Opinion
CV-22-01324-PHX-SMB (MTM)
09-18-2023
Adam Smith, Plaintiff, v. William W Lothrop, et al., Defendants.
TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
HONORABLE MICHAEL T. MORRISSEY, UNITED STATES MAGISTRATE JUDGE.
I. Summary of Conclusion.
This matter is before the Court on its own review. Plaintiff has failed to effect service on Defendants and the deadline for service has passed. On July 17, 2023, the Court issued its first Order to Show Cause. Doc. 11. On August 9, 2023, the Court issued its second Order to Show Cause. Doc. 12. To date, Plaintiff has not filed a response to either Order to Show Cause, and the deadline to do so has passed. Accordingly, the Court will recommend that Plaintiff's case be dismissed without prejudice under Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure.
II. Background.
a. Filing and Order to Serve.
On August 8, 2022, Plaintiff filed a Complaint commencing this action against Defendants William W. Lothrop, Unknown Salisbury, FCI Phoenix, Bureau of Prisons, the United States of America, and several unknown parties, in their individual and official capacities. Doc. 1. On August 15, 2022, the Court ordered Plaintiff to either pay the $350.00 filing fee and $52.00 administrative fee or file a complete an Application to Proceed Without Prepayment of Fees and Costs. Doc. 4 at 2. When Plaintiff failed to follow the Court's Order, the Court dismissed the case without prejudice. Doc. 5. Following Plaintiff's Motions to Reopen (docs. 6 & 7), the Court reopened the case on April 5, 2023. Doc. 8. On May 2, 2023, the Court issued the following order regarding service:
Plaintiff must either serve each Defendant or seek a waiver of service for each Defendant. If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a 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 as to each Defendant not served.Doc. 10. Thus, Plaintiff's service deadline in this action expired on July 3, 2023. See Fed.R.Civ.P. 4(m).
b. First Order to Show Cause.
On July 17, 2023, the Court issued an Order to Show Cause requiring Plaintiff to, no later than July 28, 2023, serve the Complaint on Defendants or show cause for why the action should not be dismissed for failure to prosecute and failure to comply with the Court's Order. Doc. 11. Plaintiff did not respond to the Court's Order to Show Cause.
c. Second Order to Show Cause.
On August 9, 2023, the Court issued a second Order to Show Cause. Doc. 12. The Court ordered Plaintiff to, no later than August 28, 2023, serve the Complaint on Defendants or show cause for why the action should not be dismissed for failure to prosecute and failure to comply with the Court's Order. Doc. 12 at 2. The Court warned Plaintiff that “[f]ailure to comply with this Order may result in dismissal of this action.” Doc. 12 at 2.
To date, Plaintiff has neither filed proofs of service on Defendants nor responded to the Court's Second Order to Show Cause.
III. Discussion.
a. Rule 4(m).
As an initial matter, Plaintiff has failed to timely serve Defendants under Rule 4(m) of the Federal Rules of Civil Procedure, which requires that service be completed within 90 days of the date the complaint was filed.
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(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's deadline to serve Defendants expired on July 3, 2023. To date, Plaintiff has neither filed proofs of service on Defendants nor shown cause why the action should not be dismissed. Accordingly, the Court will recommend the action be dismissed without prejudice 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 that “[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.
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 either effect service on Defendants or respond to the Court's Orders to Show Cause, as directed, prevents the case from proceeding against these Defendants 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 responded.
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 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 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.