Calixtro v. Commissioner of Social Security

Filing 29

ORDER DISMISSING CASE for Failure to Comply with a Court Order, signed by Magistrate Judge Gary S. Austin on 03/30/2015. CASE CLOSED(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARGARITA CALIXTRO,

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Case No.: 1:13-cv-01880-GSA

Plaintiff,
ORDER DISMISSING CASE FOR
FAILURE TO COMPLY WITH A COURT
ORDER

v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

(ECF No. 28)

Pro se plaintiff Margarita Calixtro (“Plaintiff”) was previously directed to submit an

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Opening Brief in this case no later than December 19, 2014. ECF No. 24. On December 19, 2014,
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Plaintiff, through her husband, Alejo Calixtro, filed a short letter with the Court in which Mr.
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Calixtro provided a summary of Plaintiff’s medical condition. ECF No. 26. On January 9, 2015,
the Court notified Plaintiff that Mr. Calixtro’s letter did not constitute an appropriate opening

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brief and provided instructions on how to submit an opening brief. Plaintiff was directed to file an
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appropriate opening brief by February 9, 2015 and was warned that a failure to do so could result
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in the dismissal of her action. ECF No. 27. By February 24, 2015, no opening brief had been filed
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and the Court issued an Order to Show Cause directing Plaintiff to submit an opening brief or file
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a notice of voluntary dismissal if she was no longer interested in pursuing the case. ECF No. 28.
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The Order to Show Cause warned that unless an appropriate response was filed by March 25,

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2015, the action would be dismissed. Id. To date, no response has been filed.

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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules

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or with any order of the Court may be grounds for the imposition by the Court of any and all

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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to

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control their dockets and “in the exercise of that power, they may impose sanctions including,

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where appropriate . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).

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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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

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amendment of complaint); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal

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for lack of prosecution and failure to comply with local rules).

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To determine whether to dismiss an action for lack of prosecution, failure to obey a court

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order, or failure to comply with local rules, the court must consider several factors: (1) the

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public’s interest in 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 disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik,

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963 F.2d at 1260-61; Henderson, 779 F.2d at 1423-24.

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In the instant case, the Court finds that the public’s interest in expeditiously resolving this

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litigation and the Court’s interest in managing the docket weigh in favor of dismissal because this

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case has been pending in this Court since November 20, 2013, and it does not appear that Plaintiff

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is going to file an opening brief. The third factor, risk of prejudice to defendants, also weighs in

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favor of dismissal because a presumption of injury arises from any unreasonable delay in

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prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor,

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public policy favoring disposition of cases on their merits, is outweighed by the factors in favor of

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dismissal. Finally, a court’s warning to a party that his failure to obey the court’s order will result

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in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262;
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Henderson, 779 F.2d at 1424. The Court’s order to Show Cause clearly stated that the case would

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be dismissed if Plaintiff failed to respond to the Order to Show Cause. ECF No. 28 (“If Plaintiff

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fails to timely respond to this Order to Show Cause, the action will be dismissed in its entirety”).

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ORDER
Accordingly, this Court orders that this action be DISMISSED for Plaintiff's failure to

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comply with a court order. The Clerk of the Court is directed to close this action. This order

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terminates this case in its entirety.

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IT IS SO ORDERED.
Dated:

March 30, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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