Cottier v. Commissioner of Social Security
Filing
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ORDER DISMISSING CASE. Signed by Judge Nandor J. Vadas on 10/31/2016. (njvlc2, COURT STAFF) (Filed on 10/31/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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EUREKA DIVISION
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NATASHA COTTIER,
Case No. 15-cv-04917-NJV
Plaintiff,
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v.
ORDER OF DISMISSAL FOR FAILURE
TO PROSECUTE
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United States District Court
Northern District of California
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COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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On September 16, 2016, the court entered an Order (Doc. 14), sua sponte granting Plaintiff
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an additional fourteen (14) days to file a motion for summary judgment and warning Plaintiff that
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failure to file a motion would result in the dismissal of this action for failure to prosecute. Plaintiff
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has failed to file a motion or otherwise respond to the court.
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Plaintiff filed the Complaint (Doc. 1) seeking judicial review of an administrative law
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judge (“ALJ”) decision denying Plaintiff‟s application for disability benefits under 42 U.S.C. §§
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405(g) and 1383(c)(3). Both parties consented to the jurisdiction of a magistrate judge. (Docs. 6
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& 10). Following service, the Commissioner filed an Answer and lodged the administrative
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transcript. (Docs. 12 & 13). Both the Answer and the transcript were served on Plaintiff in paper
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form by mail. See Cert. of Service (Doc. 12-1 & 13-12). Pursuant to the Social Security
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Procedural Order (Doc. 14) entered in this case, Plaintiff was required to “serve and file a motion
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for summary judgment or for remand within thirty days of service of defendant‟s answer.”
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Because more than thirty days had passed since the Commissioner had filed her Answer, and
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Plaintiff had not filed her motion, the court entered the Order granting Plaintiff an additional 14
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days to file her motion. As Plaintiff has disregarded the court‟s order, the court finds this matter
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appropriate for dismissal under Federal Rule of Civil Procedure 41(b).
“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action
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for failure to comply with any order of the court.” Ferdik v. Bonzelet 963 F.2d 1258, 1260 (9th
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Cir. 1992). “In determining whether to dismiss a claim for failure to prosecute or failure to comply
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with a court order, the Court must weigh the following factors: (1) the public‟s interest in
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expeditious resolution of litigation; (2) the court‟s need to manage its docket; (3) the risk of
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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the
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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,
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642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260–61).
The court finds that these factors support dismissal. First, “[t]he public‟s interest in
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United States District Court
Northern District of California
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expeditious resolution of litigation always favors dismissal.” Yourish v. California Amplifier, 191
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F.3d 983, 990 (9th Cir. 1999). Second, the court‟s need to manage its docket weighs in favor of
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dismissal. It is clear Plaintiff has no interest in participating in this matter and the court cannot
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manage its docket when the prosecuting party will not participate. Third, the risk of prejudice to
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the defendant generally requires that “a defendant . . . establish that plaintiff‟s actions impaired
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defendant‟s ability to proceed to trial or threatened to interfere with the rightful decision of the
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case.” Pagtalunan, 291 F.3d at 642. However, “a presumption of prejudice arises from a
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plaintiff‟s unexplained failure to prosecute.” Lamina v. Syringa Gen. Hosp., 279 F.3d 750, 753
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(9th Cir. 2002). Plaintiff has not overcome this presumption and, thus, this factor weighs in favor
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of dismissal. Fourth, there appears no available less drastic alternative. The court has already sua
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sponte granted Plaintiff a continuance and warned Plaintiff that failure to file a brief would result
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in dismissal. Despite that warning Plaintiff has failed to comply with the court‟s order. The court
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finds that there is no available less drastic alternative and this factor weighs in favor of dismissal.
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The fifth factor weighs against dismissal, because “[p]ublic policy favors disposition of cases on
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the merits.” Pagtalunan, 291 F.3d at 643.
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Dismissal is appropriate “where at least four factors support dismissal, . . . or where at least
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three factors „strongly‟ support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th
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Cir. 1998) (quoting Ferdik, 963 F.2d at 1263). Here, four out of five factors support dismissal.
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Accordingly, it is ORDERED that this case is DISMISSED without prejudice for failure to
prosecute.
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A separate judgment shall issue.
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IT IS SO ORDERED.
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Dated: October 31, 2016
______________________________________
NANDOR J. VADAS
United States Magistrate Judge
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United States District Court
Northern District of California
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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NATASHA COTTIER,
Case No. 15-cv-04917-NJV
Plaintiff,
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v.
CERTIFICATE OF SERVICE
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United States District Court
Northern District of California
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COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
I, the undersigned, hereby certify that I am an employee of the U.S. District Court,
Northern District of California.
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That on October 28, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
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Natasha Cottier
P.O. Box 451
Orleans, CA 95556
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Dated: October 31, 2016
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Susan Y. Soong
Clerk, United States District Court
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By:________________________
Robert Illman, Law Clerk to the
Honorable NANDOR J. VADAS
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