Ruiz v. Servbank NA et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Lazaro Ruiz,
Plaintiff,
v.
Servbank NA,
Defendant.
No. CV-26-00069-TUC-JGZ
ORDER
This action was commenced on February 3, 2026. (Doc. 1.) Plaintiff’s deadline to
serve expired on May 4, 2026. See Fed. R. Civ. P. 4(m).
Plaintiff has the general duty to prosecute this case. Fid. Philadelphia Tr. Co. v.
Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). Plaintiff’s failure to complete
service of the Summons and Complaint on the Defendant within 90 days of the filing date
of the Complaint constitutes failure to prosecute.
A federal district court has the inherent power to dismiss a case sua sponte for failure
to prosecute. Link v. Wabash R. Co., 370 U.S. 626, 629–31 (1962). In appropriate
circumstances, the Court may dismiss a complaint for failure to prosecute even without
notice or hearing. Id. at 633.
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
Case 4:26-cv-00069-JGZ Document 13 Filed 05/13/26 Page 1 of 2

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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 serve Defendant, or to actively participate in this case, prevents the case from
proceeding 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 finds that only one less drastic sanction is realistically available. Rule
41(b), Fed. R. Civ. P., 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, a dismissal with prejudice would be unnecessarily harsh as the Complaint and this
action can be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b).
Accordingly,
IT IS ORDERED that within 20 days of the date this Order is filed, Plaintiff shall
show cause why this action should not be dismissed without prejudice pursuant to Fed. R.
Civ. P. 41(b).
Dated this 12th day of May, 2026.
Case 4:26-cv-00069-JGZ Document 13 Filed 05/13/26 Page 2 of 2