                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                   November 26, 2013
                   UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court



 CHRISTOPHER NATHANIEL
 WASHINGTON,

              Plaintiff-Appellant,
                                                         No. 13-3098
 v.                                         (D.C. No. 6:12-CV-01056-JTM-KMH)
                                                          (D. Kan.)
 MARY CORREIA,

              Defendant-Appellee.



                           ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Proceeding pro se, 1 Christopher Washington, a California state inmate,

appeals from the district court’s dismissal of his contract and fraud action against


      *
             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      This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      1
             Because Mr. Washington is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
Mary Correia for failure to effect service of process. For the reasons that follow,

we affirm the district court’s rulings.

                                           I

      While imprisoned in California, Mr. Washington filed a diversity suit

against Mary Correia in the District of Kansas, alleging breach of contract and

fraud. The clerk’s office directed Mr. Washington to provide Ms. Correia’s

address so that she could be served. When it emerged that Mr. Washington did

not have the address, the district court granted him an extension to obtain it but

declined to allow him discovery tools to get the address from the apartment

manager of Ms. Correia’s former apartment. Mr. Washington later offered an

address for Ms. Correia, but the summons was returned unexecuted. More than a

year having passed from the filing of the complaint with no effectuation of

service in sight, the district court dismissed the action without prejudice pursuant

to Federal Rule of Civil Procedure 4(m).

                                          II

      On appeal, Mr. Washington raises the following issues: (1) the district

court erred in failing to order expedited discovery; (2) the district court erred in

denying Mr. Washington’s request for a finding of constructive service; and (3)

the district court violated Mr. Washington’s constitutional rights. We take

up—and reject—each argument in turn.




                                           2
                                          A

      The district court denied Mr. Washington’s request for expedited discovery

to allow him to ascertain Ms. Correia’s address, reasoning that he had failed to

make a “concrete showing of a prima facie claim.” R. at 53 (Mem. & Order, filed

Sept. 10, 2012) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d

Cir. 2010)) (internal quotation marks omitted). The district court further reasoned

that Mr. Washington had failed to demonstrate that he had explored other means

to obtain Ms. Correia’s address, such as consulting phone directories and

conducting Internet searches.

      Mr. Washington now insists he was entitled to early discovery. He makes

no argument to this effect other than to reiterate his belief that the apartment

manager knows Ms. Correia’s current address, and to flatly state that he alleged

sufficient facts to entitle him to the discovery order he sought. These arguments,

such as they are, have no merit.

      “We review the district court’s discovery order for abuse of discretion.”

McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 703 (10th Cir. 2012) (quoting

Trentadue v. FBI, 572 F.3d 794, 806 (10th Cir. 2009)) (internal quotation marks

omitted). It was well within the court’s discretion to decline to authorize

expedited discovery. As an initial matter, the district court’s application of the

Arista Records test, see 604 F.3d at 119, was reasonable, as its description of the

complaint and Mr. Washington’s filings was accurate. Additionally, it is not clear

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that a plaintiff has any right to discover the address of an identified defendant

before the defendant is served, as Arista Records and similar cases dealt with

attempts to identify an unknown defendant operating anonymously on the Internet,

which represents a very different circumstance and a world unto itself. See id. at

112 (involving an appeal from denial of a motion “to quash a subpoena served on

his Internet service provider to obtain information sufficient to disclose his

identity”). See generally Robert G. Larson & Paul A. Godfread, Bringing John

Doe to Court: Procedural Issues in Unmasking Anonymous Internet Defendants,

38 Wm. Mitchell L. Rev. 328, 330 (2011) (“Without a clearly identifiable

defendant, a plaintiff has little chance of recovery, and while anonymous

defendants are not a phenomenon unique to the Internet, the prevalence of the

Internet in modern society has exacerbated this problem.”). In light of the district

court’s reasonable findings regarding Mr. Washington’s complaint and his failure

to pursue other means to determine the address, and in light of the fact that no

authority made clear that Mr. Washington had any right to the discovery he

sought, the district court did not abuse its discretion in denying expedited

discovery.

                                          B

      Mr. Washington appears to believe he constructively served Ms. Correia,

and that it was therefore unnecessary for him to effectuate personal service. He

presents no argument or authorities in support. “We review under an abuse-of-

                                          4
discretion standard the decision to dismiss a defendant for failure of proper

service.” Constien v. United States, 628 F.3d 1207, 1213 (10th Cir. 2010)

(quoting Bolden v. City of Topeka, 441 F.3d 1129, 1146 (10th Cir. 2006))

(internal quotation marks omitted). Given that Mr. Washington has not claimed

that he published the complaint or the like, the only theory of constructive service

that we can conceive of him relying upon is that it was sufficient that the

summons was dropped in the mail, no matter that it was returned unread.

However, the law of Kansas applies to the question, Fed. R. Civ. P. 4(e)(1), and it

does not subscribe to such a theory, see Owen Lumber Co. v. Chartrand, 157 P.3d

1109, 1115 (Kan. 2007). There was no constructive service, and the district court

plainly did not abuse its discretion in dismissing the action for failure to serve.

                                           C

      Mr. Washington contends the district court violated the rights that he is

guaranteed under the Due Process Clause of the Fourteenth Amendment and

Article III, Section 2 of the U.S. Constitution. 2 Again, his brief is bereft of any

substantiation for this assertion. Article III, Section 2 sets forth the jurisdiction

of the federal courts and has no apparent relationship to Mr. Washington’s case.



      2
             Mr. Washington also makes a bald reference here to a purported
violation of his rights under the Seventh Amendment. However, Mr. Washington
does nothing to demonstrate the relevance of the Seventh Amendment to his
circumstances and the relevancy of this provision is not patent to us.
Accordingly, we do not pursue this matter further.

                                           5
The only possible due-process claim that we can make out would be based on

denial of access to the courts. If we understand Mr. Washington to raise such a

claim, it fails. Where a litigant asserts that he has been impeded from accessing

the courts in violation of his due-process rights, we ask whether the impediment

“‘unduly’ burdens [the litigant’s] access to the judicial process, which in turn is

determined by balancing the interest [the litigant] seeks to assert in court against

the government’s interest in” creating the impediment. Otasco, Inc. v. United

States, 689 F.2d 162, 165 (10th Cir. 1982).

      The purely monetary interests Mr. Washington seeks to vindicate in his

complaint do not “touch on fundamental interests” and so weigh lightly on the

scale. Id. By contrast, the government has a significant interest in seeing that

judgments are only levied against parties who have been notified and allowed to

speak in their own defense. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815,

846 (1999) (discussing the connection between service of process and “our deep-

rooted historic tradition that everyone should have his own day in court” (quoting

Martin v. Wilks, 490 U.S. 755, 762 (1989)) (internal quotation marks omitted). In

fact, due-process concerns very clearly support the need for service-of-process

rules, id., not the need to ignore them. And, of course, it also furthers an

important governmental interest in conserving scarce judicial resources to place

the onus squarely on plaintiffs to track down the whereabouts of defendants to

effectuate service—rather than obliging the courts to assist in this

                                          6
endeavor—even when the plaintiffs are in prison. Cf. Sena v. Wackenhut Corp., 3

F. App’x 858, 861 (10th Cir. 2001) (upholding a district court’s dismissal

pursuant to Rule 4(m) where an incarcerated plaintiff was unable to find an

address at which to serve the defendant). Mr. Washington’s constitutional rights

were honored

                                        III

      For the reasons detailed above, we affirm the district court’s rulings.




                                              Entered for the Court



                                              JEROME A. HOLMES
                                              Circuit Judge




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