Case 2:22-cv-04694-FMO-AGR Document 17 Filed 09/28/22 Page 1 of 3 Page ID #:36

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 THERESA BROOKE, ) Case No. CV 22-4694 FMO (AGRx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 LA SKY HARBOR LLC, ) ) 14 Defendant. ) ) 15 16 On August 3, 2022, the court issued its Standing Order Re: ADA Accessibility Cases (see 17 Dkt. 13, Court’s Order of August 3, 2022), which ordered plaintiff to file a motion for default 18 judgment no later than seven calendar days after default is entered by the Clerk. (Id. at 3). The 19 court admonished plaintiff that “failure to file a motion for default judgment within seven [] days of 20 entry of default by the Clerk shall result in the dismissal of (1) the action and/or (2) the defendant 21 against whom the motion for default judgment should have been filed.” (Id. at 3-4) (citing Fed. R. 22 Civ. P. 41(b); Link v. Wabash R.R. Co.,

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(1962)). 23 Here, defendant was served with the summons and complaint on August 2, 2022, by 24 personal service. (See Dkt. 14, Proof of Service). Accordingly, defendant’s responsive pleading 25 to the Complaint was due no later than August 23, 2022. Fed. R. Civ. P. 12(a). Defendant did not 26 answer the Complaint by this date, and on August 24, 2022, plaintiff filed a Petition for Clerk’s 27 Entry of Default as to defendant. (See Dkt. 15, Petition for Clerk’s Entry of Default (“Petition”). 28 The clerk granted this Petition on August 25, 2022. (See Dkt. 16, Default by Clerk). Plaintiff was Case 2:22-cv-04694-FMO-AGR Document 17 Filed 09/28/22 Page 2 of 3 Page ID #:37

1 required to file a Motion for Default Judgment by September 1, 2022, (see Dkt. 13, Court’s Order 2 of August 3, 2022, at 3-4), but no such motion has been filed as of the date of this Order. (See, 3 generally, Dkt.). 4 A district court may dismiss an action for failure to prosecute or to comply with court orders. 5 Fed. R. Civ. P. 41(b); Link,

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(authority to dismiss for failure 6 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 7 calendars); Ferdik v. Bonzelet,

(9th Cir. 1992) (district court may dismiss 8 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 9 should be imposed only after consideration of the relevant factors in favor of and against this 10 extreme remedy. Thompson v. Housing Auth. of Los Angeles,

(9th Cir. 1986). 11 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 12 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 13 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 14 Pagtalunan v. Galaza,

(9th Cir. 2002) (citing Ferdik,

); see 15 Applied Underwriters, Inc. v. Lichtenegger,

(9th Cir. 2019) (“By its plain text, 16 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 17 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 18 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 19 independently to determine if the district court has abused its discretion.” Ferdik,

1261. 21 Having considered the Pagtalunan factors, the court is persuaded that this action should 22 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 23 file the motion for default judgment hinders the court’s ability to move this case toward disposition 24 and indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 25 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [her] to 26 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

, 990 27 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 28 a motion for default judgment would result in a dismissal of the action for lack of prosecution and 2 Case 2:22-cv-04694-FMO-AGR Document 17 Filed 09/28/22 Page 3 of 3 Page ID #:38

1 failure to comply with a court order. (See Dkt. 13, Court’s Order of August 3, 2022, at 3-4); see 2 also Ferdik,

(“[A] district court’s warning to a party that his failure to obey the 3 court’s order will result in dismissal can satisfy the consideration of alternatives requirement.”) 4 (internal quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is 5 persuaded that the instant action should be dismissed for failure to comply with a court order and 6 failure to prosecute. 7 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 8 without prejudice, for failure to prosecute and comply with the orders of the court. 9 Dated this 28th day of September, 2022. 10 /s/ 11 Fernando M. Olguin United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3