Kappes v. Commissioner of Social Security

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 06/21/19 RECOMMENDING that the 1 Complaint be dismissed without prejudice and this action closed. Referred to Judge John A. Mendez; Objections to F&Rs due within 14 days. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE KAPPES, III,

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No. 2:18-cv-0002 JAM DB PS

Plaintiff,

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v.

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FINDINGS AND RECOMMENDATIONS

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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On May 28, 2019, the undersigned issued an order to show cause, ordering plaintiff to

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show cause in writing within fourteen days as to why this case should not be dismissed for lack of

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prosecution due to plaintiff’s failure to file a timely motion for summary judgment. (ECF No.

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15.) The 14-day period has passed and plaintiff has not responded to the court’s order in any

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manner.1
ANALYSIS

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The factors to be weighed in determining whether to dismiss a case for lack of prosecution

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are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need

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to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring

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This is the second time plaintiff has been issued an order to show cause for failure to prosecute.
(ECF No. 7.)
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disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of

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El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.

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1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that

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should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d

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at 1260.
Failure of a party to comply with the any order of the court “may be grounds for

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imposition by the Court of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.” Local Rule 110. Any individual representing himself or herself

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without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local

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Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable

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rules and law may be grounds for dismissal or any other sanction appropriate under the Local

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Rules. Id.

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Here, plaintiff failed to file a timely motion for summary judgment. Accordingly, the

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undersigned issued an order to show cause, that provided plaintiff with an opportunity to show

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good cause for plaintiff’s conduct. Plaintiff failed to respond to that order in any way. Plaintiff’s

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lack of prosecution of this case renders the imposition of monetary sanctions futile. Moreover,

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the public interest in expeditious resolution of litigation, the court’s need to manage its docket,

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and the risk of prejudice to the defendant all support the imposition of the sanction of dismissal.

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Only the public policy favoring disposition on the merits counsels against dismissal. However,

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plaintiff’s failure to prosecute the action in any way makes disposition on the merits an

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impossibility.
The undersigned will therefore recommend that this action be dismissed due to plaintiff’s

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failure to prosecute as well as plaintiff’s failure to comply with the court’s orders. See Fed. R.

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Civ. P. 41(b).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s January 2, 2018 complaint (ECF No. 1) be dismissed without prejudice; and

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2. This action be closed.

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These findings and recommendations will be 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)(1). Within fourteen (14)

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

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objections with the court. A document containing objections should be titled “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may, under certain circumstances, waive the right to appeal

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

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Dated: June 21, 2019

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DLB:6
DB\orders\orders.soc sec\kappes0002.dlop2.f&rs

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