                                                                FILED
                                                     United States Court of Appeals
                                                             Tenth Circuit

                                                            June 11, 2008
                 UNITED STATES COURT OF APPEALS
                                                         Elisabeth A. Shumaker
                        FOR THE TENTH CIRCUIT                Clerk of Court




SYLVANA LUCIANI,

            Plaintiff-Appellant,

v.                                                  No. 07-2248
                                        (D.C. No. 1:06-cv-00426-JCH-LFG)
JAQULIN C. INGLE, Administrative                     (D. N.M.)
Services Division Director,
New Mexico Department of Labor, In
Her Individual Capacity; TERRY
OTHICK, Information Services
Consultant, New Mexico Department
of Labor, In His Individual Capacity;
DORIS DUHIGG, EEO Officer,
New Mexico Department of Labor,
In Her Individual Capacity; JOEL
KORNGUT, Human Resources Bureau
Chief, New Mexico Department of
Labor, In His Individual Capacity;
LALA TRUJILLO-GARCIA,
Administration/Operations Manager,
New Mexico Department of Labor,
In Her Individual Capacity; PATRICK
SIMPSON, General Counsel,
New Mexico Department of Labor,
In His Individual Capacity; VIRGINIA
BACA, Administrative Assistant,
New Mexico Department of Labor,
In Her Individual Capacity,

            Defendants-Appellees.
                          ORDER AND JUDGMENT *


Before McCONNELL and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.


      Sylvana Luciani appeals the dismissal of her suit, brought under 42 U.S.C.

§ 1983, which alleged constitutional violations stemming from the termination of

her employment. Defendants removed the matter to federal court and

subsequently moved to dismiss for lack of jurisdiction due to Ms. Luciani’s

failure to effect proper service. The district court denied defendants’ motion and

gave Ms. Luciani until December 29, 2006, to effect proper service. The court

directed defendants to respond within thirty days from the date of service.

      On December 27, 2006, Ms. Luciani served defendants, who on January 16,

2007, again moved to dismiss. Ms. Luciani answered the motion to dismiss, not

by addressing its merits, but by arguing that it was untimely. She asserted that

because the court’s initial pretrial report (IPTR) set December 28, 2006, as the

deadline for filing all non-discovery, pretrial motions, defendants’ motion to



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                        -2-
dismiss was filed too late. The court rejected her contention and dismissed the

complaint with prejudice because it failed to comply with Fed. R. Civ. P. 8(a) and

failed to state a claim for relief. Now on appeal, Ms. Luciani maintains that the

motion to dismiss was untimely because the IPTR governed the deadline to

respond to her complaint. 1

      The district court’s decision to modify the IPTR-deadline was a function of

the court’s authority to manage its docket, which we review for an abuse of

discretion. See Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d

982, 985 (10th Cir. 2002). Ms. Luciani’s argument is patently without merit. The

court modified the December 28, 2006, IPTR-deadline because Ms. Luciani did

not properly serve defendants. Modification of the original December 28 deadline

was obviated by the court’s order giving her until December 29 to perfect service.

Indeed, had the court not extended the deadline, defendants would have been

obligated to file their response before Ms. Luciani was required to serve them.

Moreover, under the original IPTR-deadline, defendants would have had only one

day to respond to the complaint. This is precisely why the court afforded

defendants thirty days after service to file their response. The court’s


1
      To support her position, Ms. Luciani invokes a prior version of
D.N.M.LR-Civ. 16.1 (amended Mar. 5, 2007), which provided, in part: “Any
deadlines established in the Initial Pretrial Report will govern actions in pretrial
matters once the report is entered by the Court. Any modifications of the
deadlines, whether or not opposed, will require a showing of good cause and
Court approval.”

                                         -3-
modification of the IPTR-deadline was clearly within its discretion. Although

Ms. Luciani insists she ought to be given the opportunity to address the merits of

the motion to dismiss, she waived her opportunity when she failed to make her

arguments in the district court. See Rosewood Servs., Inc. v. Sunflower

Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005) (finding waiver

where argument not raised in district court).

      Accordingly, the judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Wade Brorby
                                                    Senior Circuit Judge




                                         -4-
