Darlette Yvonne Henderson v. Carolyn W. Colvin

Filing 25

MEMORANDUM OF DECISION AND ORDER by Magistrate Judge Andrew J. Wistrich. A court has discretion to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. P. 41(b); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Considering all of the circumstances, this action is dismissed with prejudice. (See attached order for for further details.) (jsan)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DARLETTE YVONNE HENDERSON,

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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security, )
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Defendant.
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____________________________________)

Case No. CV 15-6333 AJW
MEMORANDUM OF DECISION
AND ORDER

Proceedings
On August 19, 2015, plaintiff, through her counsel of record, filed this action for judicial review.
A Case Management Order (“CMO”) was filed on August 26, 2015. [Docket Nos. 1, 9].

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Plaintiff received extensions of time, to and including July 31, 2016, in which to provide her portion

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of the joint stipulation to defendant, and all other deadlines in the CMO were extended accordingly. [Docket

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Nos. 17, 18, 20]. Plaintiff’s counsel filed a motion to withdraw as attorney of record, which was granted.

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A notice of appearance was filed by new counsel at the same law firm. [Docket Nos. 19-23].

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On February 27, 2017, an order to show cause (“OSC”) was filed giving plaintiff until March 13,

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2017 in which to show cause for failing to comply with the case management deadlines and failure to

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prosecute this action. The OSC cautioned plaintiff that “failure to respond to this order within the time

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allowed, or to show good cause as described in this order, may lead to the dismissal of this action with

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prejudice. See Fed. R. Civ. P. 41(b).” [Docket No. 24 (emphasis in original)]. Plaintiff did not respond

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to the OSC within the time allowed, nor has she taken any other steps to prosecute this action.
Discussion

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A district court's authority to dismiss a litigant’s action for failure to prosecute or to comply with

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court orders is well-established. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-630

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(1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). “The power to invoke this sanction is

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necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in

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the calendar of the District Courts.” Link, 370 U.S. at 629-630.

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In determining whether to dismiss a case for failure to prosecute or failure to comply with court

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orders, a district court should consider the following five factors: “(1) the public's interest in expeditious

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resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants;

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(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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sanctions.” In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1226-1228, 1234-1252 (9th

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Cir. 2006) (discussing and applying those factors). Regardless of whether a litigant's conduct is most

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properly characterized as a failure to prosecute or as a failure to comply with orders, the applicable standard

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is the same. See, e.g., Southwest Marine Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000) (failure to

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prosecute); Ferdik, 963 F.2d at 1260-1261 (failure to comply with orders).

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The first factor—the public's interest in the expeditious resolution of litigation—“always favors

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dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California

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Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)); see In re PPA Prod. Liab. Litig., 460 F.3d at 1234

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(“[D]ismissal serves the public interest in expeditious resolution of litigation as well as the court's need to

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manage the docket when a plaintiff's noncompliance has caused the action to come to a halt, thereby

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allowing the plaintiff, rather than the court, to control the pace of the docket.”).

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The second factor—the court’s need to manage its docket—also favors dismissal. Computer Task

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Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (“Where a court order is violated, the first and

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second factors will favor sanctions . . . .”); see Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th

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Cir. 2004) (noting that “resources continue to be consumed by a case sitting idly on the court’s docket”).

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The third factor—prejudice to defendants or respondents—also weighs in favor of dismissal. In the

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absence of a showing to the contrary, prejudice to the defendants or respondents is presumed from

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unreasonable delay. In re Eisen, 31 F.3d 1447, 1452-1453 (9th Cir. 1994) (citing Anderson v. Air West,

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Inc., 542 F.2d 522, 524 (9th Cir. 1976)).

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The fourth factor—the availability of less drastic sanctions—also supports dismissal. Plaintiff was

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warned that failure to show good cause or respond to the OSC within the time allowed could result in the

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dismissal of this action with prejudice. See In re PPA Prod. Liab. Litig., 460 F.3d at 1229 (explaining that

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“[w]arning [the plaintiff] that failure to obey a court order will result in dismissal can itself meet the

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‘consideration of alternatives’ requirement.”); Anderson, 542 F.2d at 525 (“There is no requirement that

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every single alternative remedy be examined by the court before the sanction of dismissal is appropriate.

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The reasonable exploration of possible and meaningful alternatives is all that is required.”).

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The fifth factor—the public policy favoring disposition of cases on their merits—weighs against

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dismissal, as it always does. Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El Monte, 138 F.3d

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393, 399 (9th Cir. 1998)). Despite the policy favoring disposition on the merits, however, it remains a

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litigant's responsibility to comply with orders issued by the court, “to move towards that disposition at a

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reasonable pace, and to refrain from dilatory and evasive tactics.” In re Eisen, 31 F.3d at 1454 (quoting

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Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991)). Plaintiff has not fulfilled that

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obligation.

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The five-factor test is a disjunctive balancing test, so not all five factors must support dismissal. See

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Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998) (noting that the five-factor test

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“amounts to a way for a district judge to think about what to do, not a series of conditions precedent” to

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dismissal); Hernandez, 138 F.3d at 399 (explaining that dismissal is appropriate when four factors support

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dismissal or where three factors “strongly” support dismissal).

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Conclusion

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A court has discretion to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R.

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Civ. P. 41(b); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Considering all of the

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circumstances, this action is dismissed with prejudice.

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IT IS SO ORDERED.

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April 27, 2017

____________________________
ANDREW J. WISTRICH
United States Magistrate Judge

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