1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 JAMES LEE, ) Case No. CV 21-0174 FMO (PDx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 HANI MOUDAFAR MAMMO, et al., ) ) 14 Defendants. ) ) 15 16 On January 19, 2021, the court issued a Standing Order Re: ADA Accessibility Cases (see 17 Dkt. 9, Court’s Order of January 19, 2021), which ordered plaintiff James Lee (“plaintiff”) to file a 18 request for entry of default no later than seven days after the time the response to the complaint 19 would have been due by the defendant. (Id. at 2). The court admonished plaintiff that “failure to 20 seek entry of default within seven [] days after the deadline to file a response to the complaint shall 21 result in the dismissal of the action and/or the defendant against whom entry of default should 22 have been sought.” (Id. at 2-3) (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co.,

,

(1962)). 24 Here, defendant Hani Moudafar Mammo (“HMM”) was served with the summons and 25 complaint on February 8, 2021, by personal service, (see Dkt. 10, Proof of Service [as to HMM] 26 at 1), and his answer was due on March 1, 2021. Fed. R. Civ. P. 12(a). Defendant Bushra 27 Mammo (“BM”) (collectively with HMM, “defendants”) was served with the summons and complaint 28 1 answer was due on March 4, 2021. Fed. R. Civ. P. 12(a). Neither defendant filed a responsive 2 pleading, and plaintiff filed a Request for Entry of Default against defendants on April 9, 2021. 3 (See Dkt. 12, Request for Entry of Default (“Request”)). The clerk granted this Request on April 4 12, 2021. (See Dkt. 13, Default by Clerk). The parties stipulated to set aside the Default, and the 5 court ordered defendants to file their Answer by June 3, 2021. (See Dkt. 19, Court’s Order of May 6 4, 2021). As of the date of this Order, defendants have not answered the complaint, nor has 7 plaintiff filed a request for entry of default. (See, generally, Dkt.). 8 A district court may dismiss an action for failure to prosecute or to comply with court orders. 9 Fed. R. Civ. P. 41(b); Link,

,

(authority to dismiss for failure 10 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 11 calendars); Ferdik v. Bonzelet,

(9th Cir. 1992) (district court may dismiss 12 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 13 should be imposed only after consideration of the relevant factors in favor of and against this 14 extreme remedy. Thompson v. Housing Auth. of Los Angeles,

(9th Cir. 1986). 15 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 16 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 17 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 18 Pagtalunan v. Galaza,

(9th Cir. 2002) (citing Ferdik,

); see 19 Applied Underwriters, Inc. v. Lichtenegger,

(9th Cir. 2019) (“By its plain text, 20 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 21 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 22 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 23 independently to determine if the district court has abused its discretion.” Ferdik,

1261. 25 Having considered the Pagtalunan factors, the court is persuaded that this action should 26 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 27 file a request for entry of default hinders the court’s ability to move this case toward disposition and 28 1 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [him] to 2 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

, 990 3 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 4 a request for entry of default would result in a dismissal of the action for lack of prosecution and 5 failure to comply with a court order. (See Dkt. 9, Court’s Order of January 19, 2021, at 2-3); see 6 also Ferdik,

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