USCA1 Opinion

       [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]



                 United States Court of Appeals

                     For the First Circuit











No. 98-1891



                         ELVIN A. BURKE,



                      Plaintiff, Appellant,



                                v.



                     CITY OF BOSTON, ET AL.,



                      Defendants, Appellees.

                                             







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Edward F. Harrington, U.S. District Judge]









                              Before



                      Lipez, Circuit Judge,

                                

          Aldrich and Kravitch, Senior Circuit Judges.

                                

                                

                                

                                



     James P. Duggan for appellant.

     Dawna McIntyre, Assistant Corporation Counsel, City of Boston

Law Department, with whom Merita A. Hopkins, Corporation Counsel,

was on brief for appellees.









July 2, 1999







  Per Curiam.  Plaintiff Elvin Burke sued the City of

Boston and four Boston police officers, alleging a violation of the

Massachusetts Tort Claims Act, several intentional torts, and

violations of state and federal civil rights laws.  After

plaintiff's properly serving the City, but failing to serve the

four individual defendants within the requisite time period, the

district court dismissed his claims against all defendants.  We

affirm in part and reverse in part.

  The present action arose from events allegedly taking

place on October 10, 1994.  Burke maintains that he was unlawfully

detained, arrested, and beaten by uniformed Boston police officers

while he was shopping at an Auto Palace in Roslindale,

Massachusetts.  He was subsequently charged with several assault

and battery counts, among others, but all charges were dismissed

for want of prosecution on April 3, 1995.

  On July 3, 1997, Burke filed a complaint in the state

court, naming the four officers and the City of Boston.  He alleged

that the City was liable for negligent supervision under the

Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258, and that

all five defendants had committed state and federal civil rights

violations, and he accused the four officers of assault and

battery, civil conspiracy, false arrest, and malicious prosecution. 

Service was made on the City on July 25, and the City removed the

case to the district court on August 11 and filed its answer on

October 29.  At that point, the four officers had not yet been

served, and they still had not been served at the time of the first

scheduling conference on December 8.  During that conference,

counsel for the City stated to the court with Burke's counsel

present that the four officers still had not been served.  On April

9, 1998, the four officers filed a motion to dismiss for failure to

serve them, and the court allowed the motion on May 15.  The court

also dismissed the claims against the City of Boston "on the ground

that the case has now been dismissed against all the employees of

the City of Boston."  Burke did not respond to the officers'

initial motion, but filed a motion to vacate the order of dismissal

on June 3.  The officers and the City filed a response on June 12,

and Burke filed his supporting memorandum on June 18.  The court

denied the motion.

  Burke now asks us, first, to reverse the dismissal of his

claims against the four individual officers.  This we decline to

do.  Federal Rule 4(m) applies here since no service was made prior

to removal, see 28 U.S.C.  1448, and it requires dismissal if

service is not made within 120 days of the filing of the complaint

unless the plaintiff shows "good cause" for the failure.  We review

a district court's determination on this question for abuse of

discretion.  See Benjamin v. Grossnick, 999 F.2d 590, 591 (1st Cir.

1993).  Burke made no response to the officers' motion to dismiss,

instead filing a motion to vacate over two weeks after the district

court ordered dismissal and a supporting memorandum another two

weeks later, several days after the officers filed their

opposition.  The factors Burke discussed in those filings--the

merits of his case, the assertion that the police officers knew

that they were being sued, his participation in a court-ordered

scheduling conference, and his willingness to make expeditious

service--can hardly be considered reasons, much less "good cause,"

for counsel, as he admitted at oral argument, simply forgetting to

serve the four officers.

  Burke claims dismissal on the basis of a technicality

despite the absence of prejudice to the defendants and his

willingness to make expeditious service was contrary to the spirit

of the Federal Rules.  He misconstrues the nature of the current

situation and the applicability of our precedents.  It is true that

we would not require dismissal where a minor, technical error

resulted in defective service of process but the defendant was not

prejudiced.  See, e.g., Libertad v. Welch, 53 F.3d 428, 440 (1st

Cir. 1995); Roque v. United States, 857 F.2d 20, 22 (1st Cir.

1988).  However,  there must first be substantial compliance.  See

Precision Etchings & Findings v. LGP Gem, Ltd., 953 F.2d 21, 24

(1st Cir. 1992).  Such was entirely lacking here.  This was a case

not of defective service but of no service at all, and the lack of

prejudice to the defendants (assuming there was none) cannot negate

counsel's fundamental failure.

  The claims against the City are a different matter.  The

City did not seek dismissal of the claims against it.  Even after

dismissal without prejudice of all the claims against the

individual officers, there remained an allegation of federal

constitutional violations by the City.  The district court also had

supplemental jurisdiction over the two state law claims against the

City.  See 28 U.S.C.  1367.  Given these circumstances and the

fact that the City was properly served, it was improper for the

district court to dismiss Burke's claims against it.

  The City's citation to Los Angeles v. Heller, 475 U.S.

796, 798-99 (1986), is misplaced.  Here there has not been a

finding on the merits that Burke suffered no constitutional injury,

and he may show one even without the officers as individual party

defendants.

  For the reasons stated, we affirm the district court's

dismissal of Burke's claims against the four individual Boston

police officers.  We reverse the dismissal of Burke's claims

against the City of Boston and remand for further proceedings

consistent with this opinion.