Calin Gatison v. Carolyn W. Colvin

Filing 20

MINUTE ORDER TO SHOW CAUSE by Magistrate Judge Margaret A. Nagle. Response to Order to Show Cause due by 8/10/2015. (Attachments: # 1 Notice of Dismissal Form) (mz)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-226-FMO (MAN)

Title

Calin Gatison v. Carolyn W. Colvin

Present: The
Honorable

Date

July 20, 2015

MARGARET A. NAGLE, UNITED STATES MAGISTRATE JUDGE
Mel Zavala

N/A

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

N/A

N/A

Proceedings:

(In Chambers) Order

On April 27, 2015, defendant filed a Motion to Dismiss (“Motion”). By the Motion, defendant
contends that this action should be dismissed for lack of jurisdiction, because the Administrative
Law Judge (“ALJ”) dismissed plaintiff’s request for a hearing after plaintiff failed to appear, rather
than issuing a final decision within the meaning of 42 U.S.C. § 405(g). (Motion at 2; see also
Exhibit 3 at 4-5.)
On April 30, 2015, the Court issued an Order To Show Cause why the Motion should not be
granted. On May 20, 2015, plaintiff filed his Response To The Order To Show Cause (“Response”).
In the Response, plaintiff asserts that, when his name was called for the 10:00 a.m. hearing before
the ALJ, he was “standing in line to be searched” and his attorney was in the hearing hall.
(Response at 4-5.) When he entered the hearing hall ten minutes later, plaintiff was “not allowed
a hearing.” (Id. at 5.) Plaintiff’s attorney subsequently asked for a hearing, and his request was
denied. (Id.) The ALJ then dismissed plaintiff’s request for a hearing on the grounds that “neither
the claimant nor his representative appeared.” (Response, Exh. 2.)
Plaintiff’s attorney then filed a Motion To Vacate Dismissal (“Motion To Vacate”), which asserted,
as plaintiff does in his Response, that plaintiff’s attorney was present and ready to proceed at the
scheduled start time of the hearing, even though plaintiff arrived 20 minutes late. (Response, Exh
1.)
Because an ALJ is not permitted to dismiss a claimant’s request for a hearing when the claimant’s
appointed representative appears at the hearing, the Court ordered defendant to file a Reply to
plaintiff’s Response. On July 15, 2015, defendant filed the Reply, which contends that the Motion
should be granted, because: (1) neither plaintiff nor his counsel offered affidavits or other
competent evidence verifying their statements; (2) the record of the hearing does not reflect that
counsel was present as plaintiff claims; and (3) prior to the hearing date, neither counsel nor plaintiff
returned the Acknowledgment of Receipt (Notice of Hearing) or the Notice of Hearing – Important
CV-90 (10/08)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-226-FMO (MAN)

Date

Title

July 20, 2015

Calin Gatison v. Carolyn W. Colvin

Reminder. (Reply at 2.)
It appears that dismissal is warranted, because plaintiff’s version of the facts is unverified and he
has provided no competent proof of his allegations that the Court has subject matter jurisdiction.
See Kokkonen v. Guardian Life Ins. Co. Of America, 511 U.S. 375, 377 (1994) (when presented
with a motion to dismiss for lack of subject matter jurisdiction, a plaintiff has the burden to
demonstrate that the Court has jurisdiction); see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir.
2000) (the court need not presume the truthfulness of the plaintiff’s allegations under a factual
attack); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (the court may review any
evidence, such as affidavits, to resolve factual disputes about the existence of jurisdiction).
Nevertheless, the Court believes it is appropriate to provide plaintiff one last opportunity to be heard
on this issue.
Accordingly, on or before August 10, 2015, plaintiff is ORDERED TO SHOW GOOD CAUSE,
if any exists, why the Court should not grant the Motion, and further, he must submit competent
evidence, such as an affidavit signed under penalty of perjury, supporting his allegations.
Alternatively, if plaintiff no longer opposes the Motion, he may satisfy his obligation under this
Order by filing a Notice of Dismissal.
The Clerk is directed to send to plaintiff a copy of Form CV-009 (Notice of Dismissal Pursuant to
Federal Rules of Civil Procedure 41(a) or (c)).
Plaintiff is expressly cautioned that his failure to timely respond to this Order will be deemed
to constitute a consent to the granting of the Motion pursuant to Local Rule 7-12, and further,
could result in the dismissal of the action, pursuant to Fed. R. Civ. P. 41(b) and Local Rule 411, for failure to prosecute.
IT IS SO ORDERED.
:
Initials of
Preparer

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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