Marilyn Durgin v. Anthony M. Frank, Postmaster General

967 F.2d 585 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Marilyn DURGIN, Plaintiff-Appellant, v. Anthony M. FRANK, Postmaster General, et al., Defendant-Appellee. No. 90-16677. United States Court of Appeals, Ninth Circuit. Submitted June 10, 1992. * Decided June 16, 1992. Before JAMES R. BROWNING, PREGERSON and RYMER, Circuit Judges. 1 MEMORANDUM ** 2 Marilyn Durgin's Title VII action was dismissed with prejudice by the district court. We reverse and remand. 3 Durgin first argues that her action should not have been dismissed at all. However, as in Whale v. United States, 792 F.2d 951, 953 (9th Cir.1986), "counsel's failure to read Rule 4" simply does not constitute a justifiable excuse for failure to properly serve the U.S. Attorney. 4 Durgin next argues that the dismissal should have been without prejudice. Dismissals pursuant to Rule 4 are to be without prejudice to refiling. See Rule 4(j) (if the summons and complaint are not served within 120 days and the…