Ryan v. Astrue

Filing 22

ORDER Dismissing Case Without Prejudice for Failure to Prosecute (lblc1, COURT STAFF) (Filed on 2/21/2013) (Additional attachment(s) added on 2/21/2013: # 1 Certificate/Proof of Service) (ls, COURT STAFF).

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division PAUL C RYAN, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 11-00850 LB Plaintiff, v. ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE 13 MICHAEL J ASTRUE, 14 15 Defendant. _____________________________________/ 16 Plaintiff filed this action in February 2011 seeking judicial review of a decision by Michael 17 Astrue, the Commissioner of Social Security. See Complaint, ECF No. 1. All parties consented to 18 the undersigned’s jurisdiction and Defendant answered the complaint. See Consent (Plt.), ECF No. 19 5; Consent (Def.), ECF No. 8; Answer, ECF No. 12. On December 22, 2011, the court extended the 20 time for Plaintiff to file a motion for summary judgment until March 16, 2012. See Stipulation and 21 Order, ECF No. 17. 22 Since then, this action has come to a standstill. See generally Docket. The deadlines for this 23 social security appeal also have passed. See Social Security Procedural Order, ECF No. 2. On 24 January 8, 2013, the court ordered Plaintiff to show cause why this action should not be dismissed 25 for failure to prosecute. See Order to Show Cause, ECF No. 19. The court ordered Plaintiff to file a 26 written response no later than Thursday, January 17, 2013 and set a show cause hearing for February 27 7, 2013. Id. Plaintiff did not file a written response, despite the court’s order. Nonetheless, the 28 court issued a second order to show cause why this case should not be dismissed for failure to C 11-00850 LB (ORDER DISMISSING CASE) 1 prosecute. See Second Order to Show Cause, ECF No. 20. The court ordered Plaintiff to file a 2 written response by January 31, 2013. Id. Plaintiff again failed to respond. On February 21, 2013, 3 the court held a show cause hearing on the Second Order to Show Cause, and Plaintiff failed to 4 appear. 5 A court may dismiss an action, without prejudice, based on a party’s failure to prosecute an 6 action. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In determining whether to 7 dismiss a claim for failure to prosecute or failure to comply with a court order, the court weighs the 8 following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 9 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); 12 For the Northern District of California drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. 11 UNITED STATES DISTRICT COURT 10 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). These factors are a guide and “are ‘not a series of 13 conditions precedent before the judge can do anything.’” In re Phenylpropanolamine (PPA) 14 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. 15 Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four 16 factors support dismissal, . . . . or where at least three factors ‘strongly’ support dismissal.” 17 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Ferdik, 963 F.2d at 18 1263). 19 Here, four factors favor support dismissal. This litigation has ground to a halt, and Plaintiff is 20 not responsive to the court’s orders. This certainly is not “expeditious,” and the court must keep the 21 cases on its docket moving. There also is no risk of prejudice to the remaining defendants, and the 22 court already tried to move this case along by issuing two orders to show cause, but Plaintiff never 23 responded to them. 24 25 26 27 In sum, the court concludes that four of the five relevant factors weigh in favor of dismissal. Accordingly, the court dismisses this action without prejudice for failure to prosecute. IT IS SO ORDERED. Dated: February 21, 2013 _______________________________ LAUREL BEELER United States Magistrate Judge 28 C 11-00850 LB (ORDER DISMISSING CASE) 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?