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affirming dismissal of pro se plaintiff's suit for violation of Rule 4(m) where plaintiff offered "no justification for the untimeliness" and the record reflected no "attempt to pursue the suit"
Summary of this case from PAYNE v. GAIL PITTMAN, INC.Opinion
No. 06-51075 Summary Calendar.
June 8, 2007.
Riad E. Hamad, Austin, TX, for Plaintiff-Appellant.
R. Barry Robinson, Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, Austin, TX, for Defendants-Appellees.
Appeal from the United States District Court for the Western District of Texas, No. 06-CV-083.
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
Riad Elsolh Hamad appeals the district court's dismissal of his suit without prejudice due to Hamad's failure to timely serve the defendants and failure to prosecute. We affirm.
Hamad, acting pro se, filed a lawsuit against the United States on February 1, 2006. He complained about, inter alia, being harassed at airports and public places and the Internal Revenue Service's alleged misplacement of his tax returns. The case was initially delayed until Hamad paid outstanding court sanctions. On May 31, 2006, Hamad obtained a summons from the district court. He then sent a copy of the complaint and summons by certified mail to the office of the U.S. Attorney for the Western District of Texas. See FED. R. Civ. P. 4(i). The mailing was postmarked June 6, 2006, which was after the 120-day deadline for timely service. See FED. R. CIV. P. 4(m).
The suit was also filed against Joseph Nicholas, who, according to Hamad's complaint, is an "illegal alien from Lebanon" and whom Hamad sued for failure to comply with immigration laws. Hamad served an attorney named Jimmy Nassour on behalf of Nicholas, but Nassour notified the district court that he did not have authority to accept service as he did not represent Nicholas. Hamad does not specifically discuss his service of Nicholas on appeal.
On July 25, 2006, the district court dismissed Hamad's suit without prejudice for failure to timely serve the defendants and for failure to duly prosecute the lawsuit. In its order of dismissal, the district court noted that Hamad was well known to the court for filing frivolous lawsuits and that "Mr. Hamad is well versed in the filing of lawsuits and knows he must serve the defendants that he makes outrageous allegations against within the 120 days following the filing of his complaint." Hamad did not file a motion for reconsideration but appealed to this court.
We review the district court's dismissal for want of prosecution for abuse of discretion. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). Dismissal for failure to effect timely service of process is also reviewed for abuse of discretion. Lindsey v. U.S. R.R. Retirement Bd., 101 F.3d 444, 445 (5th Cir. 1996). Federal Rule of Civil Procedure 4(m) governs the time limits for service. It provides: "If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice." FED. R. CIV. P. 4(m).
Hamad's service was untimely, and he offers no justification for the untimeliness. The government also notes that, to the extent that Hamad is bringing suit against the Internal Revenue Service or the Department of Homeland Security, he has not served those agencies. In addition, the record does not indicate any attempt to pursue the suit. The district court was within its discretion to dismiss the complaint without prejudice.
The judgment of the district court is AFFIRMED.