Case 2:22-cv-04184-FMO-GJS Document 13 Filed 09/21/22 Page 1 of 3 Page ID #:32

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 KORTTNEY ELLIOTT, ) Case No. CV 22-4184 FMO (GJSx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 9800 RUSH, LLC, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On July 5, 2022, the court issued its Standing Order Re: ADA Accessibility Cases (see Dkt. 18 10, Court’s Order of July 5, 2022), which ordered plaintiff to file a proof of service demonstrating 19 service of the Complaint on all parties “within 93 days of the filing of the case absent a previously 20 approved extension of time by the court.” (Id. at 2). The court admonished plaintiff that “failure 21 to file the proof of service within 93 days after the filing of the case shall result in the dismissal of 22 the action and/or the defendant that has not appeared in the case and for which plaintiff has not 23 filed a proof of service.” (Id.) (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co.,

, 24 629-30,

(1962)). 25 Here, plaintiff filed this action on June 17, 2022. (See Dkt. 1, Complaint). Accordingly, 26 plaintiff was required to file a proof of service demonstrating service of the complaint on 9800 27 Rush, LLC (“defendant”) no later than September 18, 2022. (See Dkt. 10, Court’s Order of July 28 Case 2:22-cv-04184-FMO-GJS Document 13 Filed 09/21/22 Page 2 of 3 Page ID #:33

1 5, 2022, at 2). No such proof of service has been filed as of the date of this Order.1 (See, 2 generally, Dkt.). 3 Rule 4(m) of the Federal Rules of Civil Procedure provides that a court, on its own initiative, 4 “must dismiss the action without prejudice” if service is not effected “within 90 days after the 5 complaint is filed[.]” In addition, a district court may dismiss an action for failure to prosecute or 6 to comply with court orders. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co.,

, 629- 7 30,

(1962) (authority to dismiss for failure to prosecute necessary to avoid undue 8 delay in disposing of cases and congestion in court calendars); Ferdik v. Bonzelet,

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

,

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

(9th Cir. 1986). These 13 factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 14 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less 15 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 1 On September 16, 2022, plaintiff filed a Notice of Settlement of Entire Case (Dkt. 11, 25 “Notice”). However, the court struck the Notice, explaining that it “cannot accept a notice of settlement in an action where no defendant has entered an appearance and/or where the 26 defendant did not sign the Notice of Settlement.” (Dkt. 12, Court’s Order of September 19, 2022). The court further explained that “[f]ailure to comply with all case deadlines set forth in the 27 applicable orders issued in this case shall result in the imposition of sanctions, including but not 28 limited to, the dismissal of the action for failure to comply with any applicable rules and/or court orders.” (Id.). 2 Case 2:22-cv-04184-FMO-GJS Document 13 Filed 09/21/22 Page 3 of 3 Page ID #:34

1 Pursuant to Rules 4(m) and 41(b), and in light of the Pagtalunan factors, the court is 2 persuaded that this action should be dismissed for failure to effect service within the specified time 3 and comply with the Court’s Order of July 5, 2022. Plaintiff’s failure to timely file a proper and 4 legally sufficient proof of service hinders the court’s ability to move this case toward disposition 5 and indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 6 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [her] to 7 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

, 990 8 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 9 a valid proof of service would result in a dismissal of the action for lack of prosecution and failure 10 to comply with a court order. (See Dkt. 10, Court’s Order of July 5, 2022, at 2); see also Ferdik, 11

(“[A] district court’s warning to a party that his failure to obey the court’s order 12 will result in dismissal can satisfy the consideration of alternatives requirement.”) (internal 13 quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is persuaded 14 that the instant action should be dismissed for failure to timely effect service, failure to comply with 15 a court order, and failure to prosecute. 16 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 17 without prejudice, for failure to timely effect service, failure to prosecute, and failure to comply with 18 the orders of the court. 19 Dated this 21st day of September, 2022. /s/ 20 Fernando M. Olguin United States District Judge 21 22 23 24 25 26 27 28 3