1 2 JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MOD CHAMPAGNE LLC, No. 2:21-cv-00985-JAK (AJRx) 11 Plaintiff, ORDER DISMISSING CASE 12 WITHOUT PREJUDICE v. 13 [JS-6: CASE TERMINATED] RETAIL SERVICES SYSTEMS, INC., et 14 al., 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 1 I. BACKGROUND 2 On February 2, 2021, Mod Champagne LLC (“Mod” or “Plaintiff”) brought this 3 action against Retail Service Systems, Inc. d/b/a Total Wine & More (“Total Wine”) and 4 Blicker Pierce Wagner Wine Merchants, LLC (“BPW”). Dkt. 1. On December 19, 2025, 5 an Order issued granting in part Total Wine’s and BPW’s motions to dismiss the 6 Complaint, but without prejudice. Dkt. 93. Plaintiff filed its Second Amended Complaint 7 on February 9, 2026, which added Southern Glazer’s Wine and Spirits, LLC (“Southern 8 Glazer’s”) as a Defendant. Dkt. 97. 9 On March 20, 2026, Alexander E. Eisemann and Michael J. Jaurigue filed a 10 motion to withdraw as counsel of record for Plaintiff. Dkt. 102 (“Motion to Withdraw”). 11 On March 24, 2026, the Motion to Withdraw was granted. Dkt. 108 (“Withdrawal 12 Order”). The Withdrawal Order was stayed until April 24, 2026, for the “sole purpose” 13 of providing “Plaintiff with the opportunity to retain new counsel so that the action will 14 not be dismissed because Plaintiff cannot be a self-represented litigant.” Id. at 3. The 15 Withdrawal Order also provided that, “[i]f new counsel for Plaintiff does not enter an 16 appearance on behalf of Plaintiff by April 24, 2026, the action will be dismissed, without 17 prejudice, because Plaintiff cannot proceed as a self-represented litigant, and will have, 18 therefore, failed to prosecute.” Id. 19 On April 23, 2026, Eisemann filed a Motion to Intervene pursuant to Fed. R. Civ. 20 P. 24(a)(2). Dkt. 112 (“Intervention Motion”). That same day, Eisemann, both in his 21 individual capacity and as counsel for Plaintiff, filed an Ex Parte Application for a Stay 22 of Dismissal. Dkt. 113 (“Stay Application”). The Stay Application sought an order 23 continuing the stay of the Withdrawal Order for at least 60 days to “allow Plaintiff 24 additional time to engage new counsel” and to avoid having the Intervention Motion 25 become moot. Dkt. 113 at 6. 26 On April 24, 2026, the Stay Application was granted in part. Dkt. 118. The stay of 27 the Withdrawal Order was continued to May 18, 2026 for the sole purpose of 1 “preserv[ing] the status quo pending the resolution of the Intervention Motion . . . .” Id. 2 at 3. The April 24, 2026 Order also stated: “If new counsel for Plaintiff has not entered 3 an appearance on the docket on behalf of Plaintiff on or before May 18, 2026, the March 4 24, 2026 Order will automatically take effect on May 18, 2026, as to the withdrawal of 5 Alexander E. Eisemann and Michael J. Jaurigue as counsel of record for Plaintiff. 6 Thereafter, a separate Order will issue dismissing, without prejudice, the action because 7 Plaintiff cannot proceed as a self-represented litigant, and will have, therefore, failed to 8 prosecute this action.” Id. at 3–4. The April 24, 2026 Order also required that by May 11, 9 2026, Plaintiff file a report concerning “its efforts to engage new counsel, including 10 whether there is an anticipated date when such counsel is expected to enter an 11 appearance on the docket.” Id. at 4. 12 Plaintiff failed to file a report by May 11, 2026. On May 13, 2026, the 13 Intervention Motion was denied. Dkt. 123. Further, no appearance by new counsel has 14 been entered on the docket by the May 18, 2026 deadline. 15 II. LEGAL STANDARDS 16 Courts have the inherent power to dismiss a case sua sponte for failure to 17 prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629–31 (1962). In exercising 18 its discretion to dismiss on that basis a court should consider: (1) the public’s interest in 19 expeditious resolution of cases; (2) the court’s need to manage its docket; (3) the risk of 20 prejudice to the defendants; (4) the public policy favoring disposition of cases on the 21 merits; and (5) the availability of less drastic alternatives. See Pagtalunan v. Galaza, 291 22 F.3d 639, 640 (9th Cir. 2002). All five factors need not apply for an action to be 23 dismissed for failure to prosecute; a strong showing on three of the factors is sufficient. 24 See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992). 25 A corporation must be represented by legal counsel to appear in federal court. 26 Rowland v. California Men’s Colony, 506 U.S. 194, 201–02 (1993); United States v. 27 High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (per curium). Civil Local 1 Rule 83-2.2.2 extends this rule to all organizations and entities. See L.R. 83-2.2.2 (“Only 2 individuals may represent themselves pro se. No organization or entity of any other kind 3 (including corporations, limited liability corporations, partnerships, limited liability 4 partnerships, unincorporated associations, trusts) may appear in any action or proceeding 5 unless represented by an attorney permitted to practice before this Court.”). 6 III. APPLICATION 7 Despite repeatedly being informed that it cannot proceed without being 8 represented by counsel, Plaintiff did not engage new counsel by the initial April 24, 2026 9 deadline, or by the extended deadline of May 18, 2026. Moreover, Plaintiff failed to 10 comply with the April 24, 2026 Order, which required the filing of a status report 11 concerning Plaintiff’s efforts to engage new counsel. Thus, dismissal of this action is 12 warranted due to Plaintiff’s failure to prosecute and comply with court orders. See, e.g., 13 Bourbeau v. Cognitive Code Corp., 693 F. App’x 499, 503 (9th Cir. 2017) (affirming 14 district court’s dismissal of action for failure to prosecute because entity plaintiff failed 15 to obtain counsel); High Country Broad. Co., 3 F.3d at 1245. 16 The first, second, third, and fourth factors also support dismissal. Plaintiff has 17 failed to obtain counsel in a timely manner, notwithstanding that it was expressly 18 notified by the Court that its failure to do so would result in the dismissal of this action. 19 Plaintiff also failed to comply with the April 24, 2026 Order. Plaintiff’s failure to 20 prosecute this case diligently and noncompliance with court orders has interfered with 21 the public’s interest in expeditious resolution of this litigation, impeded the Court’s 22 ability to manage its docket, and subjected Defendants to the prejudice created by 23 unreasonable delay. See Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) 24 (“The law presumes injury from unreasonable delay.”). Because Plaintiff has repeatedly 25 been warned that this action would be dismissed if it did not diligently retain counsel, 26 and Plaintiff’s deadline to do so has already been extended, no less drastic sanction is 27 available. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district 1 || court need not exhaust every sanction short of dismissal before finally dismissing a case, 2 || but must explore possible and meaningful alternatives.”’). Finally, although the public 3 interest in favor of resolving cases on their merits always weighs against dismissal, 4 || Plaintiffs failure to prosecute this action diligently and its noncompliance with court orders outweighs such interest. Morris v.
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1 2 JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MOD CHAMPAGNE LLC, No. 2:21-cv-00985-JAK (AJRx) 11 Plaintiff, ORDER DISMISSING CASE 12 WITHOUT PREJUDICE v. 13 [JS-6: CASE TERMINATED] RETAIL SERVICES SYSTEMS, INC., et 14 al., 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 1 I. BACKGROUND 2 On February 2, 2021, Mod Champagne LLC (“Mod” or “Plaintiff”) brought this 3 action against Retail Service Systems, Inc. d/b/a Total Wine & More (“Total Wine”) and 4 Blicker Pierce Wagner Wine Merchants, LLC (“BPW”). Dkt. 1. On December 19, 2025, 5 an Order issued granting in part Total Wine’s and BPW’s motions to dismiss the 6 Complaint, but without prejudice. Dkt. 93. Plaintiff filed its Second Amended Complaint 7 on February 9, 2026, which added Southern Glazer’s Wine and Spirits, LLC (“Southern 8 Glazer’s”) as a Defendant. Dkt. 97. 9 On March 20, 2026, Alexander E. Eisemann and Michael J. Jaurigue filed a 10 motion to withdraw as counsel of record for Plaintiff. Dkt. 102 (“Motion to Withdraw”). 11 On March 24, 2026, the Motion to Withdraw was granted. Dkt. 108 (“Withdrawal 12 Order”). The Withdrawal Order was stayed until April 24, 2026, for the “sole purpose” 13 of providing “Plaintiff with the opportunity to retain new counsel so that the action will 14 not be dismissed because Plaintiff cannot be a self-represented litigant.” Id. at 3. The 15 Withdrawal Order also provided that, “[i]f new counsel for Plaintiff does not enter an 16 appearance on behalf of Plaintiff by April 24, 2026, the action will be dismissed, without 17 prejudice, because Plaintiff cannot proceed as a self-represented litigant, and will have, 18 therefore, failed to prosecute.” Id. 19 On April 23, 2026, Eisemann filed a Motion to Intervene pursuant to Fed. R. Civ. 20 P. 24(a)(2). Dkt. 112 (“Intervention Motion”). That same day, Eisemann, both in his 21 individual capacity and as counsel for Plaintiff, filed an Ex Parte Application for a Stay 22 of Dismissal. Dkt. 113 (“Stay Application”). The Stay Application sought an order 23 continuing the stay of the Withdrawal Order for at least 60 days to “allow Plaintiff 24 additional time to engage new counsel” and to avoid having the Intervention Motion 25 become moot. Dkt. 113 at 6. 26 On April 24, 2026, the Stay Application was granted in part. Dkt. 118. The stay of 27 the Withdrawal Order was continued to May 18, 2026 for the sole purpose of 1 “preserv[ing] the status quo pending the resolution of the Intervention Motion . . . .” Id. 2 at 3. The April 24, 2026 Order also stated: “If new counsel for Plaintiff has not entered 3 an appearance on the docket on behalf of Plaintiff on or before May 18, 2026, the March 4 24, 2026 Order will automatically take effect on May 18, 2026, as to the withdrawal of 5 Alexander E. Eisemann and Michael J. Jaurigue as counsel of record for Plaintiff. 6 Thereafter, a separate Order will issue dismissing, without prejudice, the action because 7 Plaintiff cannot proceed as a self-represented litigant, and will have, therefore, failed to 8 prosecute this action.” Id. at 3–4. The April 24, 2026 Order also required that by May 11, 9 2026, Plaintiff file a report concerning “its efforts to engage new counsel, including 10 whether there is an anticipated date when such counsel is expected to enter an 11 appearance on the docket.” Id. at 4. 12 Plaintiff failed to file a report by May 11, 2026. On May 13, 2026, the 13 Intervention Motion was denied. Dkt. 123. Further, no appearance by new counsel has 14 been entered on the docket by the May 18, 2026 deadline. 15 II. LEGAL STANDARDS 16 Courts have the inherent power to dismiss a case sua sponte for failure to 17 prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629–31 (1962). In exercising 18 its discretion to dismiss on that basis a court should consider: (1) the public’s interest in 19 expeditious resolution of cases; (2) the court’s need to manage its docket; (3) the risk of 20 prejudice to the defendants; (4) the public policy favoring disposition of cases on the 21 merits; and (5) the availability of less drastic alternatives. See Pagtalunan v. Galaza, 291 22 F.3d 639, 640 (9th Cir. 2002). All five factors need not apply for an action to be 23 dismissed for failure to prosecute; a strong showing on three of the factors is sufficient. 24 See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992). 25 A corporation must be represented by legal counsel to appear in federal court. 26 Rowland v. California Men’s Colony, 506 U.S. 194, 201–02 (1993); United States v. 27 High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (per curium). Civil Local 1 Rule 83-2.2.2 extends this rule to all organizations and entities. See L.R. 83-2.2.2 (“Only 2 individuals may represent themselves pro se. No organization or entity of any other kind 3 (including corporations, limited liability corporations, partnerships, limited liability 4 partnerships, unincorporated associations, trusts) may appear in any action or proceeding 5 unless represented by an attorney permitted to practice before this Court.”). 6 III. APPLICATION 7 Despite repeatedly being informed that it cannot proceed without being 8 represented by counsel, Plaintiff did not engage new counsel by the initial April 24, 2026 9 deadline, or by the extended deadline of May 18, 2026. Moreover, Plaintiff failed to 10 comply with the April 24, 2026 Order, which required the filing of a status report 11 concerning Plaintiff’s efforts to engage new counsel. Thus, dismissal of this action is 12 warranted due to Plaintiff’s failure to prosecute and comply with court orders. See, e.g., 13 Bourbeau v. Cognitive Code Corp., 693 F. App’x 499, 503 (9th Cir. 2017) (affirming 14 district court’s dismissal of action for failure to prosecute because entity plaintiff failed 15 to obtain counsel); High Country Broad. Co., 3 F.3d at 1245. 16 The first, second, third, and fourth factors also support dismissal. Plaintiff has 17 failed to obtain counsel in a timely manner, notwithstanding that it was expressly 18 notified by the Court that its failure to do so would result in the dismissal of this action. 19 Plaintiff also failed to comply with the April 24, 2026 Order. Plaintiff’s failure to 20 prosecute this case diligently and noncompliance with court orders has interfered with 21 the public’s interest in expeditious resolution of this litigation, impeded the Court’s 22 ability to manage its docket, and subjected Defendants to the prejudice created by 23 unreasonable delay. See Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) 24 (“The law presumes injury from unreasonable delay.”). Because Plaintiff has repeatedly 25 been warned that this action would be dismissed if it did not diligently retain counsel, 26 and Plaintiff’s deadline to do so has already been extended, no less drastic sanction is 27 available. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district 1 || court need not exhaust every sanction short of dismissal before finally dismissing a case, 2 || but must explore possible and meaningful alternatives.”’). Finally, although the public 3 interest in favor of resolving cases on their merits always weighs against dismissal, 4 || Plaintiffs failure to prosecute this action diligently and its noncompliance with court orders outweighs such interest. Morris v. Morgan Stanley Co., 942 F.2d 648, 652 (9th 6 || Cir. 1991) (“Although there is indeed a policy favoring disposition on the merits, it is the 7 || responsibility of the moving party to move towards that disposition at a reasonable pace, 8 || and to refrain from dilatory and evasive tactics.”); see also Ferdik, 963 F.2d at 1262-63 9 || (‘Even if the prejudice factor as well as the fifth factor regarding the public policy 10 || favoring disposition on the merits both weighed against dismissal, they would not 11 || outweigh the other three factors that strongly support dismissal here.”). 12 Based on the foregoing discussion, this action is DISMISSED WITHOUT 13. | PREJUDICE due to Plaintiff's failure to prosecute and noncompliance with court 14 || orders. 15 || IV. CONCLUSION 16 For the reasons stated in this Order, this action is DISMISSED WITHOUT 17 | PREJUDICE. Judgment shall issue separately. 18 19 | ITISSO ORDERED.
|| Dated: May 19, 2026 John A. Kronstadt United States District Judge