Case 2:22-cv-02816-FMO-MRW Document 12 Filed 06/15/22 Page 1 of 3 Page ID #:36

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 CRYSTAL REDICK, ) Case No. CV 22-2816 FMO (MRWx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 BARTELL HOTELS MANAGEMENT )

COMPANY, )

14 ) Defendant. ) 15 ) 16 On May 3, 2022, the court issued a Standing Order Re: ADA Accessibility Cases (see Dkt. 17 10, Court’s Order of May 3, 2022), which ordered plaintiff to file a request for entry of default no 18 later than seven days after the time the response to the complaint would have been due by the 19 defendant. (Id. at 2). The court admonished plaintiff that “failure to seek entry of default within 20 seven [] days after the deadline to file a response to the complaint shall result in the dismissal of 21 the action and/or the defendant against whom entry of default should have been sought.” (Id. at 22 2-3) (citing Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 23 1388 (1962)). 24 Here, defendant was served with the summons and complaint on May 15, 2022, by 25 substituted service.1 (See Dkt. 11, Proof of Service). Accordingly, defendant’s responsive 26 27 1 Plaintiff mailed a copy of the summons and complaint to defendant on May 5, 2022. (See Dkt. 11, Proof of Service). Accordingly, the effective date of service was 10 days later, or May 15, 28 2022. See Cal. Civ. Proc. Code § 415.20 (“Service of a summons in this manner is deemed complete on the 10th day after the mailing.”). Case 2:22-cv-02816-FMO-MRW Document 12 Filed 06/15/22 Page 2 of 3 Page ID #:37

1 pleading to the Complaint was due no later than June 5, 2022. See Fed. R. Civ. P. 12(a). As of 2 the date of this Order, defendant has not answered the complaint, nor has plaintiff filed a request 3 for entry of default. (See, generally, Dkt.). 4 A district court may dismiss an action for failure to prosecute or to comply with court orders. 5 Fed. R. Civ. P. 41(b); Link, 370 U.S. at 629-30, 82 S.Ct. at 1388 (authority to dismiss for failure 6 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 7 calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (district court may dismiss 8 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 9 should be imposed only after consideration of the relevant factors in favor of and against this 10 extreme remedy. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.1986). 11 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 12 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 13 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 14 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); see 15 Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (“By its plain text, 16 a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff failed to 17 comply.”). “Although it is preferred, it is not required that the district court make explicit findings 18 in order to show that it has considered these factors and [the Ninth Circuit] may review the record 19 independently to determine if the district court has abused its discretion.” Ferdik, 963 F.2d at 20 1261. 21 Having considered the Pagtalunan factors, the court is persuaded that this action should 22 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 23 file a request for entry of default hinders the court’s ability to move this case toward disposition and 24 indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 25 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [her] to 26 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 27 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 28 a request for entry of default would result in a dismissal of the action for lack of prosecution and 2 Case 2:22-cv-02816-FMO-MRW Document 12 Filed 06/15/22 Page 3 of 3 Page ID #:38

1 failure to comply with a court order. (See Dkt. 10, Court’s Order of May 3, 2022, at 3); see also 2 Ferdik, 963 F.2d at 1262 (“[A] district court’s warning to a party that his failure to obey the court’s 3 order will result in dismissal can satisfy the consideration of alternatives requirement.”) (internal 4 quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is persuaded 5 that the instant action should be dismissed for failure to comply with a court order and failure to 6 prosecute. 7 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 8 without prejudice, for failure to prosecute and comply with the orders of the court. 9 Dated this 15th day of June, 2022. 10 /s/ 11 Fernando M. Olguin United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3