1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 IGNACIO VERA, ) Case No. CV 21-7089 FMO (SKx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 SIMON MASSACHI, et al., ) ) 14 ) ) 15 Defendants. ) ) 16 17 On September 20, 2021, the court issued its Standing Order Re: ADA Accessibility Cases 18 (see Dkt. 12, Court’s Order of September 20, 2021), which ordered plaintiff to file a proof of 19 service demonstrating service of the Complaint on all parties “within 93 days of the filing of the 20 case absent a previously approved extension of time by the court.” (Id. at 2). The court 21 admonished plaintiff that “failure to file the proof of service within 93 days after the filing of the 22 case shall result in the dismissal of the action and/or the defendant that has not appeared in the 23 case and for which plaintiff has not filed a proof of service.” (Id.) (citing Fed. R. Civ. P. 41(b); Link 24 v. Wabash R.R. Co.,

,

(1962)). 25 Here, plaintiff filed this action on September 2, 2021, (see Dkt. 1, Complaint), and filed the 26 operative First Amended Complaint adding defendant Elias G. Rizk, as Trustee of the Rizk Family 27 Trust (“Rizk”) on September 20, 2021. (Dkt. 10). Accordingly, plaintiff was required to file a proof 28 1 action, no later than December 22, 2021. (See Dkt. 12, Court’s Order of September 20, 2021, at 2 2); Fed. R. Civ. P. 12(m). No such proof of service has been filed as of the date of this Order. 3 (See, generally, Dkt.). 4 Rule 4(m) of the Federal Rules of Civil Procedure provides that a court, on its own initiative, 5 “must dismiss the action without prejudice” if service is not effected “within 90 days after the 6 complaint is filed[.]” In addition, a district court may dismiss an action for failure to prosecute or 7 to comply with court orders. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co.,

, 629- 8 30,

(1962) (authority to dismiss for failure to prosecute necessary to avoid undue 9 delay in disposing of cases and congestion in court calendars); Ferdik v. Bonzelet,

, 10 1260 (9th Cir.), cert. denied,

,

(1992) (district court may dismiss action 11 for failure to comply with any court order). Dismissal, however, is a severe penalty and should be 12 imposed only after consideration of the relevant factors in favor of and against this extreme 13 remedy. Thompson v. Housing Auth. of Los Angeles,

(9th Cir. 1986). These 14 factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 15 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less 16 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 Pursuant to Rules 4(m) and 41(b), and in light of the Pagtalunan factors, the court is 25 persuaded that this action should be dismissed for failure to effect service within the specified time 26 and comply with the Court’s Order of September 20, 2021. Plaintiff’s failure to timely file a proper 27 and legally sufficient proof of service hinders the court’s ability to move this case toward 28 1 plaintiff’s “noncompliance has caused [this] action to come to a complete halt, thereby allowing 2 [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 4 failure to file a valid proof of service would result in a dismissal of the action for lack of prosecution 5 and failure to comply with a court order. (See Dkt. 12, Court’s Order of September 20, 2021, at 6 2); see also Ferdik,

(“[A] district court’s warning to a party that his failure to obey 7 the 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 timely effect service, failure 10 to comply with a court order, and failure to prosecute. 11 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 12 without prejudice, for failure to timely effect service, failure to prosecute, and failure to comply with 13 the orders of the court. 14 Dated this 28th day of December, 2021. /s/ 15 Fernando M. Olguin United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28