MEMORANDUM*

This is an appeal from the district court's order denying appellant Quigley's motion to remand this case to the state court and granting defendants' motion for dismissal of Quigley's action. We affirm.

* Quigley was employed by the City of San Diego as a police officer from 1968 until his termination from that job in 1984. On June 17, 1985, Quigley filed a complaint in the Superior Court of California, naming as defendants the City of San Diego, Chief of Police William Kolender, several members of the San Diego police department, and forty-five Does. The complaint alleged breach of contract, fraud, and intentional infliction of emotional distress. For almost three years, defendants were never served with the complaint.

On June 7, 1988, almost three years after the original filing, Quigley filed and served an amended complaint alleging two federal causes of action in addition to the aforementioned state claims. Defendants removed the case to federal district court pursuant to 28 U.S.C. Secs. 1331 and 1441 and thereafter moved to dismiss the action for failure to prosecute. Quigley moved for remand to state court.

Both the motion to dismiss and the motion for remand came before the district court for hearing on October 17, 1988. The court requested that Quigley's counsel submit additional medical reports diagnosing Quigley's mental and emotional condition during the almost-three-year period in which service of process was not attempted or effected. The hearing was continued until November 7, 1988; on that date, the court granted Quigley's counsel thirty days in which to respond to supplemental filings by the defendants. The motions came on for hearing again on December 19, 1988.

On January 17, 1989, the district court filed a six-page memorandum decision and order, denying Quigley's motion for remand and granting the defendants' motion to dismiss the action with prejudice. Quigley timely appeals; we have jurisdiction under 28 U.S.C. Sec. 1291.

Quigley first argues that the district court erred in denying his motion to remand to state court. He argues that his amended complaint raises state tort claims which should have been heard by a state court and that the interests of fundamental fairness and judicial economy would be best served if the entire action were to be heard in state court. We disagree.

The district court had jurisdiction over Quigley's federal claims under 28 U.S.C. Sec. 1331. The court therefore had the power to hear Quigley's state claims under the doctrine of pendent jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). Furthermore, the court considered the appropriate factors in making the determination to exercise that power. Compare Quigley v. City of San Diego, No. CV-88-1018-JLI, Memorandum Decision and Order at 3 (S.D.Cal. Jan. 17, 1989) with United Mine Workers, 383 U.S. at 726-27. We agree with the district court's analysis of those factors and therefore conclude that it did not err in denying Quigley's motion to remand.

Quigley next argues that the district court erred in granting defendants' motion to dismiss his action. He argues that his almost-three-year delay in effecting service on the defendants is excusable because during that period he was "unable to cope with the realities of daily life." Appellant's Brief at 14. He further contends that the district court's dismissal is error because the defendants did not show actual prejudice arising from the delay. We reject these arguments.

Under California law, a court "may in its discretion dismiss an action for delay in prosecution ... if to do so appears to the court appropriate under the circumstances of the case." Cal.Code Civ.Proc. Sec. 583.410(a) (West Supp.1990). If a court has exercised its discretion and ordered such a dismissal, the ruling may not be disturbed on appeal " 'unless a clear case of abuse is shown and unless there has been a miscarriage of justice.' " Blank v. Kirwan, 39 Cal.3d 311, 331, 703 P.2d 58, 71, 216 Cal.Rptr. 718, 731 (1985) (quoting Denham v. Superior Court, 2 Cal.3d 557, 566, 468 P.2d 193, 199, 86 Cal.Rptr. 65, 71 (1970)).

One instance where such a dismissal is permissible is when "[s]ervice is not made within two years after the action is commenced against the defendant." Cal.Code Civ.Proc. Sec. 583.420(a)(1) (West Supp.1990). When a delay exceeding two years has occurred between the filing of a complaint and service on the defendant, the plaintiff has the burden of showing that the delay is excusable. Clark v. Stabond Corp., 197 Cal.App.3d 50, 55, 242 Cal.Rptr. 676, 678 (1987). The district court here determined that Quigley had not met that burden.

The district court did not abuse its discretion in determining that Quigley's delay was not excusable. While Quigley presented some evidence about his alleged inability "to cope with the realities of daily life," there was also countervailing evidence. For instance, Quigley pursued numerous job applications in the almost-three-year period at issue. An ability and willingness to apply for so many jobs lends support to the district court's decision. Similarly, as the district court noted, Quigley was involved in three different lawsuits in the time period here at issue. While the particular circumstances of each lawsuit varied from both one another and the instant case, Quigley's involvements indicate an ability to recognize and act upon the realities of daily life.

Nor did the district court err in dismissing Quigley's action even though defendants did not demonstrate prejudice from the delay. Lack of prejudice to a defendant is a valid consideration for a court ruling on a motion to dismiss for delay in service of process. Schumpert v. Tishman Co., 198 Cal.App.3d 598, 604-07, 243 Cal.Rptr. 810, 813-15 (1988). The absence of prejudice, however, does not ipso facto render a court's order of dismissal an abuse of discretion. See Blank, 39 Cal.3d at 332, 703 P.2d at 71-72, 216 Cal.Rptr. at 731 (affirming a trial court's discretionary grant of a motion to dismiss for failure to prosecute, even though defendants apparently made no showing of prejudice). To the extent that Hurtado v. Statewide Home Loan Co., 167 Cal.App.3d 1019, 213 Cal.Rptr. 712 (1985), is to the contrary, Blank overruled it. See, e.g., Schumpert, 198 Cal.App.3d at 605-06, 243 Cal.Rptr. at 814 ("[C]ourts have recognized that the Hurtado rationale is irreconcilable with Blank and should not be followed."); Longshore v. Pine, 176 Cal.App.3d 731, 736, 222 Cal.Rptr. 364, 366 (1986) ("[U]nder the rule affirmed in Blank there was no requirement that the defendant here make a showing of prejudice before the action could be dismissed for delay in prosecution").

In short, we conclude that Quigley has not demonstrated that the district court's order of dismissal of his action constituted "a clear case of abuse [of discretion] ... and ... a miscarriage of justice." Blank, 39 Cal.3d at 331, 703 P.2d at 71, 216 Cal.Rptr. at 731 (quotation omitted). In so concluding, we emphasize that the discretion is the district court's, not ours, and we may not substitute the latter for the former when there has been no abuse.

AFFIRMED.