Roy Yiun v. Bishnu K. Shrestha ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 ROY YIUN, ) Case No. CV 21-7608 FMO (MAAx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 BISHNU K. SHRESTHA, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On October 4, 2021, the court issued its Standing Order Re: ADA Accessibility Cases (see 18 Dkt. 10, Court’s Order of October 4, 2021), 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. 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 September 23, 2021. (See Dkt. 1, Complaint). 26 Accordingly, plaintiff was required to file a proof of service demonstrating service of the complaint 27 on Bishnu K. Shrestha (“defendant”) no later than December 27, 2021. (See Dkt. 10, Court’s 28 1 Order of October 4, 2021, at 2); Fed. R. Civ. P. 12(m). No such proof of service has been filed 2 as of the date of this Order. (See, generally, Dkt.). 3 Rule 4(m) of the Federal Rules of Civil Procedure provides that a court, on its own initiative, 4 “must dismiss the action without prejudice” if service is not effected “within 90 days after the 5 complaint is filed[.]” In addition, a district court may dismiss an action for failure to prosecute or 6 to comply with court orders. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629- 7 30, 82 S.Ct. 1386 (1962) (authority to dismiss for failure to prosecute necessary to avoid undue 8 delay in disposing of cases and congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 9 1260 (9th Cir.), cert. denied, 506 U.S. 915, 113 S.Ct. 321 (1992) (district court may dismiss action 10 for failure to comply with any court order). Dismissal, however, is a severe penalty and should be 11 imposed only after consideration of the relevant factors in favor of and against this extreme 12 remedy. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.1986). These 13 factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 14 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less 15 drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 16 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); see 17 Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (“By its plain text, 18 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 19 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 20 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 21 independently to determine if the district court has abused its discretion.” Ferdik, 963 F.2d at 22 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 October 4, 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. 10, Court’s Order of October 4, 2021, at 2); see also 5 Ferdik, 963 F.2d at 1262 (“[A] district court’s warning to a party that his failure to obey the court’s 6 order 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 28th day of December, 2021. /s/ 14 Fernando M. Olguin United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28