1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DESIGN COLLECTION, INC., ) Case No. CV 24-7091 FMO (Ex) ) 12 Plaintiff, ) ) 13 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 14 ) LNE, LLC, et al., ) 15 ) Defendants. ) 16 ) ) 17 18 On September 30, 2024, the court issued an Order to Show Cause why this case should 19 not be dismissed for lack of prosecution, following plaintiff Design Collection, Inc’s failure to file 20 an application requesting entry of default against defendants LNE, LLC and Emory Park, Inc. 21 (collectively “defendants”). (See Dkt. 13, Court’s Order of September 30, 2024). The court 22 admonished plaintiff that “[f]ailure to file a timely response to this Order to Show Cause shall result 23 in the action or the above defendant(s) being dismissed for lack of prosecution and for failure to 24 comply with the orders of the court.” (Id.) (citing Local Rule 41; Fed. R. Civ. P. 4 & 41(b); Link v. 25 Wabash R.R. Co.,

,

(1962)). 26 Here, defendant LNE, LLC was served with the summons and complaint on August 24, 27 2024, by substituted service. (See Dkt. 11, Proof of Service as to LNE, LLC). A copy of the 28 1 agent for service of process on August 30, 2024. (See id. at 3). Service was deemed complete 2 on September 9, 2024. See

(a). Accordingly, LNE, LLC’s responsive 3 pleading to the complaint was due no later than September 30, 2024. See Fed. R. Civ. P. 12(a). 4 As of the filing date of this Order, LNE, LLC has not filed any responsive pleading. (See, 5 generally, Dkt.). 6 Defendant Emory Park, Inc. was served with the summons and complaint on August 26, 7 2024, by substituted service. (See Dkt. 12, Proof of Service as to Emory Park, Inc.). A copy of 8 the summons and complaint was sent by first-class mail, postage prepaid, to Emory Park Inc.’s 9 designated agent for service of process on August 28, 2024. (See

). Service was deemed 10 complete on September 7, 2024. See

(a). Accordingly, Emory Park 11 Inc.’s responsive pleading to the complaint was due no later than September 28, 2024. See Fed. 12 R. Civ. P. 12(a). As of the filing date of this Order, Emory Park, Inc. has failed to file any 13 responsive pleading. (See, generally, Dkt.). 14 A district court may dismiss an action for failure to prosecute or to comply with court orders. 15 Fed. R. Civ. P. 41(b); Link,

,

(authority to dismiss for failure 16 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 17 calendars); Ferdik v. Bonzelet,

(9th Cir. 1992) (district court may dismiss 18 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 19 should be imposed only after consideration of the relevant factors in favor of and against this 20 extreme remedy. Thompson v. Housing Auth. of Los Angeles,

(9th Cir. 1986). 21 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 22 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 23 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 24 Pagtalunan v. Galaza,

(9th Cir. 2002) (citing Ferdik,

); see 25 Applied Underwriters, Inc. v. Lichtenegger,

(9th Cir. 2019) (“By its plain text, 26 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 27 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 28 1 independently to determine if the district court has abused its discretion.” Ferdik,

1261. 3 Having considered the Pagtalunan factors, the court is persuaded that this action should 4 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff was ordered 5 to file a written response to the Order to Show Cause no later than October 7, 2024. (See Dkt. 6 13, Court’s Order of September 30, 2024). As of the filing date of this Order, no response has 7 been filed to the court’s Order to Show Cause. (See, generally, Dkt.). Plaintiff’s failure to respond, 8 or file a request for entry of default, hinders the court’s ability to move this case toward disposition 9 and indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 10 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [her] to 11 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier,

, 990 12 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to 13 respond to the Court’s Order of September 30, 2024, would result in a dismissal of the action for 14 lack of prosecution and failure to comply with a court order. (See Dkt. 13, Court’s Order of 15 September 30, 2024); see also Ferdik,

(“[A] district court’s warning to a party that 16 his failure to obey the court’s order will result in dismissal can satisfy the consideration of 17 alternatives requirement.”) (internal quotation marks omitted). Thus, having considered the 18 Pagtalunan factors, the court is persuaded that the instant action should be dismissed for failure 19 to comply with a court order and failure to prosecute. 20 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 21 without prejudice, for failure to prosecute and comply with the orders of the court. 22 Dated this 15th day of October, 2024. 23 /s/ 24 Fernando M. Olguin United States District Judge 25 26 27 28