                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 25 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ABDUL AZIZ,

                Plaintiff-Appellant,

    v.                                                   No. 00-1352
                                                     (D.C. No. 98-D-2523)
    ALBERT A. ROSA,                                        (D. Colo.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Abdul Aziz appeals from the district court’s order denying his

motion to remand the underlying case to state court. Because the district court

dismissed this case in December of 1999 and plaintiff failed to appeal from that

order, we dismiss this appeal for lack of jurisdiction.

       Plaintiff filed a complaint in tort against defendant Rosa in federal district

court. After initial service on   defendant was quashed as insufficient under

Fed. R. Civ. P. 4(e), plaintiff failed to effect service within the 120-day time

period set out in Fed. R. Civ. P. 4(m). The district court issued an order allowing

plaintiff an opportunity to demonstrate good cause for the failure to effect

service, to which he did not respond. On December 22, 1999, the court dismissed

the action without prejudice. On January 28, 2000, plaintiff filed a motion to

remand the case to state court.   1
                                      However, he did not appeal from the district

court’s dismissal of his case. The district court denied the motion to remand as

moot in an order dated August 15, 2000. It is from this order that plaintiff now

seeks to appeal.

       On appeal, plaintiff continues to argue the merits of his underlying

claims, and appears to believe that the district court granted summary

judgment to defendant or dismissed the case for failure to state a claim under


1
      Defendant’s response to this motion notes that Aziz had confused this case
with another case filed in state court in which Aziz asserted the same claims
against defendant. That case, No. 99-D-2216, was removed to federal court.

                                             -2-
Fed. R. Civ. P. 12(b)(6). Neither of those characterizations is correct. The

district court dismissed   plaintiff ’s case without prejudice because he did not

respond to the court’s show cause order regarding his failure to effect proper

service on defendant.

       Because plaintiff failed to appeal the district court’s final order in this case,

and because his motion to remand was not a post-judgment motion which would

toll the time for taking an appeal, we conclude that we lack appellate jurisdiction

over this case.   See Rodgers v. Wyo. Atty. Gen. , 205 F.3d 1201, 1204 (10th Cir.

2000) (“This court cannot exercise jurisdiction absent a timely notice of appeal.”)

(quotation omitted). The appeal is DISMISSED. All pending motions are

DENIED.


                                                       Entered for the Court



                                                       Michael R. Murphy
                                                       Circuit Judge




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