                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            JUN 3 1999
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 ROY A. DAY, on behalf of himself
 and as class action on behalf of others
 similarly situated,
             Plaintiff - Appellant,                     No. 98-4178
 v.                                               (D.C. No. 98-CV-72-G)
 IOMEGA CORPORATION; KIM B.                              (D. Utah)
 EDWARDS; and JIM SIERK,
             Defendants - Appellees.


                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the 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.

      Plaintiff Roy A. Day appeals the district court’s dismissal of his complaint

without prejudice for failure to serve pursuant to Rule 4(m) of the Federal Rules


      *
       This order and judgment is not binding precedent, except under the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.
of Civil Procedure.

      This case stems from a complaint filed by Plaintiff on May 28, 1998, in

which he alleged fraud and injury and requested money damages and declaratory

relief. Plaintiff subsequently filed a motion for a temporary restraining order or a

preliminary injunction. The magistrate judge recommended that the motion be

denied because Plaintiff did not demonstrate a likelihood of success on the merits

of his claims; he did not show that irreparable injury would result if the requested

relief was not granted; and his claims, alleged injury, and redress, if any, could be

determined in the regular course of litigation. After reviewing the magistrate

judge’s report and recommendation and Plaintiff’s objections thereto, the court

adopted the recommendation of the magistrate judge and denied Plaintiff’s motion

for a temporary restraining order or a preliminary injunction.

      On August 17, 1998, Plaintiff filed a motion for sanctions and a motion for

a default judgment against Defendants, claiming that they had failed to timely

appear. However, the district court ordered Plaintiff “to show cause why [the]

case should not be dismissed for failure to serve the defendants with the summons

and complaint within 120 days after the filing of the complaint” as required by

Rule 4(m) of the Federal Rules of Civil Procedure. R. at Doc. 14. The court

ordered Plaintiff to serve Defendants and file proof of service within ten days of

the date of the order, September 22, 1998. Plaintiff responded by claiming that he


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had timely served Defendants “pursuant to judicial economy, and the parties [had]

refused to answer in a timely manner,” id., Doc. 15 at 1, because they did not

respond to his request for waiver under Rule 4(d). He also asked the court to

grant his outstanding motions or, in the alternative, to grant him 365 days to serve

Defendants.

      In an Order filed September 30, 1998, the district court dismissed

Plaintiff’s complaint without prejudice, stating that Plaintiff not only failed to

advance any legitimate reason for his failure to comply with the Federal Rules of

Civil Procedure but also failed to serve Defendants pursuant to the show cause

order. In addition, the court indicated that Plaintiff did not show good cause to

persuade the court to grant him additional time to comply.

      Plaintiff then filed several motions requesting that the rules and statutes

relied upon by the federal courts be declared illegal and void. He also filed a

motion to vacate the court’s order dismissing his complaint, claiming that it was

fraudulent and that the district court judge was biased. Although the district court

had not yet ruled on these motions, Plaintiff filed a notice of appeal from the

September 30, 1998 Order and a motion for leave to proceed on appeal in forma

pauperis. The district court granted the motion to proceed on appeal in forma

pauperis, and this court issued an order abating the proceedings on appeal until

the district court disposed of Plaintiff’s outstanding motions.


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      In response to Plaintiff’s motion to vacate, the case was reassigned to a

different district court judge. After reassignment, the court affirmed the dismissal

Order filed on September 30, 1998, finding that Rule 4(d) did “not absolve

Plaintiff of the duty to serve defendants in accordance with” Rule 4(m). Id., Doc.

28 at 1. In his appeal to this court, Defendant submitted three motions: (1) to

declare void, null, and illegal the rules and statutes relied on by the district court;

(2) for a writ of mandamus to the Honorable Dale A. Kimball; (3) and for

summary reversal. In an Order filed November 23, 1998, this court advised

Plaintiff that any of his pleadings which did not comply with the Federal Rules of

Appellate Procedure and the Tenth Circuit Rules would be stricken and that his

petition for writ of mandamus is ineffective without a proper pleading and docket

fee. No parties have yet been served.

      Having thoroughly reviewed the record and Plaintiff-Appellant’s brief, we

conclude that Plaintiff’s appeal has no merit. First, Plaintiff never actually

requested Defendants to waive formal service under Rule 4(d). Although the

record contains several letters written by Plaintiff to Defendants informing them

of his displeasure with their product and of his commencement of a federal

lawsuit against them, none of the letters, nor any of Plaintiff’s other filings,

comport with the requirements of Rule 4(d)(2), the procedure by which a plaintiff

properly may request waiver of service. See Fed. R. Civ. P. 4(d)(2).


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      Second, and more importantly, even if Plaintiff had properly pursued a

waiver under Rule 4(d), the district court correctly reasoned that a defendant’s

failure to waive process under Rule 4(d) only results in the imposition of costs

subsequently incurred in effecting service when both parties are located within

the United States. Cf. Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933,

938 (5th Cir. 1999) (stating that if a defendant waives service of process, he must

answer or risk default). The intent of this rule is to eliminate the costs of formal

service of process while ensuring that a defendant obtains notice of the suit and

“to foster cooperation among adversaries and counsel.” Fed. R. Civ. P. 4

advisory committee notes, 1993 Amendments to Subdivision (d). At the same

time, however, the rule clearly contemplates that if a defendant refuses to waive

formal service of process, “the action will not otherwise proceed until formal

service of process is effected,” id., and the plaintiff is still subject to the time

limitations under Rule 4(m). As a result, even if Defendants had refused to waive

service of process, Plaintiff was required to formally serve process under Rule 4

and failed to timely do so.

      Finally, while we construe Plaintiff’s pro se pleadings liberally, see Riddle

v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996), his pro se status does not

excuse him from the obligation “to comply with the fundamental requirements of

the Federal Rules of Civil and Appellate Procedure.” Ogden v. San Juan County,


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32 F.3d 452, 455 (10th Cir. 1994), cert. denied, 513 U.S. 1090 (1995). Further,

contrary to Plaintiff’s argument, this court has never said that a party proceeding

in forma pauperis is relieved from the duty of complying with the federal

procedural rules nor have we stated that we construe the pleadings of an in forma

pauperis litigant liberally.

      For these several reasons, we affirm the district court’s dismissal of

Plaintiff’s complaint without prejudice.

      We also deny Plaintiff’s motion to declare invalid the rules and statutes by

which the federal courts operate, his motion for summary reversal, and his motion

for a writ of mandamus.

      AFFIRMED.

                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge




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