Tabatha Frerks v. Todd Wolf ( 2021 )

NOT FOR PUBLICATION FILED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
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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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