Perkins v. Colvin

Filing 30

ORDER DISMISSING CASE. Signed by Judge James Donato on 9/26/14. (lrcS, COURT STAFF) (Filed on 9/26/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

CHRISTOPHER A. PERKINS,

Case No. 13-cv-02640-JD

Plaintiff,
8
v.

ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

9
10

CAROLYN W. COLVIN,
Defendant.

United States District Court
Northern District of California

11
12
13

In this action arising out of the Social Security Commissioner’s denial of social security

14

benefits, plaintiff Christopher Perkins was originally required by Court order and under the Local

15

Rules to file a motion for summary judgment or for remand by November 18, 2013. See Dkt.

16

Nos. 2, 17. Plaintiff was given multiple reprieves from that deadline, both by stipulated request

17

and then because his counsel was permitted to withdraw on the basis of an alleged “breakdown in

18

communication.” Dkt. No. 25.

19

At the case management conference that was held on July 2, 2014, however, the Court

20

directed defendant to provide to Mr. Perkins directly a printed and electronic copy of the

21

administrative record, and ordered Mr. Perkins to file a motion for summary judgment within 60

22

days from his receipt of the record. Dkt. No. 28. The Court further expressly explained to

23

Mr. Perkins that even though he was now representing himself, his case could be dismissed for

24

failure to prosecute if he failed to file a summary judgment motion by that deadline. Id.

25

On July 18, 2014, defendant filed a certificate of service attesting that a paper and digital

26

copy of the certified administrative record was being mailed by first-class U.S. Mail to plaintiff.

27

Dkt. No. 29. The 60-day deadline has consequently come and gone, and plaintiff has not filed a

28

summary judgment motion or any other document. The Court therefore dismisses the action with

1
2
3

prejudice for failure to prosecute.
DISCUSSION
Federal Rule of Civil Procedure 41(b) provides the Court with authority to dismiss a case

4

for failure to prosecute or to comply with any of its orders. Fed. R. Civ. P. 41(b); see Ferdik v.

5

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

6

failure to prosecute or failure to comply with a court order, the Court must weigh the following

7

factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to

8

manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the availability of

9

less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.”
See Espinosa v. Washington Mut. Bank, No. C 10-04464 SBA, 2011 WL 334209, at *1 (N.D. Cal.

11
United States District Court
Northern District of California

10

Jan. 31, 2011) (citing Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)).

12

Application of these factors here weighs in favor of dismissal. Mr. Perkins has failed to

13

file a motion for summary judgment as required by the Local Rules and by court order, despite

14

having been warned twice that his case may be dismissed for failure to prosecute. See Dkt.

15

Nos. 17, 28. With respect to the first factor, “[t]he public’s interest in expeditious resolution of

16

litigation always favors dismissal.” Espinosa, 2011 WL 334209, at *1 (citing Yourish v. Cal.

17

Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). For the second factor, the Court must be able to

18

manage its docket “without being subject to routine noncompliance of litigants.” Pagtalunan, 291

19

F.3d at 642; see also Ferdik, 963 F.2d at 1261 (non-compliance with a court’s order diverts

20

“valuable time that [the court] could have devoted to other major and serious criminal and civil

21

cases on its docket.”). For the third factor, having filed nothing at all since he was provided with a

22

copy of the administrative record over 60 days ago, Mr. Perkins has offered no explanation for his

23

failure to file a summary judgment motion. This weighs strongly in favor of dismissal. See

24

Espinosa, 2011 WL 334209, at *2. With respect to the fourth factor, the Court has given

25

Mr. Perkins almost a year of extensions to file his summary judgment motion which was

26

originally due by November 18, 2013. Mr. Perkins was also given repeated warnings that his case

27

could be dismissed if he failed to prosecute it, most recently in person at the case management

28

conference on July 2, 2014. This is sufficient to satisfy the requirement that the Court consider
2

1

whether less drastic sanctions may be available. See Ferdik, 963 F.2d at 1262. Although the fifth

2

factor -- the public policy favoring disposition of cases on their merits -- might weigh against

3

dismissal on its own, the cumulative weight of the other factors overrides it. See Pagtalunan, 291

4

F.3d at 643 (finding district court did not abuse its discretion in dismissing case where three of the

5

five factors weighed in favor of dismissal).

6

CONCLUSION
Mr. Perkins has been notified more than once that his failure to file a motion for summary
judgment would lead to dismissal of this case for failure to prosecute, and he has failed to file a
summary judgment motion within the extended time period allowed by the Court. Consequently,
the case is dismissed with prejudice for failure to prosecute under Federal Rule of Civil Procedure
41(b).

7
8
9

IT IS SO ORDERED.
10
Dated: September 26, 2014

United States District Court
Northern District of California

11
12
13

______________________________________
JAMES DONATO
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

CHRISTOPHER A. PERKINS,

Case No. 13-cv-02640-JD

Plaintiff,
8
v.

CERTIFICATE OF SERVICE

9
10

CAROLYN W. COLVIN,
Defendant.

United States District Court
Northern District of California

11
12
13
14
15

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 9/26/2014, 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.

16
17
18

Christopher A. Perkins
1135 Judah Street
San Francisco, CA 94122

19
20

Dated: 9/26/2014

21
22
23

Richard W. Wieking
Clerk, United States District Court

24
25
26

By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

27
28
4