Dale Robert Lanier v. Freedom Mortgage Corporation, et al.

• Court: District Court, D. Arizona
• Decided: December 3, 2025
• Docket: 2:25-cv-02375
• Status: Unknown

Opinion

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6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7

8 Dale Robert Lanier, CV-25-2375-PHX-JFM Plaintiff

9 -vs- Freedom Mortgage Corporation, et al., Report & Recommendation 10 Defendants. to the Hon. Stephen M. McNamee

11 This matter is before the undersigned magistrate judge awaiting consents pursuant 12 to 28 U.S.C. § 636(c).1 Because the appropriate resolution of this matter is dispositive of 13 claims or defenses, the undersigned proceeds by way of a Report & Recommendation to 14 Senior District Judge McNamee, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order 15 21-25. 16 Plaintiff filed his pro se Complaint (Doc. 1) on July 8, 2025, name as Defendants 17 Freedom Mortgage Corporation and Rosenbaum Realty Group. Plaintiff’s Application to 18 Proceed In Forma Pauperis was denied without prejudice (Order 7/9/25, Doc. 5) and 19 Plaintiff paid the filing fees (Doc.7). 20 On October 10, 2025 the Court noted that the time for completion of service expired 21 on October 6, 2025, and gave Plaintiff through October 24, 2025 to show cause why the 22 matter should not be dismissed for failure to effect timely service. (Order 10/10/25, Doc. 23 12.) On October 23, 2025 Plaintiff responded (Doc. 13) arguing the merits of his claims 24 and the wrongfulness of Defendants’ conduct. The Court found no showing of diligence 25 in effecting service or cause for delay, but nonetheless the Court gave Plaintiff through 26 27 1 November 21, 2025 to complete service or to show cause why the case should not be 2 dismissed pursuant to Fed. R. Civ. Proc. 4(m). The Order cautioned:

3 If he fails to do so, the Court will proceed with dismissal without prejudice under Rule 4(m). 4 (Order 10/24/25, Doc. 14 at 2.) Plaintiff has not filed a return of service, sought an extension of 5 time to complete service, or shown cause why the case should not be dismissed. 6 Dismissal of a party is appropriate where a plaintiff fails to show good cause for 7 delays in service. See Walker v. Sumner, 14 F.3d 1415 (9th Cir. 1994) (upholding dismissal 8 where no showing of good cause for delay in service). 9 At a minimum, "good cause" means excusable neglect. A plaintiff 10 may also be required to show the following: (a) the party to be served personally received actual notice of the lawsuit; (b) the defendant 11 would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed. 12 Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.1991). Plaintiff has not provided good 13 cause for his continuing delay in service. 14 Notwithstanding Rule 4(m), where "good cause does not exist, the court may in its 15 discretion decide whether to dismiss the case without prejudice or extend time for service." 16 Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3rd Cir. 1995). "[I]f good 17 cause is not established, the district court may extend time for service upon a showing of 18 excusable neglect." Lemoge v. U.S., 587 F.3d 1188, 1198 (9th Cir. 2009). 19 To determine whether a plaintiff demonstrates excusable neglect, courts use the 20 test set forth in Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 394 21 (1993), and Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997). See 22 Lemoge, 587 F.3d at 1198 (holding that plaintiff had established excusable neglect for the 23 purposes of Rule 4(m) via the Pioneer-Briones test). The Pioneer-Briones test is as 24 follows: 25 [T]he determination of whether neglect is excusable is an equitable 26 one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential 27 impact on the proceedings, (3) the reason for the delay; and (4) 1 Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223-1224 (9th Cir.2000). Here, all but 2 the last factor call for a finding of no excusable neglect. 3 Danger of Prejudice to Unserved Defendant - Defendants, if eventually served, 4 would be brought into litigation which has already been pending for some five months. 5 This delay, with attendant loss of evidence, can be presumed to result in Defendant’s 6 prejudice in defending against Plaintiff’s claims 7 Length of Delay and Impact – Almost five months have expired since service on 8 Defendant was appropriate. The case cannot progress without completion of service. 9 Reason for Delay – Plaintiff apparent lack of any attempts at pursuing service on 10 defendants does not demonstrate diligence, nor provide sufficient reason to explain the 11 extent of the delay. 12 Good faith - There appears no reason to conclude that Plaintiff has acted in bad 13 faith, as opposed to simply being dilatory. 14 In sum, all but the last factor weighs against a finding of excusable neglect, and 15 thus the undersigned finds none. 16 Summary - Plaintiff has failed to show good cause or excusable neglect to justify 17 an extension of time to complete service in this case. Dismissal of a party (and thus this 18 action) is appropriate where a plaintiff fails to show good cause for delays in service. 19 Walker v. Sumner, 14 F.3d 1415 (9th Cir. 1994). 20 IT IS THEREFORE RECOMMENDED that, pursuant to Rule 4(m), this case 21 be DISMISSED WITHOUT PREJUDICE. 22 23 EFFECT OF RECOMMENDATION 24 This recommendation is not an order that is immediately appealable to the Ninth 25 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 26 Appellate Procedure, should not be filed until entry of the district court's judgment. 27 However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall l which to file specific written objections with the Court. Thereafter, the parties have 2 || fourteen (14) days within which to file a response to the objections. Failure to timely file 3 || objections to any findings or recommendations of the Magistrate Judge will be considered 4 || a waiver of a party's right to de novo consideration of the issues, see United States v. 5 || Reyna-Tapia, 328 F.3d 1114, 1121 (9" Cir. 2003)(en banc), and will constitute a waiver 6 || of a party's right to appellate review of the findings of fact in an order or judgment entered 7 || pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 8 1146-47 (9th Cir. 2007). ? Dated: December 2, 2025 _ AL ia 1Q |p 827225 Pee Disms does United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28