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2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 YONG KOO, ) Case No. CV 21-5200 FMO (JEMx) ) 11 Plaintiff, ) ) 12 v. ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE 13 MYRIAM S. LUGA, ) ) 14 ) ) 15 Defendant. ) ) 16 17 On July 15, 2021, the court issued a Standing Order Re: ADA Accessibility Cases (see Dkt. 18 9, Court’s Order of July 15, 2021), which ordered plaintiff to file a request for entry of default no 19 later than seven days after the time the response to the complaint would have been due by the 20 defendant. (Id. at 2). The court admonished plaintiff that “failure to seek entry of default within 21 seven [] days after the deadline to file a response to the complaint shall result in the dismissal of 22 the action and/or the defendant against whom entry of default should have been sought.” (Id. at 23 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, 24 1388 (1962)). 25 Here, defendant was served with the summons and complaint on September 25, 2021, by 26 personal service. (See Dkt. 10, Proof of Service). Accordingly, defendant’s responsive pleading 27 to the Complaint was due no later than October 18, 2021. See Fed. R. Civ. P. 12(a). As of the 28 1 date of this Order, defendant has not answered the complaint, nor has plaintiff filed a request for 2 entry of default. (See, generally, Dkt.). 3 A district court may dismiss an action for failure to prosecute or to comply with court orders. 4 Fed. R. Civ. P. 41(b); Link, 370 U.S. at 629-30, 82 S.Ct. at 1388 (authority to dismiss for failure 5 to prosecute necessary to avoid undue delay in disposing of cases and congestion in court 6 calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (district court may dismiss 7 action for failure to comply with any court order). Dismissal, however, is a severe penalty and 8 should be imposed only after consideration of the relevant factors in favor of and against this 9 extreme remedy. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.1986) 10 (per curiam). These factors include: “(1) the public’s interest in expeditious resolution of litigation; 11 (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) 12 the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases 13 on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d 14 at 1260-61); see Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (“By 15 its plain text, a Rule 41(b) dismissal . . . requires ‘a court order’ with which an offending plaintiff 16 failed to comply.”). “Although it is preferred, it is not required that the district court make explicit 17 findings in order to show that it has considered these factors and [the Ninth Circuit] may review 18 the record independently to determine if the district court has abused its discretion.” Ferdik, 963 19 F.2d at 1261. 20 Having considered the Pagtalunan factors, the court is persuaded that this action should 21 be dismissed for failure to comply with a court order and failure to prosecute. Plaintiff’s failure to 22 file a request for entry of default hinders the court’s ability to move this case toward disposition and 23 indicates that plaintiff does not intend to litigate this action. In other words, plaintiff’s 24 “noncompliance has caused [this] action to come to a complete halt, thereby allowing [her] to 25 control the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 26 (9th Cir. 1999) (internal quotation marks omitted). Further, plaintiff was warned that failure to file 27 a request for entry of default would result in a dismissal of the action for lack of prosecution and 28 1 Ferdik, 963 F.2d at 1262 (“[A] district court’s warning to a party that his failure to obey the court’s 2 order will result in dismissal can satisfy the consideration of alternatives requirement.”) (internal 3 quotation marks omitted). Thus, having considered the Pagtalunan factors, the court is persuaded 4 that the instant action should be dismissed for failure to comply with a court order and failure to 5 prosecute. 6 Based on the foregoing, IT IS ORDERED that judgment be entered dismissing this action, 7 without prejudice, for failure to prosecute and comply with the orders of the court. 8 Dated this 28th day of October, 2021. 9 /s/ 10 Fernando M. Olguin United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28