Ulivardo Avalos v. Andrew M. Saul

Filing 20

ORDER DISMISSING CASE WITHOUT PREJUDICE by Magistrate Judge Shashi H. Kewalramani. (see document for details) (et)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ULIVARDO AVALOS,

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v.

Case No. 2:20-cv-06602-SHK

Plaintiff,

ANDREW M. SAUL,
Comm’r of Soc. Sec. Admin.,

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ORDER DISMISSING CASE
WITHOUT PREJUDICE

Defendant.

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I.

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BACKGROUND

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A.

Current Case

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On July 24, 2020, Plaintiff Ulivardo Avalos (“Plaintiff”), represented by

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counsel—Suzanne C. Leidner (“Ms. Leidner”)—filed a Complaint (“Complaint”

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or “Compl.”) seeking judicial review of a decision of the Commissioner of Social

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Security (“Commissioner” or “Defendant”). Electronic Case Filing Number

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(“ECF No.”) 1, Compl. On the same day the Court issued its Case Management

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Order (“CMO”), wherein the parties were ordered to, in pertinent part, submit their

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joint submission (“Joint Submission” or “JS”) regarding the issues on appeal

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ninety-one days after Defendant filed its Answer (“Answer”) to Plaintiff’s

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Complaint. See ECF No. 9, CMO at 2 (requiring Plaintiff to provide Defendant

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with Plaintiff’s portion of the JS thirty-five days after Defendant filed its Answer,

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Defendant to provide its portion of the JS to Plaintiff within thirty-five days of

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receiving Plaintiff’s portion of the JS, Plaintiff to provide Defendant with any

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optional reply within fourteen days of receiving Defendant’s portion of the JS, and

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Defendant to file the JS with the Court within seven days of receiving Plaintiff’s

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optional reply, or the deadline to do so passing (35+35+14+7=91 days)).

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Defendant filed its Answer to Plaintiff’s Complaint on January 13, 2021.

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ECF No. 15, Answer. Consequently, Plaintiff’s portion of the Joint Submission

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was due to Defendant thirty-five days later, on February 17, 2021, and the Joint

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Submission would have been due to be filed with the Court on April 14, 2021.

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On March 31, 2021, Plaintiff filed a stipulated motion for an extension of

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time (“Motion”), until May 5, 2021, to forward Plaintiff’s portion of the Joint

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Submission to Defendant that was due on February 17, 2021, because of personal

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and family health matters. ECF No. 17, Motion. On April 6, 2021, the Court

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granted Plaintiff’s Motion in part. ECF No. 18, Order Granting Motion in Part

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(“Order”).

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Specifically, the Court noted that it was “sympathetic to Ms. Leidner’s

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personal and family health issues, but [noted that] Plaintiff’s Motion was due to

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Defendant nearly seven weeks [prior] and [that] neither party cared to notify the

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Court that Plaintiff had not met Plaintiff’s initial filing deadline, which the parties

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were both aware of pursuant to the CMO last July.” Id. at 2. The Court added that

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“Ms. Leidner has represented to the Court in another matter—where the Court

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granted Ms. Leidner multiple extensions of time to file that plaintiff’s portion of

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the Joint Submission—that she has ‘now acquired additional assistance to work on

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my files.’” Id. (quoting Isis Nix v. Andrew M. Saul, No. 2:20-cv-03860-SHK,

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ECF No. 19, Request to Extend Time at 2). The Court, therefore, found that

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“pursuant to Ms. Leidner’s representations she recently made to the Court in this

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other matter, Ms. Leidner has assistance with preparing her submissions to the

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Court.” Id.
Consequently, the Court granted Plaintiff’s Motion in part and imposed the

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following modified briefing schedule:
• “Plaintiff’s opening portion of the Joint Submission shall be provided to

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Defendant by April 20, 2021”;

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• “Defendant’s response shall be provided to Plaintiff by May 4, 2021”;

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• “Plaintiff’s optional reply shall be provided to Defendant by May 11,
2021”; and

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• “Defendant shall file the Joint Submission with the Court by May 14,

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2021.”

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Id.
The parties were warned that, “because the above stated deadlines will result

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in the Joint Submission being filed one month past the original filing deadline that

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the parties knew about last July, pursuant to the CMO, no further extensions of

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time will be granted in this matter.” Id. (emphasis in original) The parties were

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further warned that:

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because the parties failed to notify the Court until now that Plaintiff had

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not submitted Plaintiff’s opening portion of the Joint Submission that

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was due to Defendant nearly seven weeks ago, . . . failure to timely

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submit the Joint Submission with the Court on or before May 14,

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2021, will result in dismissal of this action with or without prejudice

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under Rule 41(b) for failure to prosecute and obey Court orders and

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counsel for one or both parties being sanctioned.

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Id. (emphasis in original). Counsel for both parties were ordered to “notify the

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Court if either party fails to meet any of the above stated deadlines.” Id.

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On April 21, 2021, Defendant filed a Notice of Non-Receipt of Plaintiff’s
Initial Portion of Joint Submission and Declaration (“Notice”), in which Defendant
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chronicled multiple attempts to contact Ms. Leidner in order to gain information

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about when Ms. Leidner would provide Plaintiff’s opening portion of the Joint

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Submission to Defendant that Defendant had not timely received. ECF No. 19,

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Notice at 1-2. Defendant indicated that Plaintiff has not provided Plaintiff’s

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portion of the Joint Submission to Defendant that was due on April 20, 2021,

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pursuant to the Court’s Order Granting Plaintiff’s Motion. Id. at 2. Consequently,

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Defendant informed the Court that “[b]ecause [Defendant] did not receive

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Plaintiff’s portion of the [J]oint [S]ubmission, [Defendant] [is] unable to comply

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with the requirements of the Court’s April 6, 2021 order to file the [J]oint

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[S]ubmission.” Id.

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To date, Plaintiff has not provided Defendant with Plaintiff’s portion of the

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Joint Submission that was due to Defendant over nine weeks ago on February 17,

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2021.

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B.

Previous Cases

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The Court also observes that Ms. Leidner has a history of seeking extensions

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of time to file documents with this Court due to her ongoing health issues, and,

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despite receiving multiple extensions of time—sometimes as many as seven in a

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single case—Ms. Leidner has had multiple cases she has handled in the United

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States District Court for the Central District of California dismissed for failure to

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prosecute and follow Court orders. See, e.g.:

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• Lizeth M. Vazquez v. Andrew M. Saul, No. 5:19-cv-01923-ADS (C.D.

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Cal. Oct. 8, 2019) (case dismissed with prejudice for Ms. Leidner’s

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failure to prosecute and obey Court orders);

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• Isis Nix v. Andrew M. Saul, No. 2:20-cv-03860-SHK (C.D. Cal. April

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28, 2020) (case dismissed without prejudice and Ms. Leidner sanctioned

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for Ms. Leidner’s failure to prosecute and obey Court orders);

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• T.L. v. Nancy A Berryhill, No. 2:18-cv-01395-SHK (C.D. Cal. Feb. 20,
2018), ECF No. 33, Stip. to Extend Time to Forward Pl.’s JS (Seventh) at
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1-2 (parties stipulating on March 25, 2019 to a seventh extension of time

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for Plaintiff to file Plaintiff’s portion of the JS because of “Plaintiff’s

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counsel [Ms. Leidner] who needs the additional time because of fatigue

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and stress due to ongoing medical problems and procedures.”) (emphasis

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added);

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• H.L.N. v. Andrew Saul, No. 2-18-cv-07992-CJC-SHK (C.D. Cal. Sept.

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14, 2018), ECF No. 24, Def.’s Notice of Non-Receipt of Pl.’s Initial

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Portions of JS and Decl. at 2 (Defendant asserting, on September 24,

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2019, that Defendant had stipulated to a second extension of time for Ms.

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Leidner to forward Plaintiff’s portion of the JS to Defendant on July 23,

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2019, with a new JS due date of July 24, 2019, and that after emailing

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Ms. Leidner three times over the course of two months, by September 23,

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2019, Defendant still could not elicit even a response from Ms. Leidner

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regarding when she would provide Defendant Plaintiff’s initial portion of

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the JS and that the parties had now missed the JS filing deadline of

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September 18, 2019, because Ms. Leidner had not even filed Plaintiff’s

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portion of the JS with Defendant that was due over two months prior.);

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• K.M v. Andrew Saul, No. 2:19-cv-06636-SHK (C.D. Cal. July 31, 2019),

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ECF No. 28, Reply to OSC at 1-2 (Ms. Leidner responding on May 11,

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2020, to an OSC why the case should not be dismissed for Plaintiff’s

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failure to provide Defendant with Plaintiff’s portion of the JS despite

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three extensions of time having already been granted in the case, and Ms.

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Leidner explaining that she “has been under a heavy work backlog

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because of personal and family illness” and because she “has been only

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able to work intermittently for short periods of time due to medical

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problems.”).

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While the Court does not intend to downplay the health issues Ms. Leidner
is experiencing, it is aware that despite Ms. Leidner’s longstanding health issues
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that have caused repeated inabilities to meet filing deadlines with the Court in the

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above-mentioned cases throughout 2019 and 2020, Ms. Leidner began representing

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new clients and has filed complaints for at least seven other cases in this Court in

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2020. See, e.g.:

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• Jose Rodriguez-Ceja v. Andrew M. Saul, No. 5:20-cv-00045-SP (C.D.
Cal. Jan. 8, 2020);
• Jesus Rodriguez Hernandez v. Andrew M. Saul, No. 5:20-cv-01155-E
(C.D. Cal. June 5, 2020);
• Edward Earl Townsend v. Andrew M. Saul, No. 8:20-cv-07077-AGR
(C.D. Cal. June 16, 2020);
• Dewon Dion Todd v. Andrew M. Saul, No. 5:20-cv-01424-RAO
(C.D. Cal. July 20, 2020);
• Sabrina Marlene Kateley v. Andrew M. Saul, No. 5:20-cv-01706-KK
(C.D. Cal. Aug. 24, 2020);
• Diana Rose Rivera, No. 5:20-cv-01846-MAA, No. 5:20-cv-01846MAA (C.D. Cal. Sept. 9, 2020); and
• Florencio Verdugo Renteria v. Andrew M. Saul, No. 5:20-cv-02322-

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DMG-ADS (C.D. Cal. Nov. 6, 2020).

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II.

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DISCUSSION

District courts have sua sponte authority to dismiss actions for failure to

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prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v.

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Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v.

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U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an

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action under Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s

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failure to prosecute or comply with the Federal Rules of Civil Procedure or the

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court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering

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dismissal for failure to comply with court orders).

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In deciding whether to dismiss for failure to prosecute or comply with court

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orders, a district court must consider five factors: “(1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic

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sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (setting out similar five

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factors as in Henderson). “Dismissal is appropriate ‘where at least four factors

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support dismissal, or where at least three factors ‘strongly’ support dismissal.’”

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Neal v. Reslan, No. CV 19-09291 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal.

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Jan. 16, 2020) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir.

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1998) (internal citations omitted) (citing Ferdik, 963 F.2d at 1263)). In a case

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involving sua sponte dismissal, however, the fifth Henderson factor regarding the

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availability of less drastic sanctions warrants special focus. Hernandez, 138 F.3d

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at 399.

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Here, the first two factors—public interest in expeditious resolution of

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litigation and the Court’s need to manage its docket—weigh in favor of dismissal.

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Despite repeated warnings that this case will be dismissed for failure to prosecute

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and follow Court orders, and that no further extensions of time would be granted in

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this case, Ms. Leidner has repeatedly failed to file the Joint Submission as ordered.

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This failure to prosecute and follow Court orders hinders the Court’s ability to

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move this case toward disposition and suggests that Plaintiff does not intend to

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litigate this action diligently. See id.

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The third factor—prejudice to Defendant—also weighs in favor of dismissal.

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A rebuttable presumption of prejudice to a defendant arises when a plaintiff

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unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447, 1452-53

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(9th Cir. 1994) (citations omitted). Here, Ms. Leidner is clearly capable of

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responding to Court orders, as evidenced by her Motion for an extension of time to
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file Plaintiff’s portion of the Joint Submission with Defendant. However, Ms.

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Leidner has failed to comply with the Court’s most recent order, despite

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representing to the Court in another matter that she has obtained help that would

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allow her to meet Court deadlines. Moreover, Defendant has chronicled repeated

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attempts to contact Ms. Leidner to gain information about when Plaintiff’s portion

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of the Joint Submission will be provided to Defendant, which places an additional

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burden on Defendant to prosecute this case. Thus, this “prejudice” element thus

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favors dismissal.

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The fourth factor—public policy in favor of deciding cases on the merits—

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ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to

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move litigation towards disposition at a reasonable pace and to avoid dilatory and

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evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991).

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Ms. Leidner has not met this responsibility despite having been: (1) instructed on

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Plaintiff’s responsibilities; (2) granted sufficient time in which to discharge them;

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and (3) warned of the consequences of failure to do so. Under these

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circumstances, though this policy favors Plaintiff, it does not outweigh Plaintiff’s

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and Ms. Leidner’s repeated failure to obey Court orders or to file responsive

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documents within the time granted.

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The fifth factor—availability of less drastic sanctions—also weighs in favor

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of dismissal. The Court cannot move the case toward disposition without

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Plaintiff’s compliance with Court orders or participation in this litigation. Despite

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the Court’s attempt to obtain compliance with Court orders and Defendant’s

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repeated attempts to obtain Plaintiff’s portion of the Joint Submission from

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Plaintiff, Ms. Leidner has shown that she is either unwilling or unable to comply

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with Court orders by: (1) failing to file the Joint Submission with Defendant that

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was due over nine weeks ago on February 17, 2021; (2) failing to comply with

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Court orders when an extension of time was granted; and (3) failing to otherwise

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cooperate in prosecuting this action. The Court is not aware of any lesser sanction
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that is available in this case. See Henderson, 779 F.2d at 1424 (“The district court

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need not exhaust every sanction short of dismissal before finally dismissing a case

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but must explore possible and meaningful alternatives.”) (citation omitted); Roman

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v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 8013120, at *1 (C.D. Cal. Nov. 18,

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2019).

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Accordingly, the Court finds that dismissal of this action, without prejudice,
is appropriate here.
III.

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CONCLUSION

For the reasons set forth above, the Court DISMISSES this case, without
prejudice.

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IT IS SO ORDERED.

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DATED: 04/26/2021

________________________________
HON. SHASHI H. KEWALRAMANI
United States Magistrate Judge

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