Weathers v. Commissioner of Social Security

Filing 13

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/27/2015 ORDERING that the Clerk of Court shall randomly assigned a US District Judge to this matter; Judge Troy L. Nunley ASSIGNED to this matter; New Case Numbe r: 2:14-CV-1610 TLN KJN PS; RECOMMENDING that this action be dismissed pursuant to FRCP 41(b); the Clerk of Court be directed to vacate all dates and close this case; Referred to Judge Troy L. Nunley; Objections due within 14 days after being served with these F & R's. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MONTE D. WEATHERS,

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Plaintiff,

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v.

No. 2:14-cv-1610-KJN PS

ORDER AND

COMMISSIONER OF SOCIAL
SECURITY,

FINDINGS AND RECOMMENDATIONS

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Defendant.

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Plaintiff, proceeding without counsel, initially commenced this social security action on

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July 8, 2014. (ECF No. 1.) Pursuant to the court’s August 4, 2014 scheduling order, plaintiff was

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required to file a motion for summary judgment and/or remand within 45 days from being served

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with a copy of the administrative record. (ECF No. 4.) On November 17, 2014, the

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Commissioner lodged the administrative record and served it on plaintiff by U.S. mail. (ECF

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Nos. 10, 11.) However, plaintiff subsequently failed to file a motion for summary judgment

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and/or remand by the required deadline.

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Consequently, on March 26, 2015, the court issued an order to show cause requiring

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plaintiff, no later than April 23, 2015, to show cause in writing why this action should not be

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dismissed based on plaintiff’s failure to file a motion for summary judgment and prosecute the
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case. (ECF No. 12.) The court also provided plaintiff with an additional opportunity to file a

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motion for summary judgment and/or remand no later than April 23, 2015. (Id.) Plaintiff was

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specifically cautioned that failure to timely respond to the order to show cause and to timely file a

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motion for summary judgment may result in dismissal of the action pursuant to Federal Rule of

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Civil Procedure 41(b). (Id.)

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Although the new deadlines have now passed, plaintiff again failed to file a motion for

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summary judgment and/or remand, and also failed to respond to the court’s order to show cause.

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At this juncture, the court concludes that dismissal is appropriate.

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Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply

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with these Rules or with any order of the Court may be grounds for imposition by the Court of

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any and all sanctions authorized by statute or Rule or within the inherent power of the Court.”

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Case law is in accord that a district court may impose sanctions, including involuntary

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dismissal of a plaintiff’s case pursuant to Federal Rule of Civil Procedure 41(b), where that

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plaintiff fails to prosecute his or her case or fails to comply with the court’s orders, the Federal

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Rules of Civil Procedure, or the court’s local rules. See Chambers v. NASCO, Inc., 501 U.S. 32,

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44 (1991) (recognizing that a court “may act sua sponte to dismiss a suit for failure to

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prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir.

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2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b)

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sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure or the

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court’s orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow

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a district court’s local rules is a proper ground for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258,

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1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may

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dismiss an action for failure to comply with any order of the court”); Thompson v. Housing Auth.

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of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have

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inherent power to control their dockets and may impose sanctions including dismissal or default).

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A court must weigh five factors in determining whether to dismiss a case for failure to

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prosecute, failure to comply with a court order, or failure to comply with a district court’s local

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rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider:
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(1) the public’s interest in expeditious resolution of litigation; (2)
the court’s need to manage its docket; (3) the risk of prejudice to
the defendants; (4) the public policy favoring disposition of cases
on their merits; and (5) the availability of less drastic alternatives.

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Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46

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F.3d at 53. The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of

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conditions precedent before the judge can do anything, but a way for a district judge to think

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about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226

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(9th Cir. 2006).

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Here, the first two Ferdik factors support dismissal. Plaintiff failed to comply with several

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court orders, and failed to take the steps necessary to prosecute and move his case forward. The

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third Ferdik factor, prejudice to the defendant, also favors dismissal. At the very least, the

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Commissioner has been named in a civil action and has had progress towards resolution of the

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matter delayed by plaintiff’s actions.

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The fifth Ferdik factor, availability of less drastic alternatives, also favors dismissal.

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Before recommending the harsh sanction of dismissal, the court, especially in light of plaintiff’s

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pro se status, first issued an order to show cause, providing plaintiff with an opportunity to be

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heard, and also granted plaintiff an extension to file a motion for summary judgment and/or

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remand. However, plaintiff entirely failed to respond to the court’s order, and did not even

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request a further extension of time to comply. As such, the court has little confidence that

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plaintiff would comply with an order to pay monetary sanctions. Furthermore, based on the

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nature of this action and the limited record, the court is unable to frame any other meaningful, less

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drastic sanctions, such as issue or evidentiary sanctions.

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Finally, although the court recognizes the importance of the fourth Ferdik factor, which

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addresses the public policy favoring disposition of cases on the merits, that public policy is

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outweighed by the other Ferdik factors. If anything, a disposition on the merits has been hindered

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by plaintiff’s own failure to comply with the court’s orders and prosecute the case.

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In sum, after a careful evaluation of all the Ferdik factors, the court finds that plaintiff’s
case should be dismissed.
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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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2. The Clerk of Court be directed to vacate all dates and close this case.

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In light of the above recommendations, IT IS HEREBY ORDERED that the Clerk of

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Court shall randomly assign a United States District Judge to this matter.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served on all parties and filed with the court within fourteen (14) days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED AND RECOMMENDED.
Dated: April 27, 2015

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