Jordan v. Commissioner of Social Security

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 4/8/15 ORDERING the Clerk to randomly assign a District Court Judge to this Case. This Case has been ASSIGNED to U.S. District Judge Kimberly J. Mueller and U.S. Magistrate Judge Allison Claire for a ll further proceedings. The Order to Show Cause 8 is VACATED. IT IS FURTHER RECOMMENDED that this Action be dismissed for failure to prosecute and failure to comply with a Court Order. These Findings and Recommendations are submitted to U.S. District Judge Kimbelry J. Mueller. Objections to these F&Rs due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAMECA T. JORDAN,

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No. 2:14-cv-02992-AC

Plaintiff,
v.

ORDER AND FINDINGS &
RECOMMENDATIONS

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Plaintiff is proceeding in this action in pro per. On December 30, 2014, the

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Commissioner of Social Security (“the Commissioner”) removed this matter from Sacramento

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Superior Court. ECF No. 1. In the Commissioner’s notice of removal, she argued that plaintiff’s

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complaint constitutes an appeal from her denial of social security benefits. Id. at 2. On the same

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day the Commissioner filed an ex parte application requesting an extension of time to file a

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responsive pleading. ECF No. 4.

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On January 5, 2015, the court issued an order requiring plaintiff to file an amended

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complaint within thirty (30) days. ECF No. 5. The court’s order explained that it could not treat

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plaintiff’s state court complaint as a social security appeal because it contained too few factual

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allegations. Id. On January 7, 2015, the court denied the Commissioner’s ex parte application as

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moot. ECF No. 6. By March 5, 2015, plaintiff had yet to file an amended complaint and

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accordingly, the court ordered plaintiff to show cause why her action should not be dismissed for
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failure to prosecute. ECF No. 8. Plaintiff has yet to respond to the court’s order.
Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action

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for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to

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comply with the court’s local rules, or failure to comply with the court’s orders. See, e.g.,

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Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte

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to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest

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Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant

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to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply

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with the rules of civil procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260

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

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an action for failure to comply with any order of the court.”); Pagtalunan v. Galaza, 291 F.3d 639,

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642–43 (9th Cir. 2002) (affirming district court’s dismissal of case for failure to prosecute when

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habeas petitioner failed to file a first amended petition). This court’s Local Rules are in accord.

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See E.D. Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any

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order of the Court may be grounds for imposition by the Court of any and all sanctions authorized

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by statute or Rule or within the inherent power of the Court.”); E.D. Local Rule 183(a) (providing

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that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the court's Local

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Rules, and other applicable law may support, among other things, dismissal of that party’s

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action).

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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, 291 F.3d at 642–43; Ghazali v. Moran, 46 F.3d 52, 53 (9th

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Cir. 1995), cert. denied, 516 U.S. 838 (1995). The Ninth Circuit Court of Appeals has stated that

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“[t]hese factors are not a series of conditions precedent before the judge can do anything, but a
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way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods.

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Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).

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Although involuntary dismissal can be a harsh remedy, on balance the five relevant

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factors weigh in favor of dismissal of this action. The first two factors strongly support dismissal

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of this action. Plaintiff’s failure to respond to the court’s order to show cause strongly suggests

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that she has abandoned this action or is not interested in seriously prosecuting it. See, e.g.,

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Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in

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expeditious resolution of litigation always favors dismissal.”). Any further time spent by the

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court on this case, which plaintiff has demonstrated a lack of any serious intention to pursue, will

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consume scarce judicial resources and take away from other active cases. See Ferdik, 963 F.2d at

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1261 (recognizing that district courts have inherent power to manage their dockets without being

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subject to noncompliant litigants).

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In addition, the third factor, which considers prejudice to a defendant, favors dismissal.

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See Ferdik, 963 F.2d at 1262. Plaintiff has failed to both file a timely amended complaint as

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instructed by the court, and respond to the court’s order to show cause. Plaintiff’s unreasonable

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delay in prosecuting this action has further delayed the resolution of this case on the merits.

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Unreasonable delay is presumed to be prejudicial. See, e.g., In re Phenylpropanolamine (PPA)

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Prods. Liab. Litig., 460 F.3d at 1227.

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The fifth factor, which considers the availability of less drastic measures, also supports

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dismissal of this action. The court has already pursued remedies that are less drastic than a

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recommendation of dismissal, including providing plaintiff with an opportunity to explain her

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failure to file a timely amended complaint. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132

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(9th Cir. 1987) (“[E]xplicit discussion of alternatives is unnecessary if the district court actually

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tries alternatives before employing the ultimate sanction of dismissal.”), cert. denied, 488 U.S.

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819 (1988). Having failed to receive a response from plaintiff, the court finds no suitable

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alternative to a recommendation for dismissal of this action.

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The court also recognizes the importance of giving due weight to the fourth factor, which

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addresses the public policy favoring disposition of cases on the merits. However, for the reasons
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set forth above, factors one, two, three, and five strongly support a recommendation of dismissal

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of this action, and factor four does not materially counsel otherwise. Dismissal is proper “where

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at least four factors support dismissal or where at least three factors ‘strongly’ support dismissal.”

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Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks

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omitted). Under the circumstances of this case, the other relevant factors outweigh the general

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public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263.

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Accordingly, IT IS HEREBY ORDERED:

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1. The Clerk randomly assign a district court judge to this case; and

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2. The order to show cause is vacated.

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IT IS FURTHER RECOMMENDED that this action be dismissed for failure to prosecute
and failure to comply with a court order.

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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 days

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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 response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 8, 2015

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