                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 24 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


DAVID ZAIRE TERRY; MARGARET                      No. 12-15563
SHAVIES-ALLEN,
                                                 D.C. No. 2:10-cv-02212-DGC
               Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

AAA ARIZONA, named Arizona
Automobile Association (AAA) on
amended complaint; AAA ARIZONA
INCORPORATED,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                              Submitted June 18, 2013**

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       David Zaire Terry and Margaret Shavies-Allen appeal from the district

court’s judgment dismissing their employment action alleging racial

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discrimination, harassment, and retaliation in violation of federal and state law.

We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of

discretion the district court’s dismissal for failure to serve the summons and

complaint in a timely manner, Oyama v. Sheehan (In re Sheehan), 253 F.3d 507,

511 (9th Cir. 2001), and we affirm.

      The district court did not abuse its discretion by dismissing the action

because plaintiffs did not serve the summons and complaint on defendants within

15 months of filing suit, even though the court gave extensions and warned that

failure to complete service in a timely manner could result in dismissal, and

plaintiffs were represented by counsel during the last six months of litigation. See

Fed. R. Civ. P. 4(m) (requiring service within 120 days of filing the complaint); In

re Sheehan, 253 F.3d at 512-13 (discussing the good cause standard and the district

court’s broad discretion to extend time for service or dismiss without prejudice).

We construe the dismissal as a dismissal without prejudice. See Fed. R. Civ. P.

4(m) (dismissal for failure to serve in a timely manner is without prejudice).

      Moreover, the district court did not abuse its discretion by striking plaintiffs’

second response to defendants’ motion to dismiss because the federal and local

rules did not permit a second response, and plaintiffs did not seek leave of court to

file it. See Preminger v. Peake, 552 F.3d 757, 769 n.11 (9th Cir. 2008) (setting


                                           2                                     12-15563
forth the standard of review for a district court’s decision concerning its

management of litigation); United States v. W.R. Grace, 526 F.3d 499, 509 (9th

Cir. 2008) (en banc) (noting that “[d]istrict courts have inherent power to control

their dockets” and that “judges exercise substantial discretion over what happens

inside the courtroom” (citations and internal quotation marks omitted)).

      Plaintiffs’ contention that the district court erred by not sua sponte quashing

the motion to dismiss is unpersuasive.

      AFFIRMED.




                                           3                                   12-15563
