Timothy Andrews v. Andrew M. Saul

Filing 9

MINUTES (In Chambers) Order to Show Cause Why Action Should Not Be Dismissed for Failure to Prosecute and Comply with Court Orders by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 2/24/2021. (dts)

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

CV 21-297-CAS (KK)

Date: February 17, 2021

Title: Timothy A. 1 v. Andrew M. Saul

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Why Action Should Not Be Dismissed
for Failure to Prosecute and Comply with Court Orders
I.
BACKGROUND

On January 13, 2021, Plaintiff Timothy A. (“Plaintiff”) filed a Complaint challenging the
denial of Plaintiff’s application for Title II Disability Insurance Benefits and/or Title XVI
Supplemental Security Income by the Commissioner of the Social Security Administration
(“Defendant”). ECF Docket No. (“Dkt.”) 1.
On January 14, 2021, the Court issued a Case Management Order (“CMO”) instructing
Plaintiff to “promptly serve the summons and complaint on the Commissioner,” and to
“electronically file a proof of service” within thirty (30) days after the filing of the Complaint, i.e. no
later than February 16, 2021. Dkt. 7 at 1–2. The CMO warned Plaintiff that failure to follow those
instructions “may result in dismissal of this case.” Id. at 2.
CMO.

As of the date of this Order, Plaintiff still has not filed a proof of service, per the Court’s

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Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial
Conference of the United States.

1

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II.
DISCUSSION
Under Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”), the Court may dismiss an action
with prejudice for failure to prosecute or failure to comply with any court order. See FED. R. CIV. P.
41(b).
Here, Plaintiff has failed to file a proof of service of the Complaint, and thus failed to
comply with the Court’s CMO. Consequently, under Rule 41(b), the Court may properly dismiss the
instant action without prejudice for failure to prosecute and comply with a court order. Bennett v.
Colvin, No. CV 12-10317-PA (PJW), 2013 WL 3233420, at *1 (C.D. Cal. June 26, 2013) (dismissing
pro se social security action under Rule 41(b) where plaintiff failed to file proof of service on
defendant despite court order). However, before dismissing this action, the Court will afford
Plaintiff an opportunity to explain Plaintiff’s failure to file a proof of service as directed by the
CMO.
III.
ORDER
Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, in writing, why this action
should not be dismissed for failure to prosecute and/or comply with court orders. Plaintiff shall
have up to and including February 24, 2021, to respond to this Order. Plaintiff is cautioned that
failure to timely file a response to this Order will be deemed by the Court as consent to the
dismissal of this action without prejudice.
IT IS SO ORDERED.

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