Velasquez v. Vivir Lounge Corp. d/b/a Vivir Lounge and Crescent House LLC

Background

Ricardo Velasquez began the action on April 30, 2024. Vivir Lounge Corp. was served on May 21, 2024, and Crescent House LLC was served on November 1, 2024. Neither defendant appeared as of January 17, 2025.

The court ordered Velasquez to file any motions for default judgment by March 31, 2025. He did not do so and also did not file proof of service as required. The court later ordered him to show why the case should not be dismissed for failure to prosecute. After Velasquez requested more time, the court extended the deadline and required him to file any default-judgment motion by July 22, 2025, serve the order on the defendants, and file proof of that service.

Velasquez filed proposed Clerk’s Certificates of Default and supporting declarations on July 21 and 22, 2025. He did not file motions for default judgment or proof that he had served the court’s order on the defendants.

Court’s analysis

Federal Rule of Civil Procedure 41(b) allows dismissal when a plaintiff fails to prosecute a case or comply with a court order. The court explained that it could issue this dismissal without a defendant’s motion. It applied five factors: the length of the noncompliance, whether the plaintiff was warned, possible prejudice to the defendants, the court’s need to manage its docket, and whether a lesser sanction would work.

The court found that all five factors favored dismissal. Velasquez had failed to comply with multiple orders despite extensions and warnings. The court had warned him twice that noncompliance could result in dismissal. The court also found that the defendants were unlikely to be prejudiced by ending the case because they had not appeared after being served and warned that they appeared to be in default. Finally, the court concluded that a lesser sanction was unlikely to be effective.

The court noted that requesting a Clerk’s Certificate of Default did not excuse Velasquez’s failure to file a motion for default judgment that complied with the court’s rules, including requirements concerning damages and supporting materials.

Disposition

The court dismissed the case for failure to prosecute. In its discussion, the court stated that the dismissal was without prejudice to Velasquez filing a new lawsuit. The court also directed counsel to serve Velasquez by mail with a copy of the order and file proof of service by November 14, 2025. Judge Margaret M. Garnett signed the order.