Phillips v. Electoral College

36 F. App'x 306

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 4, 2002
• Docket: No. 01-16475; D.C. No. CV-01-00011-WHO
• Status: Published

Opinion

MEMORANDUM

**

Arnie Phillips appeals the dismissal of his complaint seeking, inter alia, declaratory relief abolishing the Electoral College and declaring Albert Gore and Joseph Lieberman President and Vice-President of the United States. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

The district court did not abuse its discretion by dismissing Phillips’ complaint pursuant to Fed.R.Civ.P. 4(m).¹ Because Phillips failed to serve process on the defendants in accordance with Rules 4(i) and 4(h), the district court lacked personal jurisdiction over the defendants. See Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982).

Phillips’ additional arguments fail. The moving defendants did not waive their objection to the defect in service by filing their motion to dismiss. See Fed.R.Civ.P. 12(h); Martens v. Winder, 341 F.2d 197, 200 (9th Cir.1965). The district court did not abuse its discretion by concluding that Phillips did not establish “good cause” existed for his failure to properly serve the defendants and that neither the exception announced in Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir.1984), nor Rule 4(m) applied to excuse the defect.

AFFIRMED.

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

1 . Phillips’ Motion to Strike the Reply Brief of the United States Attorney is denied.