Turk v. Commissioner of Social Security

Filing 16

ORDER signed by Magistrate Judge Kendall J. Newman on 2/18/2014 ORDERING the plaintiff's counsel to personally pay to the Clerk of Court $250.00 in monetary sanctions based on his failure to comply with the court's scheduling deadlines and orders; ORDERING the parties to file a Stipulation of Dismissal of action pursuant to F.R.Cv.P. Rule 41(a)(1)(A)(ii) within fourteen (14) days; ALTERNATIVELY ORDERING the Commissioner of Social Security to file an opposition to the 15 Request for Dismissal within fourteen (14) days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODERICK TURK,

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No. 2:13-cv-1248-KJN

Plaintiff,
v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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For the reasons discussed in its February 14, 2014 order, the court directed plaintiff’s

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counsel to show cause why he should not be personally sanctioned in the amount of $500 based

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on his failure to comply with the court’s scheduling deadlines and orders. (ECF No. 12.) That

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same day, plaintiff filed a response to the order to show cause, a consent to the jurisdiction of a

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magistrate judge, and a request for dismissal of the action with prejudice. (ECF Nos. 13-15.) In

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the response to the order to show cause, plaintiff’s counsel indicated that he “makes no excuses

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for any of his actions and will pay the court’s sanction.” (ECF No. 14.)

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In light of plaintiff’s counsel’s candor and willingness to accept responsibility for his

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failures, the court will reduce the amount of monetary sanctions assessed to $250.00. Plaintiff’s

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counsel is reminded that he can avoid such sanctions in the future by filing timely requests for

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extension of time. The court is cognizant of the occasional need for extensions of time,
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particularly in high-volume practice areas where multiple briefs may be due at the same time, and

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more time may be needed to properly evaluate a case and brief the issues. However, the proper

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way to address such scheduling difficulties is to file a timely request for extension of time before

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expiration of the applicable deadline.

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With respect to plaintiff’s request for dismissal of the action with prejudice, because the

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Commissioner has already filed an answer, the action can only be dismissed pursuant to a

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stipulation of all parties or by court order. See Fed. R. Civ. P. 41(a). It seems unlikely that the

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Commissioner would oppose dismissal of the action with prejudice. Nevertheless, out of an

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abundance of caution, the court requires the parties to file a stipulation of dismissal of the action

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pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) within fourteen (14) days of this

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order. Alternatively, the Commissioner may file an opposition to the request for dismissal within

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fourteen (14) days of this order, specifying the grounds for such opposition.

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In light of the above, IT IS HEREBY ORDERED that:

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1. Within fourteen (14) days of this order, plaintiff’s counsel shall personally pay the

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Clerk of Court $250.00 in monetary sanctions based on his failure to comply with the

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court’s scheduling deadlines and orders. Plaintiff’s counsel shall not attempt to

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recover such sanctions from plaintiff, directly or indirectly.

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2. Within fourteen (14) days of this order, the parties shall file a stipulation of dismissal

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of the action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).

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Alternatively, the Commissioner may file an opposition to the request for dismissal

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within fourteen (14) days of this order, specifying the grounds for such opposition.

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IT IS SO ORDERED.
Dated: February 18, 2014

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