River Oaks Homeowners Protection Committee, Inc. v. Edington & Associates

MEMORANDUM **

River Oaks Homeowners Protection Committee, Inc., (Homeowners) appeals from the district court’s dismissal of two actions and from the district court’s award of attorneys’ fees against it in one of them. We affirm in part, and reverse in part.

(1) It is undisputed that Homeowners failed to serve Edington & Associates within the 120 days provided for in Fed. R.Civ.P. 4cm). 1 Therefore, dismissal of that action was proper. See id.; Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir.1998). As Homeowners says, that dismissal should have been without prejudice. See id. Nothing in the dismissal order provides to the contrary, 2 but in an abundance of caution, we state our agreement that the dismissal should be deemed to have been without prejudice.

Homeowners also asserts that the district court erred when it dismissed its complaint against Edington pursuant to Fed.R.Civ.P. 12(b)(6), without giving leave to amend. We agree, in part. Even if the complaint was flawed, in the normal course of events, the district court would have been required to allow amendment of the complaint because it was not clear that *931 Homeowners would be unable to amend to spell out a…