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NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Dasha Ossiko, 

Plaintiff, 

v. 

Amazing GLO LLC, et al., 

Defendants.

No. CV-17-04589-PHX-DJH

ORDER 

 This matter is before the Court on Plaintiff’s Motion for entry of Default (Doc. 31). 

Plaintiff filed this Motion after Defendants failed to comply with the Court’s Order to 

obtain new counsel. (Doc. 29). Defendants did not respond to the Motion and the time to 

do so has expired. 

I. Background 

 Plaintiff filed suit for unpaid wages under the Fair Labor Standards Act, 29 U.S.C. 

§§ 201-219 (“FLSA”) and the Arizona Minimum Wage Statutes. The Court granted 

Attorney Joshua Block’s Motion to withdraw as counsel for Defendants on August 14, 

2018. (Doc. 29). The Court Ordered that “Defendant Amazing GLO, LLC shall have 

through and including September 17, 2018 to retain new counsel and for new counsel to 

file a Notice of Appearance in this action. Defendants Ondranique Walls and Destiney 

Bell shall have through and including September 17, 2018 to either retain substitute counsel 

or file with this court a notice that they are representing themselves.” (Doc. 29). 

Defendants did not comply with that Order. On October 12, 2018, the Court issued an 

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Order to Defendants to show cause as to why default should not be entered against them 

for failure to abide by prior Court Orders and for an apparent failure to defend the case. 

(Doc. 32). Defendants were Ordered to show cause in writing by October 22, 2018. Nearly 

two months have passed, and no response has been filed by Defendants, nor has a notice 

of appearance been filed on behalf of the business defendant or a notice that the individual 

clients have chosen to represent themselves. For the reasons explained below, Plaintiff’s 

Motion will be granted. 

II. Applicable Law 

“Failure to follow a district court’s local rules is a proper ground for dismissal.” 

Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The Court may construe Plaintiff’s 

failure to respond to a motion as consent to the granting of the motion. See LRCiv 7.2(i) 

(failure to file a response to a motion may be deemed a consent to the granting of the motion 

and the Court may dispose of it summarily); see also Wystrach v. Ciachurski, 267 F. App’x 

606, 607 (9th Cir. 2008) (“The court also did not abuse its discretion in applying its local 

rule summarily to grant defendants’ motion because plaintiffs failed timely to respond.”); 

Doe v. Dickenson, 2008 WL 4933964 at *5 (D. Ariz. 2008) (“[t]he Court is entitled to treat 

Plaintiffs’ failure to respond as waiver of the issue and consent to Defendant’s argument); 

Currie v. Maricopa County Cmty. College Dist., 2008 WL 2512841, at * 2 n. 1 (D. Ariz. 

2008) (“Plaintiff does not respond to this argument, and her failure to do so serves as an 

independent basis upon which to grant [the] motion”). 

 Before dismissing a case or granting an unopposed motion for default, a district 

court must consider five factors: “(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 other 

party; (4) the public policy favoring the disposition of cases on the merits; and (5) the 

availability of less drastic sanctions.” Anheuser-Busch, Inc. v. Nat. Beverage Distributors, 

69 F.3d 337, 348 (9th Cir. 1995). The district court, however, “need not make explicit 

findings regarding these factors.” U.S. for Use & Ben. of Wiltec Guam, Inc. v. Kahaluu 

Const. Co., 857 F.2d 600, 603 (9th Cir. 1988). “Only in rare cases will [the Ninth Circuit 

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Court of Appeals] question the exercise of discretion in connection with the application of 

local rules.’” Ghazali, 46 F.3d at 53. 

III. Analysis 

 The Defendants’ actions in this case in failing to respond to Plaintiff’s Motion, and 

abide by Court Orders, including an Order to Show Cause, illustrate a failure to defend this 

case. The factors analyzed below weigh in favor of granting Plaintiff’s Motion. 

1. Resolution of Litigation 

 “[T]he public’s interest in expeditious resolution of litigation always favors 

dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 

Accordingly, the Court finds that the first factor weighs in favor of granting Plaintiff’s 

Motion. 

2. The Court’s Need to Manage its Docket 

 Defendants’ failure to respond to Court Orders and follow the Local Rules of this 

District, and their failure to respond to the present Motion have delayed expeditious 

resolution of the case, creating additional work for the Court. Moreover, Defendants’ 

failure to respond has halted the proceedings in this case, effectively allowing Defendants 

to control the pace of the litigation rather than the Court. See Yourish, 191 F.3d at 991 

(“Because the district judge was in a superior position to evaluate the effects of delay on 

[its] docket, we find that this factor strongly favors dismissal.”). This factor strongly 

weighs in favor of granting the Motion. 

3. Prejudice to Non-Movant 

 Failure to defend, on its own, is not sufficiently prejudicial to the non-movant to 

warrant dismissal of an action. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). Here, 

however, Defendants have not only failed to defend the case, but they have caused Plaintiff 

extra expense and uncertainty regarding the case. Defendants’ lack of response to Court 

Orders necessitated the filing of the present Motion. Additionally, Defendants have not 

responded to the Court’s Order to Show Cause to explain their lack of response and to 

determine whether to excuse the failure to respond. Moreover, Defendant Amazing Glo 

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LLC, as a corporation, is unable to proceed in this matter without an attorney. See Rowland 

v. Cal. Men’s Colony, Unit II Men’s Advisory Counsel, 506 U.S. 194, 201-202 (1993) (“It 

has been the law for the better part of two centuries . . . that a corporation may appear in 

federal courts only through licensed counsel.”) Therefore, this factor weighs in favor of 

dismissal as Defendants’ actions amount to more than mere failure to defend their case. 

4. Public Policy Favoring Disposition on Merits 

 With respect to public policy disfavoring the granting of a motion by default, this 

factor almost always weighs against dismissal. However, when balancing the public policy 

considerations of the disposition of the case on the merits, and the failure of Defendants to 

obey Court Orders and Local Rules, this factor does not outweigh the others. 

5. Less Drastic Sanctions 

The Court has issued two Orders to Defendants that have gone unanswered, one of 

which was an Order to Show Cause as to why default should not be entered against them. 

(Docs. 29 and 32). In addition, Defendants have not followed the Local Rules and have 

disregarded other Orders of this Court. The Court, as well as Plaintiff, cannot wait around 

until Defendants decide to defend this case. Therefore, at this point, the Court determines 

that less drastic sanctions do not exist, and that the granting of Plaintiff’s Motion for 

Default is warranted because less drastic actions have already been attempted to no avail. 

This factor does not weigh against dismissal. 

 The Court has given Defendants numerous opportunities, over the course of several 

months, to respond in some way. Defendants have not done so. Instead, they have chosen 

to ignore Court Orders and have failed to defend this matter. Based on the general lack of 

response to numerous Court Orders and based on the lack of response to the Motion for 

Default, and in consideration of the factors above, the Court will construe Defendants’ 

failure to respond as consent to granting the Motion pursuant to LRCiv 7.2(i). Therefore, 

the Court will grant the Plaintiff’s Motion. 

 IT IS HEREBY ORDERED that Plaintiff’s Motion for entry of Default (Doc. 31) 

is GRANTED. 

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IT IS FURTHER ORDERED directing the Clerk of Court to enter default against 

Defendants. 

Dated this 14th day of December, 2018. 

Honorable Diane J. Humetewa

United States District Judge 

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