Case 2:21-cv-08683-FMO-JC Document 16 Filed 01/31/22 Page 1 of 3 Page ID #:40

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 KEE SOOK AHN, ) Case No. CV 21-8683 FMO (JCx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 146 BONITA LLC, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On December 6, 2021, the court issued its Standing Order Re: ADA Accessibility Cases 18 (see Dkt. 10, Court’s Order of December 6, 2021), which ordered plaintiff to file a motion for 19 default judgment no later than seven calendar days after default is entered by the Clerk. (Id. at 20 3). The court admonished plaintiff that “failure to file a motion for default judgment within seven 21 [] days of entry of default by the Clerk shall result in the dismissal of (1) the action and/or (2) the 22 defendant against whom the motion for default judgment should have been filed.” (Id. at 3-4) 23 (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co.,

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, 1388 24 (1962)). 25 Here, defendant was served with the summons and complaint on December 8, 2021, by 26 personal service. (See Dkt. 11, Proof of Service). Accordingly, defendant’s responsive pleading 27 to the Complaint was due no later than December 29, 2021. Fed. R. Civ. P. 12(a). Defendant did 28 not answer the Complaint by this date, and on January 4, 2022, plaintiff filed a Request for Entry Case 2:21-cv-08683-FMO-JC Document 16 Filed 01/31/22 Page 2 of 3 Page ID #:41

1 of Default as to defendant. (See Dkt. 12, Request for Entry of Default (“Request”)). The clerk 2 granted this Request on January 5, 2022. (See Dkt. 13, Default by Clerk). Plaintiff was required 3 to file a Motion for Default Judgment by January 12, 2022, (see Dkt. 10, Court’s Order of 4 December 6, 2021, at 3), but no such motion has been filed as of the date of this Order.1 (See, 5 generally, Dkt.). 6 A district court may dismiss an action for failure to prosecute or to comply with court orders. 7 Fed. R. Civ. P. 41(b); Link,

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(authority to dismiss for failure 8 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 9 calendars); Ferdik v. Bonzelet,

(9th Cir. 1992) (district court may dismiss 10 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 11 should be imposed only after consideration of the relevant factors in favor of and against this 12 extreme remedy. Thompson v. Housing Auth. of Los Angeles,

(9th Cir. 1986). 13 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 14 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 15 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 16 Pagtalunan v. Galaza,

(9th Cir. 2002) (citing Ferdik,

); see 17 Applied Underwriters, Inc. v. Lichtenegger,

(9th Cir. 2019) (“By its plain text, 18 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 19 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 20 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 21 independently to determine if the district court has abused its discretion.” Ferdik,

1261. 23 24 25 1 On January 12, 2022, plaintiff filed a notice of settlement, (Dkt. 14), which was stricken by the court on January 18, 2022, since no defendant had entered an appearance or signed the 26 notice of settlement. (See Dkt. 15, Court’s Order of January 18, 2022). In its order striking the notice of settlement, the court again admonished the parties that “[f]ailure to comply with all case 27 deadlines and the orders issued in this case shall result in the imposition of sanctions, including 28 but not limited to, the dismissal of the action for failure to comply with any applicable rules and/or court orders.” (Id.) (citing Fed. R. Civ. P. 41(b); Link,

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)). 2 Case 2:21-cv-08683-FMO-JC Document 16 Filed 01/31/22 Page 3 of 3 Page ID #:42

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 the motion to default judgment hinders the court’s ability to move this case toward disposition 4 and indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 5 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [her] to 6 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

, 990 7 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 8 a motion for default judgment would result in a dismissal of the action for lack of prosecution and 9 failure to comply with a court order. (See Dkt. 10, Court’s Order of December 6, 2021, at 3-4); see 10 also Ferdik,

(“[A] district court’s warning to a party that his failure to obey the 11 court’s order will result in dismissal can satisfy the consideration of alternatives requirement.”) 12 (internal quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is 13 persuaded that the instant action should be dismissed for failure to comply with a court order and 14 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 31st day of January, 2022. /s/ 18 Fernando M. Olguin United States District Judge 19 20 21 22 23 24 25 26 27 28 3