Kirui #371864 v. Leon et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kenneth Kiprono Kirui,
Plaintiff,
v.
Unknown Leon, et al.,
Defendants.
No. CV-25-02012-PHX-KML (ASB)
REPORT AND RECOMMENDATION
TO HON. KRISSA M. LANHAM, UNITED STATES DISTRICT JUDGE:
Recently, the Court issued an Order to Show Cause as to Plaintiff. (Doc. 22.)
Specifically, the Court directed Plaintiffs to show cause for failure to serve Defendants
Leon, Coluarus, and Kirk within 14 days or the matter could be dismissed as to those
Defendants. (Id.) Plaintiff did not file any response to that Order, and this Report and
Recommendation follows.
I. BACKGROUND
Plaintiff filed the instant pro se civil rights action on June 10, 2025, and he filed his
First Amended Complaint on September 9, 2025. (Docs. 1, 8.) In its October 31, 2025
Order, the Court ordered Plaintiff to serve Defendants Leon, Coluarus, Kirk, and Kent no
later than 90 days from the filing of the First Amended Complaint or within 60 days from
the date that Order was filed, whichever was later, or “the action may be dismissed as to
each Defendant not served. Fed. R. Civ. P. 4(m).” (Doc. 11 at 10.) The matter was referred
to undersigned for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). (Id.
at 12.) Plaintiff was directed to return service packets for service on the four Defendants
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(id. at 10), and the packets were returned.1 However, as to Defendants Leon, Coluarus, and
Kirk, service was returned as unexecuted. (Docs. 16-18.) Specifically, as to Defendant
Leon, service was returned as unexecuted because there were “multiple employees with
this last name.” (Doc. 18.) As to Defendants Coluarus and Kirk, service was returned as
unexecuted because there was “no employee with this name.” (Docs. 16-17.)
Plaintiff filed a document styled “Entry of Default” on December 4, 2025, in which
Plaintiff requested default be entered against Defendants. (Doc. 13.) Plaintiff contended
default was appropriate because Defendants had failed to respond after being served. (See
id.) In an Order dated December 8, 2025, the Court denied that request, noting that service
had not been completed. (Doc. 14.)
On January 16, 2026, the Court issued an Order to Show Cause (“OSC”) for failure
to timely serve Defendants Leon, Coluarus, and Kirk under Rule 4(m) of the Federal Rules
of Civil Procedure. (Doc. 22.) The docket in this matter reflects that Plaintiffs filed
nothing in response to that Order. No indication of service being executed on any of those
three Defendants appears on the docket after those docket entries. The time to respond and
to file proof of service has passed. Against that backdrop, undersigned addresses Plaintiff’s
failure to serve the named Defendants Leon, Coluarus, and Kirk.
II. ANALYSIS
A. Applicable Law
In this action, Rule 4 of the Federal Rules of Civil Procedure governs the time limit
for service of a complaint. That Rule provides:
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.
Thus, the question before the Court is whether Plaintiff has shown good cause for the
failure to timely serve Defendants Leon, Coluarus, and Kirk. If good cause is shown, time
1 Service was executed on Defendant Kent, and this litigation has continued as to him.
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must be extended. Id.
In the Ninth Circuit, “[a]t a minimum, good cause means excusable neglect.” In re
Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (brackets in original) (internal quotation marks
and citations omitted). Negligence and ignorance of the Rules is not good cause. See
Townsel v. Contra Costa Cnty., Cal., 820 F.2d 319, 320-21 (9th Cir. 1987). When
determining whether a plaintiff has shown good cause, the Court has broad discretion, and
there is no specific test to apply. In re Sheehan, 253 F.3d at 513. However, the Court can
consider whether a plaintiff has shown: “(a) the party to be served 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. at 512 (quoting Boudette v.
Barnette, 923 F.2d 754, 756 (9th Cir. 1991)). The Court may also consider whether service
was eventually effectuated. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). The
Rule 4 provisions should be given a liberal and flexible construction. See Borzeka v.
Heckler, 739 F.2d 444, 447 (9th Cir. 1984). Public policy favors resolution of matters on
their merits. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). However,
the Court’s discretion under Rule 4(m) is not “limitless.” Efaw, 473 F.3d at 1041.
B. Analysis
Here, Plaintiff has not responded to the Court’s Order to Show Cause, and Plaintiff
has not served Defendants Leon, Coluarus, and Kirk as instructed by the Court’s Screening
Order. Arguably, the Court’s inquiry could end there. In order to provide a more complete
analysis for the District Judge, however, undersigned will analyze the above factors.
After carefully considering the record and the applicable case law, undersigned
cannot conclude good cause for failure to serve has been shown. First, there is no indication
from the docket that Defendants Leon, Coluarus, and Kirk have actual notice of this action.
Regarding prejudice, undersigned notes that this case has been pending eight months and
there is no indication on the record that service is forthcoming. In short, this matter is no
further along with respect to Defendants Leon, Coluarus, or Kirk than it was when it was
filed. Delay may result in prejudice to defendants’ ability to effectively defend against
claims made against them. See Efaw, 473 F.3d at 1041 (finding delay could result in
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prejudice to defendants). Undersigned cannot find Plaintiff would be severely prejudiced
by dismissal, as no such prejudice has been articulated by Plaintiff. In recommending
dismissal for lack of service, undersigned recognizes public policy favors resolution on the
merits. However, Plaintiff has failed to show good cause, much less argue that good cause
even exists.
Consequently, on the record before it, undersigned will recommend to the District
Judge that this action be dismissed without prejudice for lack of service as to Defendants
Leon, Coluarus, and Kirk only.
Finally, undersigned notes that dismissal may be appropriate for failure to comply
with the Court’s Orders. Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a
district court may dismiss an action due to a plaintiff’s failure to prosecute or to comply
with court orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (a court’s
authority to dismiss for lack of prosecution is necessary to prevent undue delays in the
disposition of pending cases and to avoid congestion in the calendars of the district courts);
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (1992) (a district court may dismiss an action for
failure to comply with any order of the court).
III. RECOMMENDATION
For the foregoing reasons,
IT IS RECOMMENDED that the Court find Plaintiff has failed to show good
cause for failure to serve Defendants Leon, Coluarus, and Kirk, and enter an order
dismissing the action without prejudice as to Defendants Leon, Coluarus, and Kirk under
Rule 4(m) of the Federal Rules of Civil Procedure.
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
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 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.
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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
recommendation. See Fed. R. Civ. P. 72.
Dated this 19th day of February, 2026.
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