Omar Luna v. Yes to Everything, LLC

• Court: District Court, C.D. California
• Decided: September 23, 2021
• Docket: 2:21-cv-04261
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 OMAR LUNA, ) Case No. CV 21-4261 FMO (KKx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 YES TO EVERYTHING, LLC, et al., ) ) 14 ) ) 15 Defendants. ) ) 16 17 On June 1, 2021, the court issued its Standing Order Re: ADA Accessibility Cases (see Dkt. 18 9, Court’s Order of June 1, 2021), which ordered plaintiff to file a proof of service demonstrating 19 service of the Complaint on all parties “within 93 days of the filing of the case absent a previously 20 approved extension of time by the court.” (Id. at 2). The court admonished plaintiff that “failure 21 to file the proof of service within 93 days after the filing of the case shall result in the dismissal of 22 the action and/or the defendant that has not appeared in the case and for which plaintiff has not 23 filed a proof of service.” (Id.) (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 24 629-30, 82 S.Ct. 1386, 1388 (1962)). 25 Here, plaintiff filed a Complaint against defendant Yes to Everything, LLC on May 21, 2021, 26 (Dkt. 1) and a First Amended Complaint on June 17, 2021, adding defendant Yes to Everyhing, 27 LLC. (See Dkt. 10, First Amended Complaint (“FAC”)). Accordingly, plaintiff was required to file 28 1 Everyhing, LLC (“defendants”), no later than August 22, 2021, and September 18, 2021, 2 respectively. (See Dkt. 9, Court’s Order of June 1, 2021, at 2); Fed. R. Civ. P. 4(m). No such 3 proofs of service have been filed as of the date of this Order. (See, generally, Dkt.). 4 Rule 4(m) of the Federal Rules of Civil Procedure provides that a court, on its own initiative, 5 “must dismiss the action without prejudice” if service is not effected “within 90 days after the 6 complaint is filed[.]” In addition, a district court may dismiss an action for failure to prosecute or 7 to comply with court orders. Fed. R. Civ. P. 41(b); Link, 370 U.S. at 629-30, 82 S.Ct. at 1388 8 (authority to dismiss for failure to prosecute necessary to avoid undue delay in disposing of cases 9 and congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) 10 (district court may dismiss action for failure to comply with any court order). Dismissal, however, 11 is a severe penalty and should be imposed only after consideration of the relevant factors in favor 12 of and against this extreme remedy. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 13 831 (9th Cir.1986). These factors include: “(1) the public’s interest in expeditious resolution of 14 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 15 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 16 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 17 2002) (citing Ferdik, 963 F.2d at 1260-61); see Applied Underwriters, Inc. v. Lichtenegger, 913 18 F.3d 884, 891 (9th Cir. 2019) (“By its plain text, a Rule 41(b) dismissal . . . requires ‘a court order’ 19 with which an offending plaintiff failed to comply.”). “Although it is preferred, it is not required that 20 the district court make explicit findings in order to show that it has considered these factors and 21 [the Ninth Circuit] may review the record independently to determine if the district court has 22 abused its discretion.” Ferdik, 963 F.2d at 1261. 23 Pursuant to Rules 4(m) and 41(b), and in light of the Pagtalunan factors, the court is 24 persuaded that this action should be dismissed for failure to effect service within the specified time 25 and comply with the Court’s Order of June 1, 2021. Plaintiff’s failure to timely file a proper and 26 legally sufficient proof of service hinders the court’s ability to move this case toward disposition 27 and indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 28 1 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 2 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 3 a valid proof of service would result in a dismissal of the action for lack of prosecution and failure 4 to comply with a court order. (See Dkt. 9, Court’s Order of June 1, 2021, at 2); see also Ferdik, 5 963 F.2d at 1262 (“[A] district court’s warning to a party that his failure to obey the court’s order 6 will result in dismissal can satisfy the consideration of alternatives requirement.”) (internal 7 quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is persuaded 8 that the instant action should be dismissed for failure to timely effect service, failure to comply with 9 a court order, and failure to prosecute. 10 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 11 without prejudice, for failure to timely effect service, failure to prosecute, and failure to comply with 12 the orders of the court. 13 Dated this 23rd day of September, 2021. /s/ 14 Fernando M. Olguin United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28