Tabatha Frerks v. Todd Wolf

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2021
• Docket: 20-35388
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TABATHA BERNADETTE FRERKS; No. 20-35388 CHARLES F. FRERKS, D.C. No. 2:19-cv-00978-RSM Plaintiffs-Appellants,

v. MEMORANDUM*

TODD P. WOLF; et al.,

Defendants-Appellees,

and

RURAL MUTUAL INSURANCE COMPANY; et al.,

Defendants.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

* 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). Tabatha Bernadette Frerks and Charles F. Frerks appeal pro se from the

district court’s judgment dismissing their action alleging federal and state law

claims concerning a Wisconsin foreclosure action. 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 under Federal Rule of Civil Procedure 4(m).

Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 511 (9th Cir. 2001). We may

affirm on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055,

1058-59 (9th Cir. 2008). We affirm.

The district court did not abuse its discretion by dismissing plaintiffs’ claims

against defendants Wyssbrod and DMW WIS LLC because plaintiffs failed to

effect timely and proper service of the summons and complaint on these

defendants and did not show good cause for their failure, despite being given

notice and an opportunity to do so. See Fed. R. Civ. P. 4(m) (district court may

dismiss a claim for failure to serve, after providing notice to the plaintiff and

absent a showing of good cause for failure to serve); Sheehan, 253 F.3d at 512

(discussing Rule 4(m)’s “good cause” standard).

Dismissal of plaintiffs’ claims against defendant Wolf was proper because

plaintiffs failed to allege facts sufficient to make a prima facie showing that the

district court had personal jurisdiction over Wolf. See CollegeSource, Inc. v.

AcademyOne, Inc., 653 F.3d 1066, 1073-80 (9th Cir. 2011) (setting forth standard

2 20-35388 of review and discussing requirements for general and specific personal

jurisdiction).

However, dismissals for failure to effect service and for lack of personal

jurisdiction should be without prejudice. See Fed. R. Civ. P. 4(m); Grigsby v. CMI

Corp., 765 F.2d 1369, 1372 n. 5 (9th Cir. 1985). We therefore affirm the district

court’s judgment, but remand to the district court with instructions to amend the

judgment to reflect that it is without prejudice.

In their opening brief, plaintiffs fail to raise, and therefore have waived, any

challenge to the district court’s dismissal of their claims against the other

defendants for lack of personal jurisdiction. See Indep. Towers of Wash. v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any claims

that were not actually argued in appellant’s opening brief.”); Acosta-Huerta v.

Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by argument in pro se

appellant’s opening brief are waived).

We reject as unpersuasive plaintiffs’ contention that the district court erred

by not granting their request to remove the action to the Supreme Court.

AFFIRMED; REMANDED with instructions to amend the judgment.

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