3:25-cv-08195•Hasselbrock v. Wilson
Gesamter Gesetzestext
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Eric Lee Hasselbrock, Plaintiff, v. John Scott Wilson, Defendant. No. CV-25-08195-PCT-JJT (MTM) REPORT AND RECOMMENDATION TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE: I. Summary of Conclusion This matter is before the Court on its own review. Plaintiff failed to effect service on Defendant and the service deadline has expired. Accordingly, the Court will recommend that Plaintiff’s claims against Defendant be dismissed without prejudice under Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure. II. Background Self-represented Plaintiff Eric Lee Hasselbrock, who is not in custody and has paid the filing and administrative fees for this action, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 and a Motion for Service of Summons. (Doc. 6.) In its screening Order, the Court stated, in pertinent part, “Plaintiff asks the Court to order the United States Marshal to serve the Summons and Complaint. Rule 4(c)(3) of the Federal Rules of Civil Procedure requires the Court to do so ‘if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 1915 . . . .’ Plaintiff has paid the filing and administrative fees Case 3:25-cv-08195-JJT Document 18 Filed 01/29/26 Page 1 of 5
- 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and is not proceeding in forma pauperis. Accordingly, the Court will deny Plaintiff’s Motion for Service of Summons.” (Id.) The Court further stated, “[i]f Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed. Fed. R. Civ. P. 4(m).” (Id.) The record reflecting that service was not completed in that service by certified mail is not an acceptable form of service under the Federal Rules of Civil Procedure, the Court issued an Order on January 5, 2026, stating, in pertinent part, [U]nder Rule 4(m) of the Federal Rules of Civil Procedure, the plaintiff must serve a defendant with a summons and a copy of the complaint “within 90 days after the complaint is filed.” Fed. R. Civ. P. 4(m). If the plaintiff fails to do so, the court must either dismiss the complaint without prejudice against that defendant or order that service be made within a specified time. Id. Accordingly, Plaintiff has 10 days from the date of this Order to show cause why this action should not be dismissed for failure to serve. (Doc. 15.) On January 6, 2026, Plaintiff filed a document entitled “motion for default judgement,” and on January 15, 2026, Plaintiff filed a document entitled “application for entry of default” again claiming that he served Defendant by certified mail. (Docs. 16, 17.) Finding that Plaintiff has failed to properly effect service on Defendant pursuant to the federal rules, and the time for doing so having expired, the Court will determine whether dismissal is appropriate. III. Discussion a. Rules 4(e) and 4(m) As an initial matter, Plaintiff has failed to properly and timely serve Defendant under Rule 4(e) and Rule 4(m) of the Federal Rules of Civil Procedure, which state the following: Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by . . . Case 3:25-cv-08195-JJT Document 18 Filed 01/29/26 Page 2 of 5
- 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process . . . . If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(e), (m). Good cause to avoid dismissal may be demonstrated by establishing, at minimum, excusable neglect. See Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). In addition to excusable neglect, a plaintiff may be required to show the following factors to bring the excuse to the level of good cause: “(a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.” Id. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). Here, Plaintiff has neither filed proper proof of service on Defendant nor shown good cause why the action should not be dismissed. Accordingly, the Court will recommend the action be dismissed without prejudice for failure to serve under Rule 4(m) of the Federal Rules of Civil Procedure. b. Rule 41(b) Plaintiff’s action may also be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure, for failure to comply with this Court’s Orders. Rule 41(b) of the Federal Rules of Civil Procedure provides “[i]f the plaintiff fails to comply with these rules or any order of court, a defendant may move to dismiss the action or any claim against it.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute. Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or hearing. See id. at 633. Case 3:25-cv-08195-JJT Document 18 Filed 01/29/26 Page 3 of 5
- 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In determining whether Plaintiff’s failure to prosecute warrants dismissal of the case, the Court must weigh the following five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). Here, the first, second, and third factors favor dismissal of this case. Plaintiff’s failure to effect service on Defendant as directed, prevents the case from proceeding against him in the foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to consider whether a less drastic alternative is available. The Court has already ordered Plaintiff to show cause why this matter should not be dismissed and Plaintiff has not complied. The Court finds that only one less drastic sanction is realistically available. Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the merits “[u]nless the dismissal order states otherwise.” In the instant case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. Therefore, the Court will recommend dismissal of this action without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Accordingly, IT IS RECOMMENDED that Plaintiff’s “motion for default judgement” and “application for entry of default” (Docs. 16, 17) be DENIED; IT IS FURTHER RECOMMENDED that Plaintiff’s Complaint (Doc. 1) be dismissed without prejudice under Fed. R. Civ. P. 4(m) and Fed. R. Civ. P. 41(b). This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Case 3:25-cv-08195-JJT Document 18 Filed 01/29/26 Page 4 of 5
- 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appellate Procedure, should not be filed until entry of the district court’s judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party’s right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report and Recommendation. See Fed. R. Civ. P. 72. Dated this 28th day of January, 2026. Case 3:25-cv-08195-JJT Document 18 Filed 01/29/26 Page 5 of 5
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