Saechao v. Commissioner of Social Security

Filing 21

ORDER DISMISSING the Action for Plaintiff's Failure to Comply with the Court's Order and Failure to Prosecute signed by Magistrate Judge Jennifer L. Thurston on 11/03/2017. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SARN SING SAECHAO, 12 Plaintiff, 13 14 v. NANCY A. BERRYHILL1, Acting Commissioner of Social Security, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-01716 - JLT ORDER DISMISSING THE ACTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDER AND FAILURE TO PROSECUTE Sarn Sing Saechao initiated this action seeking judicial review of the administrative decision 17 18 denying an application for benefits under the Social Security Act. However, Plaintiff has failed to 19 prosecute the action and failed to comply with the Court’s orders to file an opening brief. Accordingly, 20 the action is DISMISSED without prejudice. 21 I. Relevant Background 22 On October 2, 2017, the Court granted the request of Plaintiff’s counsel to withdraw from her 23 representation, based upon the assertion that “[t]he attorney-client relationship has completely failed” 24 and Plaintiff was no longer communicating with his attorney. (Doc. 19) Plaintiff was ordered to 25 notify the Court “whether he intends to prosecute this action,” and “notify the Court whether he 26 intends to represent himself in this matter” no later than October 13, 2017. (Id. at 3) The Court 27 28 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes Nancy A. Berryhill for her predecessor, Carolyn W. Colvin, as the defendant 1 1 warned Plaintiff that failure to comply with its order “may result in dismissal of this action pursuant to 2 Local Rule 110.” (Id., emphasis omitted) However, Plaintiff failed to comply with the Court’s order. 3 On October 16, 2017, the Court issued an order to Plaintiff to show cause why the action 4 should not be dismissed for his failure to prosecute and failure to comply with the Court’s order. 5 (Doc. 20) In the alternative, Plaintiff was directed “to file written notification of his intent to 6 prosecute this action” within two weeks of the date of service. (Id. at 2) To date, Plaintiff has failed 7 to comply with or otherwise respond to the Court’s order. 8 II. Failure to Prosecute and Obey the Court’s Orders The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 9 10 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 11 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 12 power to control their dockets,” and in exercising that power, a court may impose sanctions including 13 dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 14 1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute an action 15 or failure to obey a court order, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 16 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order); Malone v. U.S. 17 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); 18 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to 19 comply with local rules). 20 III. 21 Discussion and Analysis To determine whether to dismiss an action for failure to prosecute and failure to obey a Court 22 order, the Court must consider several factors, including: “(1) the public’s interest in expeditious 23 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 24 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 25 of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; 26 Thomspon, 782 F.2d at 831. Public interest and the Court’s docket 27 A. 28 In the case at hand, the public’s interest in expeditiously resolving this litigation and the 2 1 Court’s interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 2 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always 3 favors dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 4 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 5 not hold, this case in abeyance based upon Plaintiff’s failure to comply with the Court’s orders and 6 failure to take action to prosecute in a timely manner. See Morris v. Morgan Stanley & Co., 942 F.2d 7 648, 652 (9th Cir. 1991) (explaining a plaintiff has the burden “to move toward… disposition at a 8 reasonable pace, and to refrain from dilatory and evasive tactics”). Accordingly, these factors weigh 9 in favor of dismissal of the action. 10 B. Prejudice to Defendants 11 To determine whether Defendant has been prejudiced, the Court must “examine whether the 12 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 13 the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th 14 Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the 15 prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Here, Plaintiff 16 has not taken any action to prosecute the action, despite being ordered by the Court to indicate his 17 intent to prosecute. Accordingly, this factor weighs in favor of dismissal. 18 C. 19 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 20 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 21 Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, the Ninth Circuit has determined that a 22 court’s warning to a party that his failure to obey could result in dismissal satisfies the “consideration 23 of alternatives” requirement. See Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth 24 Circuit explained, “a plaintiff can hardly be surprised” by a sanction of dismissal “in response to 25 willful violation of a pretrial order.” Malone, 833 F.2d at 133. 26 Consideration of less drastic sanctions Here, the Court warned Plaintiff that the failure to comply with its order could “result in 27 dismissal of this action.” (Doc. 19 at 3, emphasis in original) Again, in the Order to Show Cause, 28 the Court informed Plaintiff that “sanctions including dismissal of an action” could be imposed for “a 3 1 party’s failure to prosecute an action or failure to obey a court order, or failure to comply with local 2 rules.” (Doc. 20 at 2) Significantly, the Court need only warn a party once that the matter could be 3 dismissed for failure to comply to satisfy the requirements of Rule 41. Ferdik, 963 F.2d at 1262; see 4 also Titus v. Mercedes Benz of North America, 695 F.2d 746, 749 n.6 (3d Cir. 1982) (identifying a 5 “warning” as an alternative sanction). Accordingly, the warnings to Plaintiff satisfied the requirement 6 that the Court consider lesser sanctions, and this factor weighs in favor of dismissal of the action. See 7 Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424; Titus, 695 F.2d at 749 n.6. 8 D. Public policy 9 Given Plaintiff’s failure to prosecute the action and failure to comply with the Court’s orders, 10 the policy favoring disposition of cases on their merits is outweighed by the factors in favor of 11 dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy favoring 12 disposition of cases on their merits . . . weighs against dismissal, it is not sufficient to outweigh the 13 other four factors”). 14 IV. Order 15 Plaintiff failed to comply with the Court’s orders dated October 2, 2017 (Doc. 19) and October 16 16, 2017 (Doc. 20), despite warnings that the action may be dismissed for failure to respond. In 17 addition, Plaintiff has failed to take any action to prosecute this action. 18 Based upon the foregoing, the Court ORDERS: 19 1. This action is DISMISSED without prejudice; and 20 2. The Clerk of Court is DIRECTED to close the action. 21 22 23 24 IT IS SO ORDERED. Dated: November 3, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4

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