Larson v. Astrue

Filing 23

ORDER DISMISSING WITHOUT PREJUDICE Plaintiff's Action. Signed by Magistrate Judge Laurel Beeler on 5/20/2013. (lblc2, COURT STAFF) (Filed on 5/20/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
CARISSA E. LARSON,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,
v.

No. C 12-03017 LB
ORDER DISMISSING WITHOUT
PREJUDICE PLAINTIFF’S ACTION

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MICHAEL J. ASTRUE,
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Defendant.
_____________________________________/

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On June 12, 2012, Carissa Larson, through her counsel Harvey Sackett, filed a complaint against

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the then-Commissioner of the Social Security Administration (“SSA”), Michael Astrue, that asks the

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court to review the SSA’s decision denying her claim for disability benefits.1 Complaint, ECF No.

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1.2 Mr. Astrue answered her complaint on November 20, 2012. Answer, ECF No. 11. Originally,

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Ms. Larson’s motion for summary judgment was due by December 18, 2013, Social Security

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Procedural Order, ECF No. 2 (providing that, in such cases, a plaintiff’s summary judgment motion

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is due within 28 days of the filing and service of a defendant’s answer), but the court approved the

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parties’ two stipulations to allow her additional time to file it, Order Approving First Stipulation

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Extending Time, ECF No. 176; Order Approving Second Stipulation Extending Time, ECF No. 19.

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In the second order, filed on February 5, 2013, the court, at the request of the parties, gave Mr.

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Mr. Astrue was succeeded by current-Commissioner Carolyn Colvin on February 14, 2013.

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document.
C 12-03017 LB
ORDER

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Larson until March 21, 2013 to file her motion for summary judgment and Mr. Astrue until April 18,

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2013 to file any opposition and cross-motion for summary judgment. Order Approving Second

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Stipulation Extending Time, ECF No. 19 at 1. Then, on March 15, 2013, the court approved Mr.

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Larson’s request to represent herself in pro per and to allow Mr. Sackett to withdraw as her attorney.

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Order of Substitution of Counsel, ECF No. 21.

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On April 24, 2013, because Mr. Larson had not filed any motion for summary judgment—even

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though her deadline for doing so was March 21, 2013—the court ordered Ms. Larson to show cause,

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in writing and by May 10, 2013, why her action should not be dismissed for failure to prosecute.

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Order to Show Cause, ECF No. 22.

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To date, Ms. Larson has filed neither a summary judgment motion nor a response to the court’s
order to show cause, and the court has received no further indication that she intends to prosecute

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For the Northern District of California

UNITED STATES DISTRICT COURT

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this action. See generally Docket.

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A court may dismiss an action based on a party’s failure to prosecute an action. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In determining whether to dismiss a claim for

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failure to prosecute or failure to comply with a court order, the court weighs the following factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

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docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic

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alternatives; and (5) the public policy favoring disposition of cases on their merits. Pagtalunan v.

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Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); Ghazali v. Moran,

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46 F.3d 52, 53 (9th Cir. 1995). These factors are a guide and “are ‘not a series of conditions

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precedent before the judge can do anything.’” In re Phenylpropanolamine (PPA) Products Liability

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Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158

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F.3d 1051, 1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four factors support

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dismissal, . . . or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El

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Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Ferdik, 963 F.2d at 1263).

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Here, four factors support dismissal. Ms. Larson has not filed a summary judgment motion, even

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though it is past the court’s deadline for doing so, and she has failed to respond to the court’s order

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to show cause. This certainly is not “expeditious litigation,” and the court must keep the cases on its

C 12-03017 LB
ORDER

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docket moving. There also is no risk of prejudice to the Defendant. Finally, the court has given her

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many opportunities to do so: it extended the deadline for filing her motion twice and also

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specifically notified her that she was past the deadline and gave her a chance to explain to the court

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why she missed it. She has failed to take advantage of these opportunities.

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In sum, the court concludes that four of the five relevant factors weigh in favor of dismissal.

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Accordingly, the court DISMISSES WITHOUT PREJUDICE Ms. Larson’s action for failure to

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prosecute. The Clerk of the Court shall close the file.

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IT IS SO ORDERED.
Dated: May 20, 2013
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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C 12-03017 LB
ORDER

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