Theo Smith v. Ghana Commercial Bank, Ltd., et al

Filing

PER CURIAM OPINION FILED - THE COURT: JAMES B. LOKEN, KERMIT E. BYE and BOBBY E. SHEPHERD (UNPUBLISHED) [3673735] [09-3615]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 09-3615
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Theo Smith,
Appellant,
v.
Ghana Commercial Bank, Ltd.;
The Republic of Ghana,
Appellees.

*
*
* Appeal from the United States
* District Court for the
* District of Minnesota.
*
*
[UNPUBLISHED]
*
*
*
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Submitted: June 4, 2010
Filed: June 14, 2010
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Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Theo Smith appeals the district court’s order denying his motion for a default
judgment, denying his motion to disqualify opposing counsel, and dismissing his civil
action for lack of personal jurisdiction because he failed to properly serve either
defendant, Ghana Commercial Bank, Ltd., and the Republic of Ghana.
Upon de novo review, we agree with the district court that Smith failed to effect
service of process, and that the court thus lacked personal jurisdiction over defendants.
See Vandelune v. 4B Elevator Components Unlimited, 148 F.3d 943, 948 (8th Cir.)
(standard of review), cert. denied, 525 U.S. 1018 (1998). Because Smith failed to

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serve defendants properly, we conclude the court did not abuse its discretion in
denying his motion for default judgment. See Norsyn, Inc. v. Desai, 351 F.3d 825,
828 (8th Cir. 2003). Finally, the court did not abuse its discretion in denying his
motion to disqualify opposing counsel because Smith failed to show a prior attorneyclient relationship with any lawyer in that firm. See Petrovic v. Amoco Oil Co., 200
F.3d 1140, 1154 (8th Cir. 1999) (standard of review).
However, the court erred in dismissing Smith’s claims with prejudice because
a dismissal for lack of jurisdiction on account of improper service is not an
adjudication on the merits and therefore should be without prejudice. See Ahmed v.
United States, 147 F.3d 791, 797 (8th Cir. 1998); Johnson v. Boyd-Richardson Co.,
650 F.2d 147, 148 (8th Cir. 1981). Because Smith has filed multiple meritless actions
in the District of Minnesota raising similar claims, we remand to the district court to
determine whether and, if so, the extent to which Smith should be precluded from
filing additional claims in that court or in the United States.
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Date Filed: 06/14/2010 Entry ID: 3673735