Dwain Lammey v. Wolkdaneprop, LLC ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 DWAIN LAMMEY, ) Case No. CV 20-10596 FMO (RAOx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 WOLKDANEPROP, LLC, et al., ) ) 14 Defendants. ) ) 15 16 On December 1, 2020, the court issued a Standing Order Re: ADA Accessibility Cases (see 17 Dkt. 9, Court’s Order of December 1, 2020), which ordered plaintiff Dwain Lammey (“plaintiff”) to 18 file a request for entry of default no later than seven days after the time the response to the 19 complaint would have been due by the defendant. (Id. at 2). The court admonished plaintiff that 20 “failure to seek entry of default within seven [] days after the deadline to file a response to the 21 complaint shall result in the dismissal of the action and/or the defendant against whom entry of 22 default should have been sought.” (Id. at 2-3) (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. 23 Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962)). 24 Here, defendant Wolkdaneprop, LLC (“WP”) was served with the summons and complaint 25 on December 1, 2020, by substituted service, and the summons and complaint were mailed on 26 December 2, 2020. (See Dkt. 10, Proof of Service [as to WP]). WP’s responsive pleading to the 27 Complaint was thus due no later than January 4, 2021. See Cal. Civ. Proc. Code § 415.20(a) 28 1 Fed. R. Civ. P. 4(e). Defendant Karnoprop, LLC (“KP”) was served with the summons and 2 complaint on December 15, 2020, by personal service. (See Dkt. 13, Proof of Service [as to KP]). 3 Accordingly, KP’s responsive pleading to the Complaint was due no later than January 5, 2021. 4 See Fed. R. Civ. P. 12(a). Defendant Paragon Parking, Inc. (“Paragon”) (collectively with WP and 5 KP, “defendants”) was served with the summons and complaint on December 4, 2020, by 6 substituted service, and the summons and complaint were mailed on December 7, 2020. (See 7 Dkt. 11, Proof of Service [as to Paragon]). Paragon’s responsive pleading to the Complaint was 8 due no later than January 7, 2021. See Cal. Civ. Proc. Code § 415.20(a); Fed. R. Civ. P. 12(a); 9 Fed. R. Civ. P. 4(e). On January 4, 2021, the parties filed a stipulation to extend defendants’ time 10 to respond to the complaint by 21 days. (See Dkt. 12, Joint Stipulation to Extend Time to Respond 11 to Initial Complaint). WP’s answer was thus due no later than January 25, 2021. KP’s answer 12 was due no later than January 26, 2021. Paragon’s answer was due no later than January 28, 13 2021. As of the date of this Order, defendants have not answered the complaint, nor has plaintiff 14 filed any request for entry of default.1 (See, generally, Dkt.). 15 A district court may dismiss an action for failure to prosecute or to comply with court orders. 16 Fed. R. Civ. P. 41(b); Link, 370 U.S. at 629-30, 82 S.Ct. at 1388 (authority to dismiss for failure 17 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 18 calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (district court may dismiss 19 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 20 should be imposed only after consideration of the relevant factors in favor of and against this 21 extreme remedy. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.1986). 22 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 23 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 24 25 1 On January 28, 2021, the parties filed a notice of provisional settlement, which was stricken by the court on February 2, 2021. (See Dkt. 16, Court’s Order of February 2, 2021). In its order 26 striking the provisional notice of settlement, the court again admonished the parties that “[f]ailure to comply with all case deadlines and the orders issued by the court in this case shall result in the 27 imposition of sanctions, including but not limited to, the dismissal of the action for failure to comply 28 with any applicable rules and/or court orders.” (Id.) (citing Fed. R. Civ. P. 41(b); Link, 370 U.S. 1 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 2 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); see 3 Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (“By its plain text, 4 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 5 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 6 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 7 independently to determine if the district court has abused its discretion.” Ferdik, 963 F.2d at 8 1261. 9 Having considered the Pagtalunan factors, the court is persuaded that this action should 10 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 11 file requests for entry of default hinders the court’s ability to move this case toward disposition and 12 indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 13 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [him] to 14 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 15 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 16 a request for entry of default would result in a dismissal of the action for lack of prosecution and 17 failure to comply with a court order. (See Dkt. 9, Court’s Order of December 1, 2020, at 2); see 18 also Ferdik, 963 F.2d at 1262 (“[A] district court’s warning to a party that his failure to obey the 19 court’s order will result in dismissal can satisfy the consideration of alternatives requirement.”) 20 (internal quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is 21 persuaded that the instant action should be dismissed for failure to comply with a court order and 22 failure to prosecute. 23 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 24 without prejudice, for failure to prosecute and comply with the orders of the court. 25 Dated this 8th day of February, 2021. 26 /s/ Fernando M. Olguin 27 United States District Judge 28