1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 ORLANDO GARCIA, ) Case No. CV 20-11137 FMO (PVCx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 GENEVIEVE C. MORALES, et al., ) ) 14 Defendants. ) ) 15 16 On January 11, 2021, the court issued its Standing Order Re: ADA Accessibility Cases (see 17 Dkt. 10, Court’s Order of January 11, 2021), which ordered plaintiff Orlando Garcia (“plaintiff”) to 18 file a proof of service demonstrating service of the Complaint on all parties “within 93 days of the 19 filing of the case absent a previously approved extension of time by the court.” (Id. at 2). The 20 court admonished plaintiff that “failure to file the proof of service within 93 days after the filing of 21 the case shall result in the dismissal of the action and/or the defendant that has not appeared in 22 the case and for which plaintiff has not filed a proof of service.” (Id.) (citing Fed. R. Civ. P. 41(b); 23 Link v. Wabash R.R. Co.,

,

(1962)). 24 Here, plaintiff filed this action on December 9, 2020. (See Dkt. 1, Complaint). Accordingly, 25 plaintiff was required to file a proof of service demonstrating service of the complaint on defendant 26 Genevieve C. Morales (“defendant”) – the sole remaining defendant – no later than March 12, 27 2021. (See Dkt. 10, Court’s Order of January 11, 2021, at 2); Fed. R. Civ. P. 4(m). No such proof 28 1 Rule 4(m) of the Federal Rules of Civil Procedure provides that a court, on its own initiative, 2 “must dismiss the action without prejudice” if service is not effected “within 90 days after the 3 complaint is filed[.]” In addition, a district court may dismiss an action for failure to prosecute or 4 to comply with court orders. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co.,

, 629- 5 30,

(1962) (authority to dismiss for failure to prosecute necessary to avoid undue 6 delay in disposing of cases and congestion in court calendars); Ferdik v. Bonzelet,

, 7 1260 (9th Cir.), cert. denied,

,

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

(9th Cir. 1986). These 11 factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 12 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less 13 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 Pursuant to Rules 4(m) and 41(b), and in light of the Pagtalunan factors, the court is 22 persuaded that this action should be dismissed for failure to effect service within the specified time 23 and comply with the Court’s Order of January 11, 2021. Plaintiff’s failure to timely file a proof of 24 service as to defendant hinders the court’s ability to move this case toward disposition and 25 indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 26 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [him] to 27 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

, 990 28 1 a valid proof of service would result in a dismissal of the action for lack of prosecution and failure 2 to comply with a court order. (See Dkt. 10, Court’s Order of January 11, 2021, at 2); see also 3 Ferdik,

(“[A] district court’s warning to a party that his failure to obey the court’s 4 order will result in dismissal can satisfy the consideration of alternatives requirement.”) (internal 5 quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is persuaded 6 that the instant action should be dismissed for failure to timely effect service, failure to comply with 7 a court order, and failure to prosecute. 8 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 9 without prejudice, for failure to timely effect service, failure to prosecute, and failure to comply with 10 the orders of the court. 11 Dated this 15th day of March, 2021. /s/ 12 Fernando M. Olguin United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28