Timofeeva v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Allison Claire on 6/1/2015 ORDERING 15 that its Order to Show Cause ECF 15 is DISCHARGED. (Reader, L)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARINA TIMOFEEVA,
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No. 2:14-cv-02560-AC
Plaintiff,
v.
ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.
On May 27, 2015, plaintiff filed a response to the court’s order to show cause why this
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action should not be dismissed for failure to prosecute. The court finds that plaintiff has not
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offered any explanation, let alone good cause, for her failure to comply with the scheduling order
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in this matter. Nevertheless, the court will discharge its order to show cause because plaintiff’s
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failure to adequately respond to its order does not merit the harsh penalty of dismissal.
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This is the second time that plaintiff has failed to comply with deadlines set by the court.
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On November 21, 2014, plaintiff was ordered to show cause why she had not timely complied
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with the court’s order regarding service of process. ECF No. 7. Plaintiff’s response reported that
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copies of the summons and complaint had been mailed to the USM that day, and acknowledged
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that she had no excuse for failing to timely comply with the court’s order. ECF No. 8. Id.
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Plaintiff then strongly implied that the court was somehow at fault for the “unprecedentedly rapid
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issuance” of its order to show cause. Id. Regardless, the court discharged its order to show cause
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on December 2, 2014. ECF No. 9. Counsel for plaintiff was cautioned that “future failures to
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comply with the court’s orders will not be met with such restraint.” Id.
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On March 11, 2015, the Commissioner of Social Security (“the Commissioner”) filed an
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answer and plaintiff’s administrative record, ECF Nos. 13, 14, giving plaintiff 45 days, or until
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April 25, 2015, to file a motion for summary judgment. See ECF No. 6 (Scheduling Order).
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Plaintiff failed to file a timely motion and on May 13, 2015, the court issued another order to
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show cause why the complaint should not be dismissed for failure to prosecute. ECF No. 15.
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Plaintiff’s response, which was filed on May 27, 2015, again failed to offer any reason for non-
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compliance with the court’s scheduling order. ECF No. 16. Instead, plaintiff states that she was
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planning on filing a request for an extension at the time the court issued its order to show cause.
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Id. Plaintiff’s response also attempts to deflect attention away from herself and onto the
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Commissioner, who she claims also failed to adhere to the court’s scheduling order by filing an
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untimely answer. Id. However, the fact that plaintiff was considering filing a motion for an
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extension when the court issued its order to show cause – a date after the deadline for plaintiff’s
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summary judgment motion had passed – does not explain the delay. Moreover, even if the
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Commissioner had filed an untimely answer and administrative record (which she did not), that
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would not give plaintiff license to ignore the court’s order in turn.
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“A scheduling order ‘is not a frivolous piece of paper, idly entered, which can be
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cavalierly disregarded by counsel without peril.’ Disregard of [scheduling orders] would
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undermine the court’s ability to control its docket, disrupt the agreed-upon course of the
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litigation, and reward the indolent and the cavalier.” Johnson v. Mammoth Recreations, Inc., 975
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F.2d 604, 610 (9th Cir. 1992) (citation omitted). Plaintiff’s response to the court’s order to show
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cause fails to offer even the barest of explanations for why she has twice now failed to comply
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with the court’s scheduling orders. Instead, plaintiff essentially argues that untimely filings are
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commonplace enough that consequences are not warranted. See ECF No. 16 (noting that counsel
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routinely requests extensions and fails to comply with scheduling orders in social security
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appeals). Plaintiff’s counsel is advised that such responses to orders to show cause are patently
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insufficient, and any further failures to adhere to the court’s scheduling order, absent a timely
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stipulation or motion to extend the deadline, will result in monetary sanctions.
Nevertheless, the court will not dismiss plaintiff’s matter. “‘[D]ismissal is a harsh penalty
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and, therefore, it should only be imposed in extreme circumstances.’” Hernandez v. City of El
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Monte, 138 F.3d 393, 399 (9th Cir. 1998). Plaintiff’s repeated failures to adequately respond to
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the court’s orders to show cause do not justify the dismissal of her complaint. Accordingly, THE
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COURT HEREBY ORDERS that its order to show cause, ECF No. 15, is DISCHARGED.
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DATED: June 1, 2015
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