Theresa Brooke v. NK Investment LP ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 THERESA BROOKE, ) Case No. ED CV 21-1807 FMO (KKx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 NK INVESTMENT LP, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On November 16, 2021, the court issued a Standing Order Re: ADA Accessibility Cases 18 (see Dkt. 10, Court’s Order of November 16, 2021), which ordered plaintiff to file a request for 19 entry of default no later than seven days after the time the response to the complaint would have 20 been due by the defendant. (Id. at 2). The court admonished plaintiff that “failure to seek entry 21 of default within seven [] days after the deadline to file a response to the complaint shall result in 22 the dismissal of the action and/or the defendant against whom entry of default should have been 23 sought.” (Id. at 2-3) (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 24 82 S.Ct. 1386, 1388 (1962)). 25 Here, defendant was served with the summons and complaint on November 9, 2021, by 26 personal service. (See Dkt. 11, Proof of Service). Accordingly, defendant’s responsive pleading 27 to the Complaint was due no later than November 30, 2021. See Fed. R. Civ. P. 12(a). As of the 28 1 for entry of default. (See, generally, Dkt.). Plaintiff filed a deficient request for entry of default on 2 December 5, 2021. (See Dkt. 12, Petition for Entry of Default Against Defendant). The Clerk of 3 Court issued a Notice of Deficiency on December 6, 2021, explaining that the Proof of Service 4 lacked the required information and directing plaintiff to “file a new Request/Application with noted 5 deficiencies corrected in order to have default reconsidered.” (Dkt. 13, Notice of Deficiency) 6 (emphasis in original). As of the date of this Order, plaintiff has not filed a new request for entry 7 of default with the required information. (See, generally, Dkt.). 8 A district court may dismiss an action for failure to prosecute or to comply with court orders. 9 Fed. R. Civ. P. 41(b); Link, 370 U.S. at 629-30, 82 S.Ct. at 1388 (authority to dismiss for failure 10 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 11 calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (district court may dismiss 12 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 13 should be imposed only after consideration of the relevant factors in favor of and against this 14 extreme remedy. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.1986). 15 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 16 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 17 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 18 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); see 19 Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (“By its plain text, 20 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 21 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 22 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 23 independently to determine if the district court has abused its discretion.” Ferdik, 963 F.2d at 24 1261. 25 Having considered the Pagtalunan factors, the court is persuaded that this action should 26 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 27 file a valid request for entry of default hinders the court’s ability to move this case toward 28 1 disposition and indicates that plaintiff does not intend to litigate this action. In other words, 2 plaintiff’s “noncompliance has caused [this] action to come to a complete halt, thereby allowing 3 [her] to control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 4 983, 990 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that 5 failure to file a request for entry of default would result in a dismissal of the action for lack of 6 prosecution and failure to comply with a court order. (See Dkt. 10, Court’s Order of November 16, 7 2021, at 2-3); see also Ferdik, 963 F.2d at 1262 (“[A] district court’s warning to a party that his 8 failure to obey the court’s order will result in dismissal can satisfy the consideration of alternatives 9 requirement.”) (internal quotation marks omitted). Thus, having considered the Pagtalunan 10 factors, the court is persuaded that the instant action should be dismissed for failure to comply 11 with a court order and failure to prosecute. 12 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 13 without prejudice, for failure to prosecute and comply with the orders of the court. 14 Dated this 14th day of December, 2021. /s/ 15 Fernando M. Olguin United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28