JOZWIAK v. RAYTHEON MISSILE SYSTEMS (2021)

United States Court of Appeals, Ninth Circuit.2021-08-26No. No. 20-17361

Summary · law.co

Holding. The court affirmed the district court's dismissal, finding no abuse of discretion where the plaintiff failed to effect proper service after notice and repeated directives, and where the original complaint failed to state claims with sufficient clarity.

Paul Jozwiak appealed a district court dismissal of his employment termination lawsuit. The district court dismissed his case for two independent reasons: first, Jozwiak failed to properly serve the defendant with the summons and amended complaint despite receiving notice and multiple opportunities to do so; and second, his original complaint did not contain a clear statement of his claims as required by civil procedure rules. The appellate court found no abuse of discretion in either dismissal.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether dismissal for failure to serve was an abuse of discretion
Whether the original complaint adequately stated a claim under pleading standards
Whether the district court was biased

Procedural posture

The plaintiff appealed pro se from a district court judgment dismissing his federal employment and benefits claims.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Paul E. Jozwiak appeals pro se from the district courts 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 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 Jozwiaks 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 courts broad discretion to dismiss an action).

The district court properly dismissed Jozwiaks 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 reviewed de novo).

We reject as without merit Jozwiaks 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.