1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 TODD WILLIAMSON, ) Case No. CV 20-8908 FMO (JPRx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 ZB INVESTMENTS, LLC, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On October 7, 2020, the court issued a Standing Order Re: ADA Accessibility Cases (see 18 Dkt. 9, Court’s Order of October 7, 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 ZB Investments, LLC (“defendant”) was served with the summons and 26 complaint on October 7, 2020, by substituted service. (See Dkt. 10, Proof of Service). On 27 November 10, 2020, plaintiff Todd Williamson (“plaintiff”) filed a request for the Clerk to enter 28 1 to Enter Default []); (Dkt. 12, Default by Clerk). The parties thereafter filed a stipulation to set 2 aside the Clerk’s entry of default. (See Dkt. 13, Stipulation and Order to Set Aside Default []). The 3 court granted this stipulation on November 17, 2020, and directed defendant to file a responsive 4 pleading no later than December 7, 2020. (See Dkt. 14, Court’s Order of November 17, 2020). 5 As of the date of this Order, defendant has not answered the complaint, nor has plaintiff filed a 6 request for entry of default. (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 October 7, 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 18th day of December, 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