Hasselbrock v. Wilson

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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
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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 . . .
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(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.
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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
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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.
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