1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 JAMES SHAYLER, ) Case No. CV 20-5817 FMO (DFMx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 D.S.R. PARTNERS, LLC, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On July 16, 2020, the court issued its Standing Order Re: ADA Accessibility Cases (see 18 Dkt. 9, Court’s Order of July 16, 2020), which ordered plaintiff to file a request for entry of default 19 no later than seven calendar days after defendant failed to respond to the complaint within the 20 time provided by the Federal Rules of Civil Procedure. (Id. at 2). The court admonished plaintiff 21 that “failure to seek entry of default within seven (7) days after the deadline to file a response to 22 the complaint shall result in the dismissal of the action and/or the defendant against whom entry 23 of default should have been sought.” (Id.) (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 24

,

(1962)). 25 Here, defendant was served with the summons and complaint on August 10, 2020, by 26 substituted service. (See Dkt. 11, Proof of Service). Accordingly, defendant’s responsive pleading 27 to the Complaint was due no later than August 31, 2020. Fed. R. Civ. P. 12(a). Defendant did not 28 1 additional time to respond to the complaint. (See, generally, Dkt.). Plaintiff was thus required to 2 file a Request for Entry of Default by September 8, 2020, (see Dkt. 9, Court’s Order of July 16, 3 2020, at 2), but no such request has been filed as of the date of this Order. (See, generally, Dkt.). 4 A district court may dismiss an action for failure to prosecute or to comply with court orders. 5 Fed. R. Civ. P. 41(b); Link,

,

(authority to dismiss for failure 6 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 7 calendars); Ferdik v. Bonzelet,

(9th Cir. 1992) (district court may dismiss 8 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 9 should be imposed only after consideration of the relevant factors in favor of and against this 10 extreme remedy. Thompson v. Housing Auth. of Los Angeles,

(9th Cir. 1986). 11 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 12 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 13 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 14 Pagtalunan v. Galaza,

(9th Cir. 2002) (citing Ferdik,

); see 15 Applied Underwriters, Inc. v. Lichtenegger,

(9th Cir. 2019) (“By its plain text, 16 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 17 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 18 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 19 independently to determine if the district court has abused its discretion.” Ferdik,

1261. 21 Having considered the Pagtalunan factors, the court is persuaded that this action should 22 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 23 file a request for entry of default hinders the court’s ability to move this case toward disposition and 24 indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 25 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [him] to 26 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

, 990 27 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 28 1 failure to comply with a court order. (See Dkt. 9, Court’s Order of July 31, 2020, at 2); see also 2 Ferdik,

(“[A] district court’s warning to a party that his failure to obey the court’s 3 order will result in dismissal can satisfy the consideration of alternatives requirement.”) (internal 4 quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is persuaded 5 that the instant action should be dismissed for failure to comply with a court order and failure to 6 prosecute. 7 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 8 without prejudice, for failure to prosecute and comply with the orders of the court. 9 Dated this 21st day of September, 2020. /s/ 10 Fernando M. Olguin United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28