Opinion
CV-23-01468-PHX-DLR (ASB)
04-16-2024
Jon Wagner, Plaintiff, v. State of Arizona, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus, United States Magistrate Judge
Plaintiff Jon Wagner filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 on July 25, 2023. (Doc. 1.) The Complaint named Edward Scot Logan; Edward Wesley Logan; City of Mesa, Arizona; and “Does 1-10” as Defendants. (Id.)
In its screening order filed October 5, 2023, the Court ordered Plaintiff to serve each Defendant or seek of waiver of service for each Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of the screening order, whichever was later. (Doc. 6.) Plaintiff was warned that if he failed to timely comply with the screening order, the action would be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Id.)
Proof of service as to Defendant City of Mesa was timely filed. (Doc. 4.) Defendant City of Mesa filed an Answer (Doc. 7), and the Court issued a scheduling order. (Doc. 8.) As to Defendants Edward Scot Logan and Edward Wesley Logan (collectively, the “Logan Defendants”), a “Certificate of Service - Non Service was filed on October 4, 2023. (Doc. 5.) The document purports to be completed by a “Chris Denison,” who provided no further identification or information about himself or herself. (Id.) The document's author wrote that service was unsuccessfully attempted at the home of the Logan Defendants. (Id.) At the bottom of the document, the author hand wrote, “I went to the home, 3x no one would come to the Door, I left notes to call me Request Alternative Service.” (Id.) The docket reflects Plaintiff filed no motion for alternative service.
The quoted language is as it appears in the original document. (Doc. 5.)
On February 5, 2024, the Court issued an order to show cause why the Complaint should not be dismissed as to the unserved defendants for failure to serve. (Doc. 10.) In that Order, the Court reminded Plaintiff of the screening order and again warned Plaintiff that failure to serve could result in dismissal of the unserved defendants. (Id.) Plaintiff filed no response to the Order. It is against this backdrop that the Court considers the relevant Rules and controlling case law.
Rule 4 of the Federal Rules of Civil Procedure governs service of process. Rule 4(m) sets forth the time limits for service and directs that if a defendant is not served within 90 days after the complaint is filed, the Court, 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.” Rule 4(m) continues, “But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” “At a minimum, ‘good cause' means excusable neglect.” Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (analyzing good cause in the context of Rule 4(j)). Further, a plaintiff may “be required to show the following: (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. (citing Hart v. United States, 817 F.2d 78, 80-81 (9th Cir. 1987). Indeed, 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).
Here, Plaintiff was specifically warned that failure to comply with Rule 4 may result in dismissal of his action. (Docs. 6, 10.) On the record before it, the Court cannot conclude that Plaintiff has shown “good cause” as defined in Boudette. 923 F.2d at 756. While the Court recognizes Plaintiff apparently made some attempt to serve the Logan Defendants, Plaintiff did not file for any relief with the Court regarding alternative service, and he did not respond to the Court's February 5, 2024 Order to Show Cause. Further, the Court cannot find that the unserved defendants have received actual notice of this action and would suffer no prejudice, and the Court cannot find that Plaintiff would be severely prejudiced if his Complaint were dismissed as to the unserved defendants. See id. In sum, the Court finds Plaintiff has failed to prosecute this action as required regarding the unserved defendants. Consequently, dismissal of the Complaint as to the unserved defendants under Rule 41(b) is warranted. The Court will recommend that the Complaint be dismissed without prejudice as to the unserved defendants (Edward Scot Logan, Edward Wesley Logan, and Does 1-10).
Assuming arguendo that the Court were to construe the document filed at Docket No. 5 as a motion for alternative service, the Motion would fail. First, it is unclear who filed it, and a phrase handwritten by a third party is not a proper motion. But even if it were, the Motion would be denied. Rule 4(e) of the Federal Rules of Civil Procedure governs in this matter. Based on the document filed at Docket No. 5, the methods of acceptable service in Rule 4(e)(2) were not accomplished. That leaves Rule 4(e)(1), which provides that an individual may be served in a judicial district of the United States by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Thus, the Court considers Arizona's rules concerning service. Under Rule 4.1(k) of the Arizona Rules of Civil Procedure, alternative service may be authorized by a court only when the requesting party shows the other service methods listed in Rule 4.1(c)-(j) are “impracticable.” Plaintiff has made no such showing.
RECOMMENDATION
IT IS RECOMMENDED that Plaintiff's Complaint (Doc. 1) be dismissed without prejudice as to the unserved defendants (Edward Scot Logan, Edward Wesley Logan, and Does 1-10) only, and that the Clerk of Court terminate those defendants from this action accordingly.
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.
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 Judge 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.