Ortega v. Astrue et al

Filing 24

REPORT AND RECOMMENDATION re 22 MOTION to Dismiss Case Petitioner's Original Complaint for Writ in the Nature of Mandamus : Recommending that Respondents' Motion to Dismiss be granted. The parties have 10 days from the date of service to file specific written objections. Signed by Magistrate Judge Hector C Estrada on 9/19/08. (CKM, )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending before the Court is Respondents' Motion to Dismiss (Doc. No. 22). For the following reasons, the Magistrate Judge recommends that the District Court, grant Respondents' Motion to Dismiss. I. FACTUAL AND PROCEDURAL BACKGROUND On September 17, 2007, Petitioner Olga Clarissa Ortega, through counsel, filed an "Original Complaint for Writ in the Nature of Mandamus." (Doc. No. 1) Petitioner seeks an order from this Court directing the Social Security Administration to issue her a Social Security card. In November 2007, Petitioner's counsel moved to withdraw citing "irreconcilable differences." (Doc. No. 6) Attached to the Amended Motion to Withdraw was Petitioner's signed "Consent for Withdrawal" wherein she indicated that she would seek alternative vs. Michael J. Astrue; et. al., Respondents. Olga Clarissa Ortega, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 07-463-TUC-JMR (HCE) REPORT & RECOMMENDATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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counsel or represent herself. (Doc. No. 6-2) On November 7, 2007, the Court granted the Amended Motion to Withdraw. (Doc. No. 8) On February 20, 2008, Petitioner appeared pro se for a scheduling conference and requested an extension in order to obtain counsel. (See Doc. No. 17) The Court granted Petitioner's request, stayed the matter until June 2, 2008, and set a status hearing for June 2, 2008. (Id.) The Court provided that if Petitioner's counsel filed a notice of appearance prior to June 2, 2008, then the status hearing would be vacated. (Id.) Petitioner was also advised that pro se litigants must abide by the same rules of procedure that govern other litigants and failure to do so may result in dismissal of her case. (Id. at p.2) On June 2, 2008, Petitioner, acting pro se, and counsel for Respondents appeared at the status hearing. Petitioner informed the Court that she had been unable to obtain counsel. The Court stayed the matter until July 2, 2008 and set another status hearing for that date. (Doc. No. 19) On July 2, 2008, prior to the time set for the status hearing, Petitioner telephoned the Court to state that she was unable to appear for the hearing due to a family medical emergency and waived her appearance. (See Doc. No. 21) Respondents indicated that they intended to a file Motion to Dismiss within the next thirty days. (Id.) The Court lifted the previously entered stay. (Id.) On July 25, 2008, Respondents filed the instant Motion to Dismiss. (Doc. No. 22) Respondents argue that there is no case or controversy before the Court and that the Complaint sets forth no grounds upon which the Court can exercise subject matter jurisdiction. (Id.) On July 28, 2008, the Court entered an Order informing Petitioner that, inter alia, pursuant to L.R.Civ. 7.2(i) of the Rules of Practice of the U.S. District Court for the District of Arizona, her failure to file a response to Respondents' Motion to Dismiss on or before August 25, 2008 may be deemed as her consent to the granting of that Motion and that this action may be dismissed without further notice. (Doc. No. 23)

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The time for Petitioner to respond to Respondents' Motion to Dismiss has passed and Petitioner has not filed a response. Nor has she made any filing with the Court since Respondents' Motion was filed. II. DISCUSSION Pursuant to L.R.Civ. 7.2(i), Rules of Practice of the U.S. District Court for the District of Arizona, a party's failure "to serve and file the required answering memoranda [to a motion]...may be deemed a consent to the...granting of the motion and the Court may dispose of the matter summarily." L.R.Civ. 7.2(i). The Ninth Circuit has held that "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.), cert. den., 516 U.S. 838 (1995). In Ghazali, the Ninth Circuit affirmed the Nevada district court's dismissal of an action pursuant to a local rule similar to L.R.Civ. 7.2(i) where the pro se plaintiff failed to file an opposition to the defendant's motion to dismiss. Id. The Ghazali court noted that the trial court, in exercising its discretion to dismiss the action, is "required to weigh several 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 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.'" Id. (quoting See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The Ninth Circuit "may affirm a dismissal where at least four factors support dismissal...or where at least three factors `strongly' support dismissal.'" Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). A. Interest in expeditious resolution of litigation

"[T]he public's interest in expeditious resolution of litigation always favors dismissal." Id. B. Docket management

The trial court is in the best position to decide when delay in a particular case interferes with docket management and the public interest. Id.; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). "It is incumbent upon the Court to manage its docket without -3-

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being subject to routine noncompliance of litigants such as [Petitioner.]" Pagtalunan, 291 F.3d at 642. Petitioner's failure to timely respond results in Petitioner controlling the pace of the docket rather than the Court. See Yourish, 191 F.3d at 990 (court's need to manage its docket "strongly favor[ed] dismissal" where the plaintiff's noncompliance "caused the action to come to a complete halt" thus resulting in the plaintiff "controlling the pace of the docket rather than the [c]ourt."); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (the court's interest in docket control "strongly support[ed]" dismissal where, inter alia, the plaintiff's failure to comply with the court's order "consumed large amounts of the court's valuable time that it could have devoted to other major and serious criminal and civil cases on its docket.") This factor strongly favors dismissal. C. Risk of prejudice to Defendant

"[T]he risk of prejudice to the [respondent] is related" to the strength of the petitioner's excuse for the default. Yourish, 191 F.3d at 991. See also Pagtalunan, 291 F.3d at 643 (same). The Ninth Circuit has found that a "paltry excuse for" the petitioner's noncompliance constitutes sufficient evidence to weigh strongly in favor of dismissal. Yourish, 191 F.3d at 991. Petitioner has not offered a reason for her failure to respond to Respondents' Motion. Like the plaintiff in Ghazali, Petitioner herein "was given ample time to respond to the motion dismiss." Ghazali, 46 F.3d. at 54. She has failed to provide any reason whatsoever for her failure to respond to Respondents' arguments that her case should be dismissed. On the this record, the issue of prejudice tips the balance in favor of dismissal. D. Public policy favoring disposition of cases on their merits

"Public policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal." Pagtalunan, 291 F.3d at 643 (citing Hernandez, 138 F.3d at 399). E. Availability of less drastic alternatives

"The district court need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful alternatives." Henderson, 779 -4-

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F.2d at 1424 (citation omitted). The Court has warned Petitioner on more than one occasion that pro se litigants are bound by the rules of procedure and that her failure to comply with the rules or the Court's orders may result in dismissal. (See Doc. Nos. 11 at p.5, 17 at pp.1-2) Additionally, the Court specifically warned Petitioner of the consequences of her failure to respond to Respondents' Motion to Dismiss. (Doc. No. 23) Petitioner's failure to respond despite the Court's express warning of the consequences supports the conclusion that imposition of less drastic sanctions would not be beneficial. See Henderson, 779 F.2d 1421(affirming dismissal where plaintiff failed to meet scheduling deadlines despite court's express warning of consequences); Ferdik, 963 F.2d at 1262 ("Moreover, our decisions also suggest that a district court's warning to a party that failure to obey the court's order will result in dismissal can satisfy the `consideration of [less drastic sanctions]'requirement."). Indeed, in such a case as this, the Ninth Circuit has affirmed dismissal. Ghazali, 46 F.3d 52. III. CONCLUSION The Court is not unsympathetic to Petitioner's pro se status. Nonetheless, it is wellsettled that "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also Ghazali, 46 F.3d at 54 (recognizing that "pro se litigants are bound by the rules of procedure" when affirming dismissal of case for failure to comply with local rule under same factors considered herein). Like the plaintiff in Ghazali, Petitioner herein "did not follow" the rules of procedure and, thus, granting Respondents' Motion to Dismiss pursuant to L.R.Civ. 7.2(i) is appropriate. See Ghazali, 46 F.3d 52. ("Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure ...Ghazali did not follow them, and his case was properly dismissed."). IV. RECOMMENDATION For the foregoing reasons, the Magistrate Judge recommends that the District Court grant Respondents' Motion to Dismiss (Doc. No. 22) pursuant to L.R.Civ. 7.2(i), Rules of Practice of the U.S. District Court for the District of Arizona and dismiss this action.

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Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within ten days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within ten days after being served with a copy thereof. Fed.R.Civ.P. 72(b). If objections are filed, the parties should use the following case number: CV 07-463-TUC-JMR. If objections are not timely filed, then the parties' right to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 540 U.S. 900 (2003). DATED this 19th day of September, 2008.

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