United States District Court, C.D. California
ORDER DISMISSING ACTION AS TO CERTAIN DEFENDANTS; AND
ORDER TO SHOW CAUSE RE: SERVICE
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
IAND8, Inc. owns and operates the Museum of Ice Cream
(“MOIC”), a “pop-up” museum featuring
ice cream-themed exhibits that sprinkles in bright playful
colors, upbeat music, and “Instagramable”
moments. (Compl. ¶¶ 18, 21, ECF No. 1.) Defendants
are West 54th, LLC, which owns and operates Art of Ice Cream
Experience (“AOICE”), another ice cream-themed
exhibit based in Scottsdale, Arizona, and Deborah Fiorentino,
an Arizona citizen and one of the owners of West 54
(collectively, “Moving Defendants”). (Compl.
¶¶ 3, 4, 26.) Plaintiff also named, but has not
served, TIX, INC. and Robert Edminson as defendants.
January 26, 2018, the Court granted Moving Defendants'
Motion to Dismiss for Lack of Personal Jurisdiction, or
Alternatively to Transfer Venue (Order, ECF No. 31.) In its
Order, the Court granted Plaintiff leave to amend within
twenty-one days from the date of the Court's Order.
(Id. at 12.) Plaintiff's amended complaint was
due on, or before, February 16, 2018. To date, Plaintiff has
not filed an amended complaint.
DISMISSAL OF CLAIMS AGAINST MOVING DEFENDANTS
Rule of Civil Procedure 41(b) allows a party, or the Court,
to dismiss an action “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court
order….” “Under Ninth Circuit precedent,
when a plaintiff fails to amend his complaint after the
district judge dismisses the complaint with leave to amend,
the dismissal is typically considered a dismissal for failing
to comply with a court order rather than for failing to
prosecute the claim.” Yourish v. California
Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). The Ninth
Circuit reviews a dismissal under these rules for abuse of
the Court granted Plaintiff twenty-one days to amend from the
date of the Court's Order dismissing the Complaint.
(Order 12, ECF No. 31.) Plaintiff's deadline to amend has
now passed, and it has not filed an amended complaint, or
sought relief from this deadline.
dismissing an action for failure to comply with a court
order, the Court considers: “(1) the public's
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of
prejudice to the defendants; (4) the public policy favoring
disposition of cases on their merits; and (5) the
availability of less drastic alternatives.”
Hernandez v. City of El Monte, 138 F.3d 393, 399
(9th Cir. 1998) (quoting Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986)). The Ninth Circuit affirms
“a dismissal where at least four factors support
dismissal, …or where at least three factors
‘strongly' support dismissal.”
Yourish, 191 F.3d at 990 (quoting Ferdik v.
Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992)).
“Although it is preferred, it is not required that the
district court make explicit findings in order to show that
it has considered these factors and [the appeals court] may
review the record independently to determine if the district
court has abused its discretion.” Ferdik, 963
F.2d at 1261.
Ninth Circuit has recognized that the first and fourth
factors cut in opposite directions. See Yourish, 191
F.3d at 990 (first factor always weighs in favor of
dismissal); Hernandez, 138 F.3d at 401 (fourth
factor always weighs against dismissal). Here, the second
factor weighs in favor of dismissal. The Court must manage
its docket to ensure the efficient provision of justice, and
Plaintiff's failure to comply with a Court Order
interferes with the Court's ability to effectively manage
third factor addresses the potential risk of prejudice to the
defendants. Here, the risk of prejudice to the Moving
Defendants is slight, to non-existent. If, after the Court
dismisses the action, Plaintiff does not seek reconsideration
or other relief, then the Moving Defendants will have won. In
the event that it does seek reconsideration, and the Court
grants it, the Moving Defendants may continue to defend the
the availability of less drastic sanctions, Plaintiff's
failure to file an amended complaint, or seek other relief,
weighs in favor of dismissal. The Court provided Plaintiff
adequate time to draft and file an amended complaint
establishing personal jurisdiction. Plaintiff is represented
by counsel who should be well aware of the Court's
instruction, and thus cannot claim ignorance of deadlines or
procedural requirements. Five days have passed since the
deadline for Plaintiff to amend its Complaint, but it still
has not sought relief from the Court.
balance, the factors set forth in Hernandez weigh in
favor of dismissing this action. Yourish, 191 F.3d
at 990. Accordingly, the Court DISMISSES, WITH PREJUDICE,
Plaintiff's action against the Moving Defendants.
ORDER TO SHOW CAUSE
filed its Complaint on November 9, 2017, and the Clerk issued
summons as to defendants TIX, INC., and Robert Edminson, on
November 14, 2017. (ECF Nos. 1, 14, 15.) Federal Rule of
Civil Procedure 4(m) provides: “If a defendant is not
served within 90 days after the complaint is filed, the
court-on motion or on its own after notice to the
plaintiff-must dismiss the action without prejudice against
that defendant or order that service be made within a
specified time.” Ninety days has passed since Plaintiff
filed its Complaint, yet Plaintiff still has not filed a
proof of service as to defendants TIX, INC. and Robert
Edminson. Accordingly, the Court ORDERS Plaintiff TO SHOW
CAUSE, in writing, why the Court should not dismiss
Plaintiffs action ...