Nicie Dillehay v. HUD , 334 F. App'x 53 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3068
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Nicie Dillehay, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Department of Housing and Urban * Eastern District of Arkansas.
Development; Schulte Construction; *
Regions Bank; Veterans * [UNPUBLISHED]
Administration; Allen Trammel Real *
Estate; Sallie Mae; Pioneer *
Collections; Student Loan Guarantee *
Foundation of Arkansas; MOHELA; *
Department of the Treasury; Greentree, *
*
*
Appellees. *
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Submitted: June 15, 2009
Filed: June 23, 2009
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Nicie Dillehay appeals the district court’s1 denial of her requests for an
injunction and dismissal of her civil action. Upon careful review, we conclude that
the district court did not abuse its discretion in dismissing, for insufficient service of
process, the claims against the Department of Housing and Urban Development, the
Veterans Administration, Sallie Mae, the Student Loan Guarantee Foundation, and the
Department of the Treasury. See Marshall v. Warwick, 155 F.3d 1027, 1030 (8th Cir.
1998) (review standard); see also Fed. R. Civ. P. 4(i)(1)(B) (to serve United States,
party must send copy of summons and complaint to Attorney General of United States
at Washington, D.C.), (m) (if defendant is not served within 120 days after complaint
is filed, court--on motion or on its own after notice to plaintiff--must dismiss action
without prejudice against that defendant or order that service be made within specified
time); Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 885 (8th Cir.
1996) (district court lacks jurisdiction where defendant is improperly served, whether
or not defendant had actual knowledge of lawsuit).
Further, taking all facts alleged in the complaint as true, we conclude that the
district court properly dismissed the claims against the remaining defendants. See
Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.) (review standard),
cert. denied, 129 S. Ct. 222 (2008); see also Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (plaintiff’s obligation to provide grounds of entitlement to relief
requires more than labels and conclusions; factual allegations must be enough to raise
right to relief above speculative level); Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004) (pro se complaints are to be construed liberally but must allege sufficient facts
to support claims advanced; noting that in reviewing pro se complaints, court will not
supply additional facts or construct legal theory).
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas, adopting the findings and recommendations of the
Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District
of Arkansas, now retired.
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Finally, we conclude that the district court did not abuse its discretion in
denying Dillehay’s requests for an injunction. See Lankford v. Sherman, 451 F.3d
496, 503-04 (8th Cir. 2006) (factors district court must consider in ruling on motion
for preliminary injunction include probability of success on merits; this court reverses
only for abuse of discretion, which occurs where district court rests its conclusion on
clearly erroneous factual findings or erroneous legal conclusions).
Accordingly, we affirm, but we modify the dismissal of the claims against the
Department of Housing and Urban Development, the Veterans Administration, Sallie
Mae, the Student Loan Guarantee Foundation, and the Department of the Treasury to
be without prejudice, see Fed. R. Civ. P. 4(m). We also deny her request on appeal
for an injunction.
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