Brian Whitaker v. Another Project LLC

• Court: District Court, C.D. California
• Decided: January 6, 2021
• Docket: 2:20-cv-10112
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 BRIAN WHITAKER, ) Case No. CV 20-10112 FMO (JEMx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 ANOTHER PROJECT LLC, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On November 30, 2020, the court issued a Standing Order Re: ADA Accessibility Cases 18 (see Dkt. 10, Court’s Order of November 30, 2020), which ordered plaintiff Brian Whitaker 19 (“plaintiff”) to file a request for entry of default no later than seven days after the time the response 20 to the complaint would have been due by the defendant. (Id. at 2). The court admonished plaintiff 21 that “failure to seek entry of default within seven [] days after the deadline to file a response to the 22 complaint shall result in the dismissal of the action and/or the defendant against whom entry of 23 default should have been sought.” (Id. at 2-3) (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. 24 Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962)). 25 Here, defendant Another Project LLC (“defendant”) was served with the summons and 26 complaint on November 17, 2020, by substituted service, and the summons and complaint were 27 mailed to defendant on November 18, 2020. (See Dkt. 9, Proof of Service at 1). Accordingly, 28 1 Cal. Civ. Proc. Code § 415.20(a) (Substituted service “is deemed complete on the 10th day after 2 the mailing”); Fed. R. Civ. P. 12(a); Fed. R. Civ. P. 4(e). As of the date of this Order, defendant 3 has not answered the Complaint, nor has plaintiff filed a request for entry of default. (See, 4 generally, Dkt.). 5 A district court may dismiss an action for failure to prosecute or to comply with court orders. 6 Fed. R. Civ. P. 41(b); Link, 370 U.S. at 629-30, 82 S.Ct. at 1388 (authority to dismiss for failure 7 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 8 calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (district court may dismiss 9 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 10 should be imposed only after consideration of the relevant factors in favor of and against this 11 extreme remedy. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.1986). 12 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 13 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 14 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 15 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); see 16 Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (“By its plain text, 17 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 18 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 19 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 20 independently to determine if the district court has abused its discretion.” Ferdik, 963 F.2d at 21 1261. 22 Having considered the Pagtalunan factors, the court is persuaded that this action should 23 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 24 file a request for entry of default hinders the court’s ability to move this case toward disposition and 25 indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 26 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [him] to 27 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 28 1 a request for entry of default would result in a dismissal of the action for lack of prosecution and 2 failure to comply with a court order. (See Dkt. 10, Court’s Order of November 30, 2020, at 2-3); 3 see also Ferdik, 963 F.2d at 1262 (“[A] district court’s warning to a party that his failure to obey 4 the court’s order will result in dismissal can satisfy the consideration of alternatives requirement.”) 5 (internal quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is 6 persuaded that the instant action should be dismissed for failure to comply with a court order and 7 failure to prosecute. 8 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 9 without prejudice, for failure to prosecute and comply with the orders of the court. 10 Dated this 6th day of January, 2021. /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