Jason Alan v. American Micromarkets, Inc. et al

Filing 13

ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge Fernando M. Olguin: Pursuant to the Order to Show Cause for Lack of Prosecution 12 issued 12/18/2015, and plaintiff's failure to timely respond, IT IS ORDERED that the above-captioned case is dismissed, without prejudice, for lack of prosecution and failure to comply with the orders of the court. See Fed. R. Civ. P. 41(b). (cw)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JASON ALAN, individually and on behalf )
of all others similarly situated,
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Plaintiff,
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v.
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AMERICAN MICROMARKETS, INC.
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d.b.a. MARKOTS,
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Defendant.
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Case No. CV 15-7259 FMO (KSx)

ORDER DISMISSING ACTION WITHOUT
PREJUDICE

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Plaintiff filed his Complaint on September 16, 2015. By order dated December 17, 2015,

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plaintiff was ordered to show cause why this action should not be dismissed for plaintiff's failure

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to complete service of the summons and complaint as required by Rule 4(m) of the Federal Rules

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of Civil Procedure. (See Court’s Order of December 17, 2015). On the same date, plaintiff filed

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a proof of service reflecting service on defendant. (See Proof of Service). Pursuant to the date

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of service, defendant’s answer was due on November 3, 2015. (See id.).

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On December 18, 2015, plaintiff was again ordered to show cause, on or before December

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23, 2015, why this action should not be dismissed for lack of prosecution. (See Court’s Order of

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December 18, 2015). Plaintiff was advised that either an answer or an application for entry of

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default had to be filed by the deadline set forth in the Court’s Order of December 18, 2015. (See

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id.). As of the filing date of this Order, no answer or request for entry of default has been filed.

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Indeed, plaintiff did not file any response to the Order to Show Cause.

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A district court may dismiss an action for failure to prosecute or to comply with court orders.

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Fed. R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386 (1962)

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(authority to dismiss for failure to prosecute necessary to avoid undue delay in disposing of cases

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and congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert.

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denied, 506 U.S. 915, 113 S.Ct. 321 (1992) (district court may dismiss action for failure to comply

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with any court order). Dismissal, however, is a severe penalty and should be imposed only after

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consideration of the relevant factors in favor of and against this extreme remedy. Thompson v.

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Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829, 107

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S.Ct. 112 (1986). These factors include: (1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)

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the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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sanctions. Id.; Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).

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Pursuant to Rule 41(b) and the court’s inherent power to achieve the orderly and

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expeditious disposition of cases, see Link, 370 U.S. at 629-30, 82 S.Ct. at 1388, and in light of the

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factors outlined in Henderson, supra, dismissal of this action without prejudice is appropriate.

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Plaintiff’s failure to file a request for entry of default or otherwise respond to the OSC makes it

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impossible for this action to move forward. Accordingly, IT IS ORDERED that the above-captioned

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case is dismissed, without prejudice, for lack of prosecution and failure to comply with the orders

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of the court. See Fed. R. Civ. P. 41(b).

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Dated this 29th day of December, 2015.

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/s/
Fernando M. Olguin
United States District Judge

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