Cottier v. Commissioner of Social Security

Filing 15

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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 NATASHA COTTIER, Case No. 15-cv-04917-NJV Plaintiff, 9 v. ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE 10 United States District Court Northern District of California 11 12 COMMISSIONER OF SOCIAL SECURITY, Defendant. 13 14 On September 16, 2016, the court entered an Order (Doc. 14), sua sponte granting Plaintiff 15 an additional fourteen (14) days to file a motion for summary judgment and warning Plaintiff that 16 failure to file a motion would result in the dismissal of this action for failure to prosecute. Plaintiff 17 has failed to file a motion or otherwise respond to the court. 18 Plaintiff filed the Complaint (Doc. 1) seeking judicial review of an administrative law 19 judge (“ALJ”) decision denying Plaintiff‟s application for disability benefits under 42 U.S.C. §§ 20 405(g) and 1383(c)(3). Both parties consented to the jurisdiction of a magistrate judge. (Docs. 6 21 & 10). Following service, the Commissioner filed an Answer and lodged the administrative 22 transcript. (Docs. 12 & 13). Both the Answer and the transcript were served on Plaintiff in paper 23 form by mail. See Cert. of Service (Doc. 12-1 & 13-12). Pursuant to the Social Security 24 Procedural Order (Doc. 14) entered in this case, Plaintiff was required to “serve and file a motion 25 for summary judgment or for remand within thirty days of service of defendant‟s answer.” 26 Because more than thirty days had passed since the Commissioner had filed her Answer, and 27 Plaintiff had not filed her motion, the court entered the Order granting Plaintiff an additional 14 28 days to file her motion. As Plaintiff has disregarded the court‟s order, the court finds this matter 1 2 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 3 for failure to comply with any order of the court.” Ferdik v. Bonzelet 963 F.2d 1258, 1260 (9th 4 Cir. 1992). “In determining whether to dismiss a claim for failure to prosecute or failure to comply 5 with a court order, the Court must weigh the following factors: (1) the public‟s interest in 6 expeditious resolution of litigation; (2) the court‟s need to manage its docket; (3) the risk of 7 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 8 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 9 642 (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 11 United States District Court Northern District of California 10 expeditious resolution of litigation always favors dismissal.” Yourish v. California Amplifier, 191 12 F.3d 983, 990 (9th Cir. 1999). Second, the court‟s need to manage its docket weighs in favor of 13 dismissal. It is clear Plaintiff has no interest in participating in this matter and the court cannot 14 manage its docket when the prosecuting party will not participate. Third, the risk of prejudice to 15 the defendant generally requires that “a defendant . . . establish that plaintiff‟s actions impaired 16 defendant‟s ability to proceed to trial or threatened to interfere with the rightful decision of the 17 case.” Pagtalunan, 291 F.3d at 642. However, “a presumption of prejudice arises from a 18 plaintiff‟s unexplained failure to prosecute.” Lamina v. Syringa Gen. Hosp., 279 F.3d 750, 753 19 (9th Cir. 2002). Plaintiff has not overcome this presumption and, thus, this factor weighs in favor 20 of dismissal. Fourth, there appears no available less drastic alternative. The court has already sua 21 sponte granted Plaintiff a continuance and warned Plaintiff that failure to file a brief would result 22 in dismissal. Despite that warning Plaintiff has failed to comply with the court‟s order. The court 23 finds that there is no available less drastic alternative and this factor weighs in favor of dismissal. 24 The fifth factor weighs against dismissal, because “[p]ublic policy favors disposition of cases on 25 the merits.” Pagtalunan, 291 F.3d at 643. 26 Dismissal is appropriate “where at least four factors support dismissal, . . . or where at least 27 three factors „strongly‟ support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th 28 Cir. 1998) (quoting Ferdik, 963 F.2d at 1263). Here, four out of five factors support dismissal. 2 1 2 Accordingly, it is ORDERED that this case is DISMISSED without prejudice for failure to prosecute. 3 A separate judgment shall issue. 4 IT IS SO ORDERED. 5 6 7 Dated: October 31, 2016 ______________________________________ NANDOR J. VADAS United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 NATASHA COTTIER, Case No. 15-cv-04917-NJV Plaintiff, 6 v. CERTIFICATE OF SERVICE 7 8 9 10 United States District Court Northern District of California 11 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. 12 13 14 15 16 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. 17 18 19 Natasha Cottier P.O. Box 451 Orleans, CA 95556 20 21 Dated: October 31, 2016 22 23 24 Susan Y. Soong Clerk, United States District Court 25 26 27 By:________________________ Robert Illman, Law Clerk to the Honorable NANDOR J. VADAS 28 4

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