1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 BRIAN WHITAKER, ) Case No. CV 20-9441 FMO (ASx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 PARAG PATEL, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On October 20, 2020, the court issued a Standing Order Re: ADA Accessibility Cases (see 18 Dkt. 9, Court’s Order of October 20, 2020), which ordered plaintiff to file a request for entry of 19 default no later than seven days after the time the response to the complaint would have been due 20 by the defendant. (Id. at 2). The court admonished plaintiff that “failure to seek entry of default 21 within seven [] days after the deadline to file a response to the complaint shall result in the 22 dismissal of the action and/or the defendant against whom entry of default should have been 23 sought.” (Id. at 2-3) (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 November 2, 2020, by 26 substituted service. (See Dkt. 10, Proof of Service). Accordingly, service became effective on 27 November 12, 2020, see § 415.20(a), and defendant’s responsive pleading to the Complaint was 28 1 defendant has not answered the complaint, nor has plaintiff filed a request for entry of default. 2 (See, generally, Dkt.). 3 A district court may dismiss an action for failure to prosecute or to comply with court orders. 4 Fed. R. Civ. P. 41(b); Link,

,

(authority to dismiss for failure 5 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 6 calendars); Ferdik v. Bonzelet,

(9th Cir. 1992) (district court may dismiss 7 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 8 should be imposed only after consideration of the relevant factors in favor of and against this 9 extreme remedy. Thompson v. Housing Auth. of Los Angeles,

(9th Cir. 1986). 10 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 11 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 12 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 13 Pagtalunan v. Galaza,

(9th Cir. 2002) (citing Ferdik,

); see 14 Applied Underwriters, Inc. v. Lichtenegger,

(9th Cir. 2019) (“By its plain text, 15 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 16 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 17 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 18 independently to determine if the district court has abused its discretion.” Ferdik,

1261. 20 Having considered the Pagtalunan factors, the court is persuaded that this action should 21 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 22 file a request for entry of default hinders the court’s ability to move this case toward disposition and 23 indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 24 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [her] to 25 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

, 990 26 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 27 a request for entry of default would result in a dismissal of the action for lack of prosecution and 28 1 also Ferdik,

(“[A] district court’s warning to a party that his failure to obey the 2 court’s order will result in dismissal can satisfy the consideration of alternatives requirement.”) 3 (internal quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is 4 persuaded that the instant action should be dismissed for failure to comply with a court order and 5 failure to prosecute. 6 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 7 without prejudice, for failure to prosecute and comply with the orders of the court. 8 Dated this 16th day of December, 2020. 9 /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