Mitchell v. Astrue

Filing 6

ORDER to SHOW CAUSE for Failure to Prosecute and Failure to Obey Order, and ORDER to Demonstrate Proper Venue signed by Magistrate Judge Jennifer L. Thurston on 11/7/2011. Show Cause Response due by 11/22/2011. (Leon-Guerrero, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA MARIE MITCHELL,

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Plaintiff,
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v.
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MICHAEL J. ASTRUE,
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Commissioner of Social Security,
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Defendant.
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_______________________________________ )

Case No.: 1:11-cv-01275 JLT
ORDER TO SHOW CAUSE WHY THE
ACTION SHOULD NOT BE DISMISSED
FAILURE TO PROSECUTE, FAILURE TO
AND OBEY THE COURT’S ORDER, AND TO
DEMONSTRATE PROPER VENUE

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Plaintiff Lisa Marie Mitchell (“Plaintiff”) initiated this action on August 1, 2011 by filing a

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complaint seeking review of decision denying Social Security benefits. (Doc. 2). The Court issued

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its Scheduling Order on August 2, 2011, setting forth the applicable deadlines for the Social Security

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action. (Doc. 5). In addition, the Court issued an Order re Consent or Request for Reassignment on

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August 2, 2011. (Doc. 7).

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For the following reasons, Plaintiff is ORDERED to show cause as to why the action should

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not be dismissed for her failure to prosecute, failure to obey the Court’s orders, and improper venue.

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I. Failure to prosecute and obey the Court’s Orders

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The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a

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party to comply with . . . any order of the Court may be grounds for the imposition by the Court of

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any and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have

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inherent power to control their dockets,” and in exercising that power, a court may impose sanctions
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including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831

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(9th Cir. 1986). A court may dismiss an action based upon a party’s failure to obey a court order,

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failure to prosecute an action, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)

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(dismissal for failure to comply with a court order).

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In the Court’s Scheduling Order, Plaintiff was ordered to “serve the summons, complaint, the

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notice and form of consent to proceed before a magistrate judge provided by Local Rule 305 (a), and

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a copy of [the] order and file return of service with this court” within twenty days of filing the

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complaint.” (Doc. 5 at 1). Therefore, Plaintiff was to serve and file a proof of service within twenty

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days, or by August 22, 2011. Plaintiff was informed that “[v]iolations of [the] order . . . may result

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in sanctions pursuant to Local Rule 110.” Id. at 4. However, Plaintiff failed to file a proof of

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service, or seek leave to amend the Scheduling Order. In addition, the Court ordered Plaintiff to

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“complete and return the enclosed Consent to Assignment or Request for Reassignment” no later

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than 90 days from August 2, 2011, or by October 31, 2011. (Doc. 5-1). Plaintiff failed to complete

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the form indicating consent to the jurisdiction of the Magistrate Judge, or requesting assignment to a

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United States District Judge. Consequently, to date, Plaintiff has failed to comply with two orders of

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the Court.

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II. Improper Venue

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When a plaintiff seeks review of a final decision of the Commissioner of Social Security,

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“[s]uch action shall be brought in the district court of the United States for the judicial district in

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which the plaintiff resides.” 42 U.S.C. § 405(g). On the Civil Cover Sheet, Plaintiff indicates she

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resides in Kern County, which is within the Eastern District of California. (Doc. 1 at 1). However,

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in the Complaint, Plaintiff asserts venue is proper because she “is a resident of Paso Robles,

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California.” (Doc. 2 at 1). The city of Paso Robles is within San Louis Obispo County, which lies in

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within the Central District of California. Therefore, it appears the action may not have been filed in

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the proper venue.

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III. Conclusion and Order
Since filing her Complaint, Plaintiff has failed to comply with the Court’s orders regarding

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service of documents on Defendant and filing the consent form. In addition, it appears the venue for

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this action is improper.

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Accordingly, Plaintiff is ORDERED to show cause within 14 days of the date of service of

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this Order why the action should not be dismissed for her failure to prosecute and to follow the

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Court’s Order. Moreover, in her response to this order to show cause, Plaintiff SHALL demonstrate

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why the Eastern District of California is the proper venue.

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IT IS SO ORDERED.

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Dated: November 7, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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