1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARMEN JOHN PERRI, ) Case No. CV 20-6879 FMO (JEMx) ) 12 Plaintiff, ) ) 13 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 14 SIERRA CENTER INVESTMENTS, LLC, ) ) 15 Defendant. ) ) 16 17 On August 17, 2020, the court issued a Standing Order Re: ADA Accessibility Cases (see 18 Dkt. 9, Court’s Order of August 17, 2020), which ordered plaintiff to file a request for entry of 19 default no later than seven days after the time defendant’s response to the complaint would have 20 been due. (Id. at 2). The court admonished plaintiff that “failure to seek entry of default within 21 seven [] days after the deadline to file a response to the complaint shall result in the dismissal of 22 the action and/or the defendant against whom entry of default should have been sought.” (Id. at 23 2-3) (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co.,

,

, 24 1388 (1962)). 25 Here, defendant was served with the summons and complaint on August 25, 2020, by 26 substituted service, and the summons and complaint were mailed to defendant on August 28, 27 2020. (See Dkt. 11, Proof of Service). Accordingly, defendant’s responsive pleading was due no 28 1 415.20(a) (“Service of a summons in this manner is deemed complete on the 10th day after the 2 mailing.”). However, on September 10, 2020, the parties filed a stipulation extending the time for 3 defendant to answer the complaint. (Dkt. 10, Stipulation). The stipulation provided that defendant 4 answer the complaint no later than October 15, 2020. (See id.). As of the date of this Order, 5 defendant has not answered the complaint, nor has plaintiff filed a request for entry of default. 6 (See, generally, Dkt.). 7 A district court may dismiss an action for failure to prosecute or to comply with court orders. 8 Fed. R. Civ. P. 41(b); Link,

,

(authority to dismiss for failure 9 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 10 calendars); Ferdik v. Bonzelet,

(9th Cir. 1992) (district court may dismiss 11 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 12 should be imposed only after consideration of the relevant factors in favor of and against this 13 extreme remedy. Thompson v. Housing Auth. of Los Angeles,

(9th Cir. 1986). 14 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 15 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 16 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 17 Pagtalunan v. Galaza,

(9th Cir. 2002) (citing Ferdik,

); see 18 Applied Underwriters, Inc. v. Lichtenegger,

(9th Cir. 2019) (“By its plain text, 19 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 20 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 21 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 22 independently to determine if the district court has abused its discretion.” Ferdik,

1261. 24 Having considered the Pagtalunan factors, the court is persuaded that this action should 25 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 26 file a request for entry of default hinders the court’s ability to move this case toward disposition and 27 indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 28 1 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

, 990 2 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 3 a request for entry of default would result in a dismissal of the action for lack of prosecution and 4 failure to comply with a court order. (See Dkt. 9, Court’s Order of August 17, 2020, at 2-3); see 5 also Ferdik,

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