1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 PORTIA MASON, ) Case No. CV 21-7868 FMO (KSx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 INTERIOR DEFINE, INC., et al., ) ) 14 ) ) 15 Defendant. ) ) 16 17 On October 25, 2021, the court issued a Standing Order Re: ADA Accessibility Cases (see 18 Dkt. 11, Court’s Order of October 25, 2021), 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 October 12, 2021, by 26 personal service. (See Dkt. 9, Proof of Service); (Dkt. 14, Proof of Service). Accordingly, 27 defendant’s responsive pleading to the Complaint was due no later than November 2, 2021. See 28 1 has plaintiff filed a valid request for entry of default. (See, generally, Dkt.). Plaintiff filed a deficient 2 request for entry of default on November 4, 2021. (See Dkt. 12, Request for Clerk’s Entry of 3 Default As to Defendant Interior Define, Inc.). The Clerk of Court issued a Notice of Deficiency 4 on November 5, 2021, explaining that the Proof of Service lacked the required information and 5 directing plaintiff to “file a new Request/Application with noted deficiencies corrected in order to 6 have default reconsidered.” (Dkt. 13, Notice of Deficiency) (emphasis in original). Although 7 plaintiff filed a new version of the Proof of Service on November 10, 2021, (see Dkt. 14, Proof of 8 Service), he has not filed a new request for entry of default with the required information. (See, 9 generally, Dkt.). 10 A district court may dismiss an action for failure to prosecute or to comply with court orders. 11 Fed. R. Civ. P. 41(b); Link,

,

(authority to dismiss for failure 12 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 13 calendars); Ferdik v. Bonzelet,

(9th Cir. 1992) (district court may dismiss 14 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 15 should be imposed only after consideration of the relevant factors in favor of and against this 16 extreme remedy. Thompson v. Housing Auth. of Los Angeles,

(9th Cir. 1986). 17 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 18 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 19 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 20 Pagtalunan v. Galaza,

(9th Cir. 2002) (citing Ferdik,

); see 21 Applied Underwriters, Inc. v. Lichtenegger,

(9th Cir. 2019) (“By its plain text, 22 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 23 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 24 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 25 independently to determine if the district court has abused its discretion.” Ferdik,

1261. 27 28 1 Having considered the Pagtalunan factors, the court is persuaded that this action should 2 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 3 file a valid request for entry of default hinders the court’s ability to move this case toward 4 disposition and indicates that plaintiff does not intend to litigate this action. In other words, 5 plaintiff’s “noncompliance has caused [this] action to come to a complete halt, thereby allowing 6 [her] to control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

(9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that 8 failure to file a request for entry of default would result in a dismissal of the action for lack of 9 prosecution and failure to comply with a court order. (See Dkt. 11, Court’s Order of October 25, 10 2021, at 2-3); see also Ferdik,

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