Unreported / Non-Citable
Background
In March 2025, pro se plaintiff Hassan Abpikar sued Jorge Sandoval, Patricia Sandoval, Sherry Scott, and Beatriz Thomas. After obtaining leave to amend, he filed a first amended complaint in December 2025. Thomas and Scott then moved to dismiss. On May 22, 2026, the court dismissed the first amended complaint as to Thomas and Scott with leave to amend within 14 days, later extending the deadline to July 10, 2026, and warning that no further extensions would be granted absent good cause. Mr. Abpikar sought a further 90-day extension to obtain funds to hire an attorney; the court granted only 30 days and warned that failure to file an amended complaint would result in dismissal for failure to prosecute. He missed the deadline and failed to attend the July 23, 2026 case management conference, so the court dismissed the claims against Thomas and Scott with prejudice.
Separately, on September 11, 2026, the court ordered Mr. Abpikar to file proof of service on Patricia Sandoval or show cause why she should not be dismissed for failure to effect timely service. He did not respond, and the court dismissed Patricia Sandoval with prejudice. Mr. Abpikar then moved under Federal Rule of Civil Procedure 60(b) to vacate both dismissal orders and for 60 days to file a second amended complaint, claiming he never received mailed copies of the court's orders and learned of the relevant docket entries only when he visited the Clerk's Office on October 22, 2026.
The Court’s Holding
The court granted the motion in part and denied it in part. As to Thomas and Scott, the court acknowledged that even if the requested 90-day extension had been granted, the second amended complaint would still have been due on October 8, 2026, and Mr. Abpikar had not filed one by that date. Nevertheless, cognizant of his pro se status and in the interests of justice, the court vacated the order dismissing Thomas and Scott with prejudice and ordered him to file a second amended complaint within 14 days of the order. The court found a 60-day extension unreasonable because Mr. Abpikar had been on notice of his obligation to amend for almost six months.
As to Patricia Sandoval, the court declined to vacate the dismissal. Under Federal Rule of Civil Procedure 4(m), service must be made within 90 days after the complaint is filed, and dismissal is mandatory unless the plaintiff shows good cause for the failure. Mr. Abpikar had filed no proof of service as to Patricia Sandoval and had shown no good cause, and he did not contend that he failed to receive the order directing him to show cause or file proof of service. Finding no excusable neglect, the court let the dismissal of Patricia Sandoval with prejudice stand.
Key Takeaways
- Federal Rule of Civil Procedure 60(b) allows a court to relieve a party from an order for mistake, surprise, excusable neglect, or extraordinary circumstances, but relief remains discretionary.
- A pro se litigant's claim that he never received the court's orders by mail can support a finding of excusable neglect, particularly where vacatur serves the interests of justice.
- Even where neglect is excused, the court may impose a short, firm deadline rather than the longer extension the movant requested.
- Under Federal Rule of Civil Procedure 4(m), dismissal for failure to serve a defendant within 90 days is mandatory unless the plaintiff shows good cause.
- Failing to respond to a show-cause order and failing to file proof of service left no basis to disturb the dismissal with prejudice of Patricia Sandoval.
Why It Matters
The order illustrates the discretionary nature of Rule 60(b) relief for pro se litigants: the court reinstated the claims against Thomas and Scott despite the plaintiff's missed deadlines and absence from a case management conference, while still enforcing a tight 14-day deadline to amend.
It also underscores that Rule 4(m)'s service requirement is strictly enforced. Because Mr. Abpikar neither served Patricia Sandoval nor showed good cause, her dismissal with prejudice was mandatory and survived his motion, showing that not all procedural failures receive the same leniency.