John V. Colen v. United States of America;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
PDM/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN V. COLEN,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA; et al.,
Defendants - Appellees.
No. 08-55978
D.C. No. 5:07-cv-01359-RSWL-
RNB
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
John V. Colen appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action for failure to prosecute. We have jurisdiction pursuant
FILED
MAR 03 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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to 28 U.S.C. § 1291. We review for abuse of discretion, Pagtalunan v. Galaza,
291 F.3d 639, 640 (9th Cir. 2002), and we affirm.
The district court did not abuse its discretion by dismissing the action,
without prejudice, after warning Colen to comply with Federal Rule of Civil
Procedure 4(m) and timely serve defendants, providing him an opportunity to
demonstrate good cause when he failed to do so, and properly weighing the
pertinent factors for dismissal. See Oyama v. Sheenan (In re Sheehan), 253 F.3d
507, 512 (9th Cir. 2001) (affirming lower court’s holding that there was no good
cause shown to extend the service period where plaintiff failed to show party to be
served received actual notice of the lawsuit, that defendant would suffer no
prejudice, and that plaintiff would be severely prejudiced if his complaint were
dismissed); Pagtalunan, 291 F.3d at 642-43 (discussing factors that courts must
consider in determining whether to dismiss for failure to prosecute or to comply
with a court order).
The district court properly determined that Colen’s attempt to appeal from a
nonappealable order did not divest the district court of jurisdiction or toll the time-
period for effectuating service, especially in light of the district court’s explicit
warnings to Colen that it retained jurisdiction. See Estate of Conners v. O’Connor,
6 F.3d 656, 658 (9th Cir. 1993) (stating that filing a notice of appeal from a

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nonappealable order does not effect a transfer of jurisdiction from the district court
to the court of appeals).
Colen’s remaining contentions are unpersuasive.
AFFIRMED.

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