Davis v. Commissioner of Social Security

Filing 13

ORDER and ORDER to SHOW CAUSEsigned by Magistrate Judge Kendall J. Newman on 5/12/2017 ORDERING Plaintiff within 14 days of this order to SHOW CASUE in writing what this action should not be dismissed based on plaintiff's failure to file a motio n for summary judgment and prosecute this case. ORDERING Plaintiff within 14 days of this order to file a motion for summary judgment. ORDERING Plaintiff within 14 days of this order Plaintiff shall file brief statement whether or not she consents to the jurisdiction of a United States magistrate judge. Failure to timely respond to the order to show cause and to timely file a motion for summary judgment may result in dismissal of the action. The Clerk of Court shall serve another copy of the court's 4 Scheduling Order along with a copy of this order. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHERIE DAVIS,

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No. 2:16-cv-2683-KJN
Plaintiff,

v.

ORDER AND

COMMISSIONER OF SOCIAL
SECURITY,

ORDER TO SHOW CAUSE

Defendant.

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Plaintiff, proceeding with the assistance of counsel, initially commenced this social

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security action on November 12, 2016. (ECF No. 1.) Pursuant to the court’s November 17, 2016

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scheduling order, plaintiff was required to file a motion for summary judgment and/or remand

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within 45 days from being served with a copy of the administrative record. (ECF No. 6.) On

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March 14, 2017, the Commissioner lodged the administrative record and served it on plaintiff by

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U.S. mail. (ECF Nos. 11, 12.) Accordingly, plaintiff was required to file a motion for summary

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judgment and/or remand by no later than April 28, 2017. However, as of the date of this order,

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plaintiff has not yet filed a motion for summary judgment.

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The court’s November 17, 2016 scheduling order in this matter expressly states that

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failure to adhere to scheduling deadlines “may result in sanctions, including dismissal. L.R. 110.

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Plaintiff has an affirmative duty to prosecute this action, and failure to do so may result in a
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dismissal for lack of prosecution. Fed. R. Civ. P. 41(b). Requests to modify this order must be

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made by written motion.” (ECF No. 6 at 3-4.)

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Accordingly, within fourteen (14) days of this order, plaintiff shall show cause in writing

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why this case should not be dismissed for lack of prosecution and failure to comply with court

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orders. Failure to timely file the required writing will result in a recommendation that this action

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be dismissed. See Fed. R. Civ. P. 41(b); E.D. Cal. L.R. 110; Hells Canyon Pres. Council v. U.S.

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

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

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or comply with the rules of civil procedure or the court’s orders).

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Furthermore, the court notes that plaintiff has not yet indicated whether or not she

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consents to the jurisdiction of the magistrate judge for all purposes. Therefore, plaintiff is

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directed to file a brief statement indicating whether or not she consents to the jurisdiction of a

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United States magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c). Importantly,

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plaintiff is under no obligation to so consent – plaintiff’s designation merely assists the court in

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determining how the case should be administratively processed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within fourteen (14) days of the date of this order, plaintiff shall show cause in

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writing why this action should not be dismissed based on plaintiff’s failure to file a

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motion for summary judgment and prosecute this case.

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2. Within fourteen (14) days of the date of this order, plaintiff shall file a motion for

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summary judgment that meets the requirements of the court’s November 17, 2016

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scheduling order.

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3. Within fourteen (14) days of the date of this order, plaintiff shall file a brief statement

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indicating whether or not she consents to the jurisdiction of a United States magistrate

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judge for all purposes pursuant to 28 U.S.C. § 636(c).

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4. Failure to timely respond to the order to show cause and to timely file a motion for

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

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Civil Procedure 41(b).
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5. The Clerk of Court shall serve another copy of the court’s November 17, 2017

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scheduling order (ECF No. 4) on plaintiff along with a copy of this order.

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IT IS SO ORDERED.
Dated: May 12, 2017

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