United States District Court, D. Nevada
ORDER DISMISSING CASE
Rules of Civil Procedure give a plaintiff 90 days to serve a
summons and complaint and require the plaintiff to file proof
of that timely service on each defendant. David Frahn
commenced this case against three defendants-David Lee
Phillips, Esq., Charles Brown, and David Lee Phillips &
Associates-on June 2, 2017, and he still has not filed proof
of service of the summons and complaint on any
defendant. On September 18, 2017, the Clerk of Court
sent plaintiff a notice that his claims would be dismissed
without prejudice for any defendant he failed to file proof
of service on by October 18, 2017. I reminded him of that
deadline when I denied his motion for default on October 5,
failure to file notices demonstrating that process was
lawfully served on any defendant in this case compels the
dismissal of this action. Rule 4(m) states, “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.” Frahn has been twice warned
that his failure to file proof of service by October 18,
2017, would cause his case to be dismissed. Although he filed
proof of service on defendant David Lee Phillips, Esq., as an
exhibit to a motion before the deadline expired, that proof
only demonstrated that he served Phillips's personal
summons and complaint on the secretary at Phillips's
place of business, which is not an authorized method of
service under the rules.
courts have the inherent power to control their dockets and
“[i]n the exercise of that power, they may impose
sanctions including, where appropriate, . . .
dismissal” of a case. A court may dismiss an action
based on a party's failure to prosecute an action,
failure to obey a court order, or failure to comply with
local rules. In determining whether to dismiss an
action for lack of prosecution, failure to obey a court
order, or failure to comply with local rules, the court must
consider several 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
that the first two factors weigh in favor of dismissing this
case. The risk-of-prejudice factor also weighs in favor of
dismissal because a presumption of injury arises from the
occurrence of unreasonable delay in filing a document ordered
by the court or prosecuting an action. A court's
warning to a party that failing to obey the court's order
or comply with a rule will result in dismissal satisfies the
consideration-of-alternatives requirement,  and Frahn was
expressly warned that dismissal could result if he failed to
provide proof of service by the October 18th deadline; he was
also advised that the court did not consider the lone proof
he had provided to be proper. Although the fourth factor
weighs against dismissal, it is greatly outweighed here by
those favoring dismissal.
IT IS HEREBY ORDERED that this action is DISMISSED without
prejudice for failure to provide timely proof of proper
service on any defendant. The pending Motion for Summary
Judgment [ECF No. 10] is DENIED as moot. The Clerk of Court
is directed to CLOSE THIS CASE.
 Fed.R.Civ.P. 4. Rule 4(c)(1) further
makes it clear that “[t]he plaintiff is responsible for
having the summons and complaint served within the time
allowed under Rule 4(m).”
 Although plaintiff attached a proof of
service to his motion for default against defendant David Lee
Phillips Esq., ECF No. 6 at 7, as I explained in the order
denying that motion, the proof demonstrates that service was
defective. See ECF No. 7.
 ECF No. 5.
 ECF No. 7.
 Fed.R.Civ.P. 4(m).
 See Fed. R. Civ. P.
Thompson v. Hous. Auth. of City of
Los Angeles, 782 F.2d 829, 831 (9th Cir. ...