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)
ORDER
At issue is the Report and Recommendation (Doc. 18, “R&R”) entered by United
States Magistrate Judge Michael T. Morrissey recommending that Plaintiff‘s claims
against Defendant be dismissed without prejudice under Rules 4(m) and 41(b) of the
Federal Rules of Civil Procedure. In the R&R, Judge Morrissey warned the parties that
they would 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.” (R&R at
5.) Judge Morrissey further warned that “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,” citing United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Judge Morrissey also warned that
“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 R&R].”
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The R&R was entered onto the docket, and is therefore deemed served, January 29,
2026. The parties therefore had until February 12, 2026 to file any objections.
Mr. Hasselbrock never filed an objection, either within the time period he was warned
about or since. He did file a notice of appeal with the United States Court of Appeals for
the Ninth Circuit on February 13, 2026. But the notice of appeal had no effect because, as
Judge Morrissey stated in the R&R, “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.” There has been no entry of judgment in this matter
by the district court.
The Court is thus empowered to accept the recommendations in the R&R without
further process and dismiss this matter without prejudice. However, in light of the fact that
Mr. Hasselbrock is a non-law-trained self-represented litigant, the Court entertains the
possibility that his errant filing of a notice of appeal with the Ninth Circuit was actually an
attempt to object to the R&R, and if so construed, would only have been one day late,
which the Court would find good cause for excusing. Thus the court will deem
Mr. Hasselbrock’s filing as an objection timely filed and consider it on its merits.
But turning to the merits, Mr. Hasselbrock fails to demonstrate that the R&R, or any
of its findings, were in error. Mr. Hasselbrock attached several records of communications
with various process servers in an attempt to demonstrate that he had effected service of
the summons and complaint on Defendant Mr. Wilson. But all of the communications from
the process servers confirm that service was unsuccessful in each server’s attempt.
Mr. Hasselbrock also attaches copies demonstrating a certified mailing of the summons
and complaint to Mr. Wilson. But as Mr. Hasselbrock was warned by Judge Morrissey
previously, service by certified mail is not an approved or acceptable method of service
under the Federal Rules of Civil Procedure. The Court thus overrules Plaintiff’s objections.
The Court also will deny Plaintiff’s Motion for Default and Motion for Entry of
Default Judgment (Docs. 16, 17). Service never having been completed on Defendant, he
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cannot have defaulted. The Court also will deny Plaintiff’s Application for leave to proceed
in forma pauperis (Doc. 20) as moot.
For all of these reasons,
IT IS ORDERED overruling Plaintiff’s Objections (Doc. 19.)
IT IS FURTHER ORDERED adopting the R&R entered in this matter by Judge
Morrissey (Doc. 18.)
IT IS FURTHER ORDERED dismissing the Complaint (Doc. 1) and this matter
without prejudice. The clerk of court shall enter judgment and close this case.
IT IS FURTHER ORDERED denying as moot the Motions at Docs. 16, 17 and
20.
Dated this 23rd day of March, 2026.
Honorable John J. Tuchi
United States District Judge
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