John Ho v. Rykadan 005 LLC

Opinion

Case 2:22-cv-00756-FMO-JC Document 12 Filed 05/16/22 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 JOHN HO, ) Case No. CV 22-0756 FMO (JCx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 RYKADAN 005 LLC, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On February 10, 2022, the court issued its Standing Order Re: ADA Accessibility Cases 18 (see Dkt. 10, Court’s Order of February 10, 2022), which ordered plaintiff to file a proof of service 19 demonstrating service of the Complaint on all parties “within 93 days of the filing of the case 20 absent a previously approved extension of time by the court.” (Id. at 2). The court admonished 21 plaintiff that “failure to file the proof of service within 93 days after the filing of the case shall result 22 in the dismissal of the action and/or the defendant that has not appeared in the case and for which 23 plaintiff has not filed a proof of service.” (Id.) (citing Fed. R. Civ. P. 4 & 41(b); Link v. Wabash R.R. 24 Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962)). 25 Here, plaintiff filed this action on February 3, 2022. (See Dkt. 1, Complaint). Accordingly, 26 plaintiff was required to file a proof of service demonstrating service of the complaint on defendant 27 by no later than May 9, 2022. (See Dkt. 10, Court’s Order of February 10, 2022, at 2). No such 28 proof of service has been filed as of the date of this Order. (See, generally, Dkt.). Case 2:22-cv-00756-FMO-JC Document 12 Filed 05/16/22 Page 2 of 3 Page ID #:33

1 Rule 4(m) of the Federal Rules of Civil Procedure provides that a court, on its own initiative, 2 “must dismiss the action without prejudice” if service is not effected “within 90 days after the 3 complaint is filed[.]” In addition, a district court may dismiss an action for failure to prosecute or 4 to comply with court orders. Fed. R. Civ. P. 41(b); Link, 370 U.S. at 629-30, 82 S.Ct. at 1388 5 (authority to dismiss for failure to prosecute necessary to avoid undue delay in disposing of cases 6 and congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) 7 (district court may dismiss action for failure to comply with any court order). Dismissal, however, 8 is a severe penalty and should be imposed only after consideration of the relevant factors in favor 9 of and against this extreme remedy. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 10 831 (9th Cir.1986). These factors include: “(1) the public’s interest in expeditious resolution of 11 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 12 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 13 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 14 2002) (citing Ferdik, 963 F.2d at 1260-61); see Applied Underwriters, Inc. v. Lichtenegger, 913 15 F.3d 884, 891 (9th Cir. 2019) (“By its plain text, a Rule 41(b) dismissal . . . requires ‘a court order’ 16 with which an offending plaintiff failed to comply.”). “Although it is preferred, it is not required that 17 the district court make explicit findings in order to show that it has considered these factors and 18 [the Ninth Circuit] may review the record independently to determine if the district court has 19 abused its discretion.” Ferdik, 963 F.2d at 1261. 20 Pursuant to Rules 4(m) and 41(b), and in light of the Pagtalunan factors, the court is 21 persuaded that this action should be dismissed for failure to effect service within the specified time 22 and comply with the Court’s Order of February 10, 2022. Plaintiff’s failure to timely file a proper 23 and legally sufficient proof of service hinders the court’s ability to move this case toward 24 disposition and indicates that plaintiff does not intend to litigate this action. In other words, 25 plaintiff’s “noncompliance has caused [this] action to come to a complete halt, thereby allowing 26 [her] to control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 27 983, 990 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that 28 failure to file a valid proof of service would result in a dismissal of the action for lack of prosecution 2 Case 2:22-cv-00756-FMO-JC Document 12 Filed 05/16/22 Page 3 of 3 Page ID #:34

1 and failure to comply with a court order. (See Dkt. 10, Court’s Order of February 10, 2022, at 2); 2 see also Ferdik, 963 F.2d at 1262 (“[A] district court’s warning to a party that his failure to obey 3 the 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 timely effect service, failure 6 to comply with a court order, and failure to prosecute. 7 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 8 without prejudice, for failure to timely effect service, failure to prosecute, and failure to comply with 9 the orders of the court. 10 Dated this 16 day of May, 2022. /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