Opinion
No. 85-5728.
July 15, 1987.
Peter J. Ferguson, Santa Ana, Cal., for plaintiffs-appellants.
David Cathcart, Newport Beach, Cal., for defendants-appellees.
Before KENNEDY, BEEZER and HALL, Circuit Judges.
ORDER
Pursuant to an Order by the United States Supreme Court dated June 22, 1987, ___ U.S. ___, 107 S.Ct. 3224, 97 L.Ed.2d 731, the judgment of this court filed on October 21, 1986, as amended on December 30, 1986, is VACATED and this case is REMANDED for further proceedings in light of West v. Conrail, ___ U.S. ___, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987).
We note that in West, each defendant "acknowledged service on dates" within the requirements of Rule 4(j) of the Federal Rules of Civil Procedure. Id. at 1540. On remand the district court should therefore consider what effect, if any, the plaintiffs' failure to secure service of the first complaint has on the outcome. See id. at 1541, 1542 nn. 5-7 (holding that the service requirements of Rule 4(j) apply to complaints which toll the statute of limitations).
The motion to recall the mandate is DENIED as moot.