1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MIKE ERSKINE, Case No.: 3:24-cv-01215-RBM-BLM

12 Plaintiff,

ORDER DISMISSING THIS ACTION

13 v. FOR FAILURE TO

PROSECUTE

14 RANDALL FRAGER, EASTLAB, LLC, 15 Defendant. 16 17 On November 15, 2024, this Court issued an Order to Show Cause (“OSC”) ordering 18 Plaintiff Mike Erskine (“Plaintiff”) to explain by December 2, 2024 “why this matter 19 should not be dismissed for failure to prosecute.” (Doc. 3 at 1.) Plaintiff had not filed a 20 proof of service demonstrating Defendant Randall Frager, the CEO of Eastlab, LLC, 21 (“Defendant”) was properly or timely served. In its OSC, the Court cautioned Plaintiff 22 “that failure to timely respond to this [OSC] will result in dismissal of this case.” (Id. at 23 2.) As of the date of this Order, Plaintiff has not responded to the OSC and has not filed a 24 proof of service or otherwise demonstrated that Defendant was properly served. 25 I. LEGAL STANDARD 26 Pursuant to Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served 27 within 90 days after the complaint is filed, the court—on motion or on its own after notice 28 to the plaintiff—must dismiss the action without prejudice against that defendant or order 1 that service be made within a specified time.” Fed. R. Civ. P. 4(m). However, “if the 2 plaintiff shows good cause for the failure, the court must extend the time for service for an 3 appropriate period.” Id. 4 Further, Federal Rule of Civil Procedure 41(b) grants district courts the inherent 5 authority to dismiss actions sua sponte for failure to prosecute or to comply with court 6 orders. In “[a]ctions or proceedings which have been pending in this court for more than 7 six months, without any proceeding or discovery having been taken therein during such 8 period, may, after notice, be dismissed by the Court for want of prosecution . . .” S.D. Cal. 9 Civ. R. 41.1(a). “The authority of a court to dismiss sua sponte for lack of prosecution has 10 generally been considered an ‘inherent power,’ governed not by rule or statute but by the 11 control necessarily vested in courts to manage their own affairs so as to achieve the orderly 12 and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962). 13 In considering whether to dismiss an action for failure to prosecute or comply with 14 a court order, the Court must weigh five factors: “(1) the public’s interest in expeditious 15 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice 16 to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public 17 policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 18 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 19 II. DISCUSSION 20 Although this matter has been pending for over six months, Plaintiff has not filed a 21 proof of service or any other document demonstrating that he has properly effected service 22 on Defendant under Federal Rule of Civil Procedure 4(m). Not only has Plaintiff failed to 23 timely serve Defendant in compliance with Rule 4(m), he also failed to demonstrate good 24 cause for his failure to prosecute. Accordingly, the factors outlined in Ferdick v. Bonzelet, 25 963 F.2d 1258, 1261 (9th Cir. 1992) weigh in favor of dismissal of this case. 26 As to the first factor, “[t]he public’s interest in expeditious resolution of litigation 27 always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 28 Plaintiff initiated this action in July 2024. (See Doc. 1.) Absent the Court’s issuance of 1 the OSC, no action has been taken in this case since Plaintiff filed the Complaint on July 2 16, 2024 (see Doc. 1). This protracted delay necessarily weighs in favor of dismissal. 3 As to the second factor, the Court must be able to manage its docket “without being 4 subject to routine noncompliance of litigants.” Pagtalunan, 291 F.3d at 642. By not 5 complying with the Court’s OSC, Plaintiff has “consumed some of the court’s time that 6 could have been devoted to other cases on the docket.” Id. Moreover, Plaintiff’s failure to 7 timely effect service “has resulted in a continued delay in the prosecution of this case and 8 has ‘impermissibly allowed [P]laintiff to control the pace of the docket rather than the 9 court.’” Johnson v. United States, No. 22-cv-1188-BAS-AGS, 2023 WL 2414266, at *2 10 (S.D. Cal. Mar. 7, 2023). The second factor therefore weighs in favor of dismissal. 11 As to the third factor, Plaintiff’s failure to comply with OSC risks prejudice to 12 Defendant because Defendant has not been afforded notice of the instant action pending 13 against him. The Court looks at “the strength of the plaintiff’s excuse for the default” in 14 weighing whether prejudice is sufficient to support dismissal. Malone v. U.S. Postal Serv., 15 833 F.2d 128, 131 (9th Cir. 1987) (citation omitted). Here, Plaintiff has offered none. 16 Thus, the third factor weighs in favor of dismissal. 17 As to the fourth factor, the Court has considered less drastic alternatives by issuing 18 the OSC and informing Plaintiff that the failure to respond would result in dismissal. See 19 Ferdik, 963 F.2d at 1262 (“[A] district court’s warning to a party that his failure to obey 20 the court’s order will result in dismissal can satisfy the “consideration of alternatives” 21 requirement.”). Plaintiff failed to comply or respond to the Court’s OSC. Any lesser 22 sanction, such as a monetary sanction, would not cure the delay in this case and Plaintiff’s 23 failure to comply with Rule 4(m). See In Re Eisen, 31 F.3d 1447, 1455 (9th Cir. 1994) 24 (finding dismissal was the only proper sanction). This weighs in favor of dismissal. 25 The fifth factor does not favor dismissal, as public policy favors disposition of cases 26 on the merits. See Pagtalunan, 291 F.3d at 643. Though the fifth factor weighs against 27 dismissal, the cumulative weight of the other factors overcomes it. See id. (finding district 28 court did not abuse its discretion in dismissing case where three of the five factors weighed 1 favor of dismissal). The Court finds the balance of the factors favors dismissal for 2 || Plaintiffs failure to prosecute. 3 Ht. CONCLUSION 4 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 5 || based on Plaintiff’s failure to prosecute and effect timely service pursuant to Federal Rule 6 || of Civil Procedure 41(b) and 4(m), respectively. See Johnson, 2023 WL 2414266, at *3 7 (dismissing case without prejudice due to the plaintiff's failure to prosecute and comply 8 || with the Court’s order to show cause requiring completion of service of process or 9 ||submission of request for extension of time for service); see also O’Brien v. Visa USA, 10 || Inc., 225 Fed. App’x 677, 678 (9th Cir. 2007) (affirming dismissal for failure to prosecute 11 || and failure to timely effect service pursuant to Rule 4(m)). 12 The Clerk of Court is DIRECTED to close this case. 13 IT IS SO ORDERED. 14 ||}DATE: April 7, 2025 I FR ermine (A pittagyD 16 HON. RUTH BERMUDEZ'MONTENEGRO

UNITED STATES DISTRICT JUDGE

17 18 19 20 21 22 23 24 25 26 27 28