Lynne A Rust v. Michael J Astrue
Filing
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MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on Plaintiff at her current address of record, as indicated in counsel's declaration, and on counsel for Defendant. (mr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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LYNNE A. RUST,
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Plaintiff,
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v.
CAROLYN W. COLVIN,
Commissioner of the Social
Security Administration,
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Defendant.
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NO. EDCV 12-01470 SS
MEMORANDUM DECISION AND ORDER
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I.
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INTRODUCTION
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On August 30, 2012, Lynne A. Rust (“Plaintiff”), then represented
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by counsel, filed this action seeking to overturn the decision of the
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Commissioner of the Social Security Administration (“Defendant”) denying
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her
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consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the
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undersigned United States Magistrate Judge.
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application
for
Supplemental
Security
Income.
The
parties
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On April 4, 2013, Plaintiff’s counsel filed a “Motion to Withdraw
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As Attorney of Record.”
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Plaintiff’s counsel stated that “[t]he attorney client relationship has
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deteriorated
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[Plaintiff].”
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education, experience, and training in handling Social Security matters,
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I cannot properly represent the interests of [Plaintiff].”
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Counsel also stated that he “wrote to [Plaintiff] informing her that
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after review of the administrative record [he] could not pursue this
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matter on her behalf” and requested Plaintiff’s permission to dismiss
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the action, which Plaintiff did not provide.
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Motion, counsel requested that Plaintiff be given an extension of time
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to
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complaint.
retain
and
(Dkt. No. 16).
counsel
cannot
(Id. at 2).
counsel
and
In the Motion to Withdraw,
proceed
[as]
the
attorney
for
Specifically, counsel stated, “given my
prepare
her
(Id.).
memorandum
in
(Id. at 5).
Further, in the
support
of
her
(Id. at 2).
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On May 16, 2013, the Court issued a briefing schedule stating that
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“[a]ny Opposition to the Motion to Withdraw is due no later than May 30,
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2013.”
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. . to promptly serve a copy of this [briefing] Order and the Motion to
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Withdraw on Plaintiff at Plaintiff’s last known address and file proof
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of service with this Court.”
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counsel filed proof of service stating that the Court’s May 16 Order and
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the Motion to Withdraw as Attorney of Record were mailed to Plaintiff’s
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address of record.
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Opposition to the Motion to Withdraw.
(Dkt. No. 17).
The Court also ordered “Counsel for Plaintiff .
(Id.).
On May 21, 2013, Plaintiff’s
(Dkt. No. 18 at 2).
Plaintiff did not file any
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On June 4, 2013, the Court issued an Order granting the Motion to
Withdraw.
(Dkt. No. 20).
The Court also ordered counsel to serve a
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copy of the Order on Plaintiff at her last known address to file a copy
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of the proof of service with the Court within seven days of the Order.
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(Id.).
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(Dkt. No. 20).
Counsel for Plaintiff filed a proof of service on June 6, 2013.
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In the Order granting the Motion to Withdraw, the Court provided
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fourteen days for Plaintiff to obtain counsel and file a Notice of
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Substitution.
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“failure to file a Notice of Substitution will be deemed a violation of
(Id.)
The Court also expressly warned Plaintiff that
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Court orders.
The Court will find that such a violation results in a
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failure to prosecute and will DISMISS this action with prejudice,
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pursuant to Federal Rule of Civil Procedure 41.”
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The Court also advised Plaintiff that such a dismissal would bar the
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action from proceeding.
(Dkt. No. 19 at 2).
(Id.).
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As of today, Plaintiff has failed to file a Notice of Substitution
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or any other response to the Court’s June 4, 2013 Order.
Further action
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cannot be taken in this matter without Plaintiff’s participation.
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Therefore, the Court finds that dismissal of this action with prejudice
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is appropriate for failure to prosecute and failure to comply with Court
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orders, pursuant to Federal Rule of Civil Procedure 41(b).
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II.
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DISCUSSION
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Federal Rule of Civil Procedure 41(b) grants district courts the
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authority to sua sponte dismiss actions for failure to prosecute or to
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comply with court orders.
See Link v. Wabash R.R., 370 U.S. 626,
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629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (“The power to invoke
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this sanction is necessary in order to prevent undue delays in the
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disposition of pending cases and to avoid congestion in the calendars of
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the District Courts.”).
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to be imposed only in extreme circumstances.
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779 F.2d 1421, 1423 (9th Cir. 1986).
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an action for failure to prosecute or to comply with a court order, the
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Court must weigh 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)
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the risk of prejudice to defendants/respondents; (4) the availability of
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less
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disposition of cases on their merits.”
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639, 642 (9th Cir. 2002); see also Oliva v. Sullivan, 958 F.2d 272, 274
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(9th Cir. 1992) (applying the factors in reviewing the dismissal of a
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social security case).
drastic
Dismissal, however, is a harsh penalty and is
alternatives;
and
See Henderson v. Duncan,
In considering whether to dismiss
(5)
the
public
policy
favoring
Pagtalunan v. Galaza, 291 F.3d
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A.
The Five Factors Supporting Dismissal
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1.
Expeditious Resolution And The Court’s Need To Manage Its
Docket
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In the instant action, the first two factors –- public interest in
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expeditious resolution of litigation and the need to manage the Court’s
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docket –- weigh in favor of dismissal.
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a Notice of Substitution by June 18, 2013.
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Court expressly advised Plaintiff that “failure to file a Notice of
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Substitution will be deemed a violation of Court orders. The Court will
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find that such a violation results in a failure to prosecute and will
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Plaintiff was required to file
(Dkt. No. 19 at 2).
The
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DISMISS this action with prejudice, pursuant to Federal Rule of Civil
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Procedure 41.”
(Id. at 2).
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As of today, however, Plaintiff has failed to file a Notice of
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Substitution
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Additionally, there is no evidence before the Court that Plaintiff did
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not receive the Court’s Order.
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ability
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Plaintiff does not intend to litigate this action diligently.
to
or
move
any
response
this
case
to
the
Court’s
June
4,
2013
Order.
Plaintiff’s conduct hinders the Court’s
toward
disposition
and
indicates
that
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2.
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The Risk Of Prejudice To Defendant
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The third factor –- prejudice to Defendant -– also counsels in
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favor of dismissal.
The prejudice to a defendant simply from the
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pendency of a lawsuit is insufficient, on its own, to warrant dismissal.
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See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984).
The risk of
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prejudice, however, is
reason
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defaulting.
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Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)).
related
to
the
plaintiff’s
for
Pagtalunan, 291 F.3d at 642 (citing Yourish v. California
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Here, Plaintiff has not offered any excuse for her failure to
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respond to the Court’s orders.
Where a party offers a poor excuse for
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failing to comply with a court’s order, the prejudice to the opposing
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party is sufficient to favor dismissal.
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991-92.
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respond to the Court’s orders, the “prejudice” element favors dismissal.
Because Plaintiff has not offered any excuse for failing to
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See Yourish, 191 F.3d at
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3.
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Less Drastic Alternatives
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The fourth factor –- the availability of less drastic sanctions –-
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ordinarily
counsels
against
dismissal.
The
Court
has,
however,
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attempted to avoid outright dismissal by explicitly warning Plaintiff of
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her obligation to file a Notice of Substitution.
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2).
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failure to file a Notice of Substitution would result in dismissal
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pursuant to Federal Rule of Civil
( See Dkt. No. 19 at
As discussed above, the Court expressly advised Plaintiff that
explored
meaningful
Procedure 41.
alternatives
to
The Court has,
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therefore,
dismissal.
See
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Henderson, 779 F.2d at 1424 (“The district court need not exhaust every
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sanction short of dismissal before finally dismissing a case, but must
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explore possible and meaningful alternatives.”).
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In addition, her own attorney’s declaration demonstrates that
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Plaintiff has lost interest in this litigation. In the declaration, her
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attorney states that Plaintiff told him in their last phone conversation
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that she would “get back to him,” but she failed to do so.
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messages for her on March 21 and March 28, but she did not return his
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calls.
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this
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appropriate.
(Dkt. 16 at 5, ¶ 4).
case,
sanctions
other
He left
Because Plaintiff has lost interest in
than
dismissal
do
not
appear
to
be
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4.
Public Policy Favoring Disposition On The Merits
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The fifth factor –- public policy favoring disposition of cases on
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their merits –- ordinarily weighs against dismissal. However, it is the
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responsibility of the moving party to move toward disposition at a
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reasonable pace and to refrain from dilatory and evasive tactics.
See
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Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991).
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Here, Plaintiff has not discharged this responsibility despite having
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ample time.
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resolution of disputes on the merits does not outweigh Plaintiff’s
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failure to respond to Court orders in the given time frame.
Under these circumstances, the public policy favoring
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B.
Dismissal Of This Action Is Warranted
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In view of the foregoing, the Court concludes that dismissal of
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this action is warranted under Rule 41(b), which states in pertinent
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part:
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[A] dismissal under this subdivision (b) and any dismissal not
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under this rule –- except one for lack of jurisdiction,
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improper venue, or failure to join a party under Rule 19 –-
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operates as an adjudication on the merits.
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Fed. R. Civ. P. 41(b).
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The Court dismisses this action on the basis of Plaintiff’s failure
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to prosecute and obey Court orders.
Because this case does not fall
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into one of the three exceptions noted above, the dismissal will operate
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as an adjudication on the merits.
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prejudice to Plaintiff’s refiling of a new action in federal court based
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on the same allegations.
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(9th Cir. 2002) (dismissal interpreted as an adjudication on the merits
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unless one of the Rule 41(b) exceptions applies); Owens v. Kaiser Found.
The dismissal will thus be with
See Stewart v. U.S. Bancorp, 297 F.3d 953, 956
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Health Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001) (dismissal for
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failure to prosecute is treated as an adjudication on the merits)
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(citing United States v. Schimmels (In re Schimmels), 127 F.3d 875, 884
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(9th Cir. 1997)).
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III.
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CONCLUSION
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Plaintiff was advised in the Court’s June 4, 2013 Order about the
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possibility of dismissal of this action in the event of a failure to
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file a Notice of Substitution.
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the Court’s orders and has failed to participate in her own litigation.
However, she has failed to comply with
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Consistent with the foregoing, IT IS ORDERED that Judgment be
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entered DISMISSING this action with prejudice.
IT IS FURTHER ORDERED
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that the Clerk of the Court serve copies of this Order and the Judgment
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herein on Plaintiff at her current address of record, as indicated in
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counsel’s declaration, and on counsel for Defendant.
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DATED: August 5, 2013
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/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE
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