Frankenberger v. Firth Rixson, Incorporated , 565 F. App'x 37 ( 2014 )

13-2712-cv
Frankenberger v. Firth Rixson, Incorporated
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of May, two thousand fourteen.
Present: ROSEMARY S. POOLER,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_________________________________________
BRIAN FRANKENBERGER,
Plaintiff-Appellant,
-v- 13-2712-cv
FIRTH RIXSON, INCORPORATED,
Defendant-Appellee.
_____________________________________________________
Appearing for Appellant: Brian Frankenberger, Rochester, N.Y.
Appearing for Appellee: Margaret A. Clemens, Taren Nicole Greenidge, and
Jacqueline Phipps Polito, Littler Mendelson, P.C.,
Rochester, N.Y.
Appeal from the United States District Court for the Western District of New York
(Telesca, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.
Brian Frankenberger, proceeding pro se, appeals from a June 10, 2013 decision and order
of the United States District Court for the Western District of New York (Telesca, J.) dismissing
his complaint on account of his failure to effect service on the defendant. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review dismissals under Rule 4(m) of the Federal Rules of Civil Procedure for failure
to timely serve process for abuse of discretion. See Gerena v. Korb, 617 F.3d 197, 201 (2d Cir.
2010). A district court abuses its discretion if it bases its ruling on an erroneous view of the law
or clearly erroneous findings of fact, or if its decision “cannot be located within the range of
permissible decisions.” Lynch v. City of N.Y., 589 F.3d 94, 99 (2d Cir. 2009) (internal quotation
marks and citations omitted). Pursuant to Rule 4(m):
If a defendant is not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period.
A district court also has discretion to enlarge the 120-day period for service, even in the absence
of good cause. See Zapata v. City of N.Y., 502 F.3d 192, 196 (2d Cir. 2007). Ordinarily, we will
not overrule a district court’s dismissal for lack of service unless the appellant “advance[s] some
colorable excuse for neglect.” Id. at 198.
We conclude that the district court did not abuse its discretion in dismissing
Frankenberger’s complaint, based on its conclusion that he had not been diligent in his efforts to
effect service in a timely manner. We affirm for substantially the same reasons set forth by the
district court in its thorough and well-reasoned order.
We have considered Frankenberger’s remaining arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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