Axelson v. United States

Background

Rian Alan Axelson filed a complaint against the United States. Magistrate Judge Leo I. Brisbois recommended dismissing the complaint without prejudice because Axelson had not provided proof that he served the United States with the summons and complaint and had failed to prosecute the case.

The court had previously warned Axelson that the case could be dismissed if he did not properly serve the defendant or failed to prosecute. Although Axelson sent several letters, he did not object to the recommendation, show that service had been completed, address the court’s concerns, or provide an accurate mailing address. Copies of court orders mailed to him were returned as undeliverable.

Court’s analysis

Because Axelson did not object to the recommendation, the court reviewed it for clear error. The court explained that Federal Rule of Civil Procedure 4(m) generally requires a plaintiff to provide proof of service within 90 days after filing the complaint. If the plaintiff shows good cause for failing to serve the defendant, the court must extend the time for service. The court found that Axelson had not shown good cause, despite the passage of several months and the court’s prior warning.

The court also found that Axelson had not adequately prosecuted the action. His communications did not show that he attempted to serve the United States or responded to the recommendation, and the addresses he provided did not enable the court to communicate with him.

Disposition

Judge Katherine Menendez accepted Magistrate Judge Brisbois’s report and recommendation. The court dismissed Axelson’s complaint without prejudice and ordered that judgment be entered accordingly.