De Tie v. Orange County, s. 97-55036
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | CANBY |
| Citation | 152 F.3d 1109 |
| Parties | , 33 Bankr.Ct.Dec. 29, Bankr. L. Rep. P 77,764, 98 Cal. Daily Op. Serv. 6271, 98 Daily Journal D.A.R. 8672 Gordon Allen DE TIE, Plaintiff-Appellant, v. ORANGE COUNTY, Brad Gates, as a Police Officer & Sheriff of County of Orange & as an Individual, Defendants-Appellees. |
| Docket Number | Nos. 97-55036,s. 97-55036 |
| Decision Date | 11 August 1998 |
Page 1109
Bankr. L. Rep. P 77,764,
98 Cal. Daily Op. Serv. 6271,
98 Daily Journal D.A.R. 8672
v.
ORANGE COUNTY, Brad Gates, as a Police Officer & Sheriff of
County of Orange & as an Individual, Defendants-Appellees.
Ninth Circuit.
Decided Aug. 11, 1998.
Page 1110
Lenton Aikins, Long Beach, California, for plaintiff-appellant.
Tracy Strickland and Donald C. McFarlane, Franscell, Strickland, Roberts & Lawrence, Santa Ana, California, for defendants-appellees.
Appeal from the United States District Court for the Central District of California; Linda H. McLaughlin, District Judge, Presiding. D.C. No. CV-95-00800-LHM.
Before: CANBY, Senior Circuit Judge, and KLEINFELD, Circuit Judge, and SCHWARZER, District Judge. 2
CANBY, Senior Circuit Judge:
Plaintiff Gordon De Tie's action against Orange County, California, was dismissed pursuant to Fed.R.Civ.P. 4(m) because he failed to serve his complaint upon the County within 120 days after filing it. He contends that the 120-day period was tolled by the automatic stay attending Orange County's bankruptcy, and that his delay was further excused by the fact that the district court had removed his case from its active caseload because of the bankruptcy. We conclude that both of De Tie's contentions are correct, and we accordingly reverse the dismissal of his action.
De Tie's complaint states that he was severely beaten by fellow prisoners at the Orange County jail on December 25, 1994. He filed an action under 42 U.S.C. § 1983 against the County on September 15, 1995, alleging that guards at the jail had incited the other prisoners to beat him. At the time the action was filed, however, Orange County was in bankruptcy proceedings under Chapter 9 of the Bankruptcy Code. Under that Chapter, the County's petition "operates as a stay ... of the commencement or continuation, including issuance or employment of process, of a judicial proceeding." 11 U.S.C.
Page 1111
§ 922(a)(1). De Tie did not serve the County at this time.On the same day that De Tie filed his complaint, the district court entered a form order stating as follows:
It is hereby ordered that this action is removed from this Court's active caseload pursuant to the bankruptcy of defendant entered 12/6/94.
This Court retains full jurisdiction over this action and this Order shall not prejudice any party to this action.
In February 1996, the parties entered into a stipulation by which the bankruptcy court issued an order that "modified" the stay of De Tie's action pursuant to an order of the bankruptcy court entered on October 28, 1995. The latter order is not in the record, but the stipulation recites that it "modified the automatic stay applicable to, and authorized the County to compromise and resolve, certain outstanding litigation under specified parameters." In June 1996, De Tie moved the district court to return his case to active status. Orange County opposed the motion on the ground that it had yet to be served with the complaint. The district court denied the motion and the case remained off the active caseload.
De Tie served the County on September 27, 1996. In October, De Tie again moved to return his case to the court's active caseload. The County filed a motion to dismiss the action under Fed.R.Civ.P. 4(m) for failure to serve the complaint within 120 days after filing. The district court found that "Plaintiff [sic] service was untimely, and Plaintiff failed to show good cause." It dismissed the action without prejudice, noting that more than a year had elapsed between filing and service. No order was ever entered restoring the case to the court's active caseload. 3 De Tie appeals the dismissal.
The County contends that we lack jurisdiction over this appeal because the order dismissing the action without prejudice was not final. See 28 U.S.C. § 1291. The County notes that, after the action was dismissed, De Tie refiled his complaint on December 3, 1996. The County relies on WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997).
The County's reliance is misplaced. WMX Technologies merely held that when a complaint is dismissed with leave to amend, the order is non-final and not appealable in the absence of a...
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