of good cause for failure to serve); Ariz. R. Civ. P.

4.1-4.2 (outlining requirements for proper service); In re Sheehan, 253 F.3d at 512-

13 (discussing good cause and district court’s broad discretion to dismiss an

action).

The district court properly dismissed Jozwiak’s original complaint with

leave to amend for failure to comply with Federal Rule of Civil Procedure 8(a)(2).

See Fed. R. Civ. P. 8(a)(2) (pleading must contain “a short and plain statement of

the claim showing that the pleader is entitled to relief”); McHenry v. Renne, 84

F.3d 1172, 1179-80 (9th Cir. 1996) (affirming dismissal of complaint that failed to

set forth simple, concise and direct averments); see also Barren v. Harrington, 152

F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C.

§ 1915(e)(2)(B)(ii) is reviewed de novo); Dominguez v. Miller (In re Dominguez),

51 F.3d 1502, 1508 n.5 (9th Cir. 1995) (dismissal under Fed. R. Civ. P. 8 is

2 20-17361 reviewed de novo).

We reject as without merit Jozwiak’s contentions that the district court was

biased.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 20-17361