Lasco v. Carson Corporate Fitness, Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court considered a case where the plaintiff failed to serve the defendant within the time required by Rule 4(m) and failed to respond to an Order to Show Cause. The court dismissed the case without prejudice for failure to prosecute and directed the Clerk to close the case.
| What the court decided | The model |
|---|---|
Dismissal of the case without prejudice for failure to prosecute“Accordingly, the Court DISMISSES case without prejudice for failure to prosecute.” | agree with court The court correctly applied Rule 4(m), which mandates dismissal or an order for service if the defendant is not served within 90 days. The plaintiff failed to serve by the deadline and failed to respond to the Order to Show Cause. Dismissal without prejudice is the standard remedy for failure to prosecute or failure to comply with Rule 4(m) when no excusable neglect is shown. |
The order itself: sound — The order correctly identifies the procedural default under Rule 4(m) and the inherent power to dismiss for failure to prosecute. It notes that the plaintiff failed to respond to the Order to Show Cause. The dismissal without prejudice is appropriate given the lack of proof of service or response.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BERNARDUZ LASCO, Case No. 25-cv-0228-BAS-KSC 12 Plaintiff, ORDER DISMISSING CASE FOR 13 v. FAILURE TO PROSECUTE 14 CARSON CORPORATE FITNESS, INC., 15 Defendant. 16 17 18 Plaintiff commenced this action against Carson Corporate Fitness, Inc. 19 (“Defendant”) on January 31, 2025. (ECF No. 1.) Rule 4(m) of the Federal Rules of Civil 20 Procedure provides that if the defendant is not served within ninety days after the complaint 21 is filed, the court must dismiss the action against the defendant or order that service be 22 made within a specific time. In addition, a district court has inherent power to dismiss an 23 action if the plaintiff fails to prosecute the case. Link v. Wabash R.R., 370 U.S. 626, 630– 24 31 (1962). 25 Plaintiff’s deadline to complete service under Rule 4(m) lapsed on May 1, 2025. See 26 Fed. R. Civ. P. 4(m). On May 21, 2025, this Court issued an Order to Show Cause as to 27 why the case should not be dismissed for a failure to prosecute, given that Plaintiff had 28 filed no proof of service. (ECF No. 3.) The Court gave Plaintiff until June 11, 2025, to 1 ||respond to the Order to Show Cause. Plaintiff was informed that they could show cause by 2 || filing proof of service on the docket. That deadline has come and gone yet Plaintiff has still 3 || failed to file any proof of service on the docket or otherwise given cause as to why this 4 || case should not be dismissed for failure to prosecute. Accordingly, the Court DISMISSES 5 case without prejudice for failure to prosecute. See Link, 370 U.S. at 630-31. The Clerk 6 || of Court is directed to close the case. 7 IT IS SO ORDERED. 8 9 || DATED: June 16, 2025 yatta Bahar 10 H@¢n. Cynthia Bashant, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28