Unreported / Non-Citable
Background
Julio Cruz filed this case in July 2026 against Andres L. Perez, doing business as Andy Beuaty Salon & Barber, and Reshad S. Shah, alleging construction-related accessibility claims under the Americans with Disabilities Act and state law. That same month, Cruz filed a notice of voluntary dismissal as to Perez, and the court dismissed the state law claims, leaving only the ADA claim against Shah.
On October 15, 2026, the court issued an order to show cause regarding dismissal for lack of prosecution, noting that Cruz had not filed a proof of service even though 90 days had passed since the complaint was filed. The court set a response deadline of October 19, 2026, and specifically warned that failure to file a timely and appropriate response could result in dismissal without further order or notice. Days after the deadline passed, Cruz had filed nothing.
The court proceeded to analyze dismissal under two independent bases: Federal Rule of Civil Procedure 4(m), which addresses failure to serve a defendant within 90 days, and the court's inherent authority to control its docket, applied through the five-factor framework set out in Pagtalunan v. Galaza.
The Court’s Holding
The court held that dismissal was required under Federal Rule of Civil Procedure 4(m), which provides that 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. Because the court gave notice and no proof of service was filed, dismissal was mandatory.
The court also independently justified dismissal under its inherent power to control its docket and Rule 41(b), applying the five factors from Pagtalunan v. Galaza. The public's interest in expeditious resolution favored dismissal, as did the court's need to manage its docket without routine noncompliance. The risk of prejudice to Shah was neutral because it was uncertain whether Shah had been properly served. The availability of less drastic alternatives favored dismissal because the court had already warned Cruz that failure to respond would result in dismissal. The public policy favoring disposition on the merits was neutral because Cruz's own failure to prosecute lessened its weight.
On balance, the court found the factors weighed in favor of dismissal and ordered the case dismissed without prejudice under Rule 41(b) and Rule 4(m).
Key Takeaways
- A plaintiff who fails to file a proof of service within 90 days, after notice and an opportunity to respond, faces mandatory dismissal without prejudice under Rule 4(m).
- A court's express warning that failure to respond to an order to show cause will result in dismissal can satisfy the requirement to consider less drastic alternatives before dismissing for failure to prosecute.
- The public policy favoring disposition on the merits carries little weight when the plaintiff's own inaction has prevented the case from moving forward.
- The risk-of-prejudice factor may be treated as neutral when it is uncertain whether the defendant was ever properly served.
- District courts retain inherent authority to dismiss a case sua sponte for failure to prosecute or comply with court orders, independent of Rule 4(m).
Why It Matters
This order illustrates the procedural consequences of failing to effectuate timely service and respond to a court's order to show cause. It reinforces that plaintiffs bear the responsibility to move their cases forward and that courts will not hesitate to dismiss actions that stall due to a plaintiff's inaction, particularly after a clear warning.
The decision also demonstrates how the Ninth Circuit's five-factor framework for failure-to-prosecute dismissals operates in tandem with Rule 4(m)'s mandatory dismissal provision, showing that a court may rely on either basis independently to dismiss a case without prejudice.