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).

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