Opinion
EDCV 23-1693JGB (PVCx)
01-24-2024
Nelson Chilin v. George Wong., et al
MAYNOR GALVEZ
MAYNOR GALVEZ
PRESENT: THE HONORABLE JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
CIVIL MINUTES-GENERAL
Proceedings: Order to Show Cause; and Limited Scheduling Order (IN CHAMBERS)
I. Order to Show Cause
Absent a showing of good cause, an action must be dismissed without prejudice if the summons and complaint are not served on a defendant within 90 days after the complaint is filed. Fed. R. Civ. Proc. 4(m). Generally, defendants must answer the complaint within 21 days after service (60 days if the defendant is the United States). Fed R. Civ. Proc. 12(a)(1).
In the present case, it appears that one or more of these time periods has not been met. Accordingly, the Court, on its own motion, orders plaintiff to show cause in writing on or before February 5, 2024, why this action should not be dismissed as to the applicable defendants for lack of prosecution. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the Court finds that this matter is appropriate for submission without oral argument. The Order to Show Cause will stand submitted upon the filing of a responsive pleading or motion on or before the date upon which a response by the plaintiff is due.
II. Limited Scheduling Order
The Court presides over many cases under the Americans with Disabilities Act (“ADA”) involving physical barriers in places of public accommodation. Most of these cases are brought by a small number of repeat plaintiffs and an even smaller number of law firms. With respect to these cases, the Court finds:
1. The small number of repeat law firms in this area rarely prosecute their cases until the Court issues an order to show cause.
2. Many of these cases result in defaults, which subsequently requires that the Court send three orders to show cause: one for failure to serve, one for failure to seek entry of default, and one for failure to move for default judgment.
3. Given the enormous number of these cases, the need to track the lack of prosecution in these cases and send repeated orders to show cause has placed a significant burden on the limited resources of the Court.
Therefore, the Court finds there is good cause to institute a limited scheduling order concerning prosecution for ADA cases involving physical barriers in places of public accommodation. In such cases:
1. Proofs of Service: Proofs of service for all defendants must be filed within 90 days of the filing of the case absent a previously approved extension of time by the Court or a motion or responsive pleading by all defendants. The Court expects that the Complaint will be served on all parties promptly after filing.1
2. Requests for Default: For any defendant who fails to respond to the Complaint within the time provided by the Federal Rules of Civil Procedure and for whom no extension has been granted, a request for default must be filed. Here, the Court orders Plaintiff to file a request for default no later than February 5, 2024.
3. Motions for Default Judgment: If only defaulted defendants remain in the case - that is, no other defendants were named or the claims against all other defendants have been resolved either by dismissal, motion, or trial - a motion for default judgment must be filed within 30 days of the last entry of default. Note that the Court is not generally inclined to enter partial default judgments, and, therefore, a motion for default judgment should not be filed if some defendants have appeared and the case has not otherwise been completely resolved.
This Order serves as notice that failure to comply with any of the requirements set forth in this Order will result in dismissal of the action in its entirety and/or the defendant that is the subject of the required proof of service, request for default, or motion for default judgment. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962). Failure to comply may also result in monetary sanctions.
IT IS SO ORDERED.