Khamseh v. Colvin

Filing 16

ORDER OF DISMISSAL. Motion due by 3/24/2014. Signed by Judge Jon S. Tigar on March 9, 2014. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 3/9/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ZOHREH AFSHAR KHAMSEH,

Case No. 13-cv-03648-JST

Plaintiff,
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v.

ORDER OF DISMISSAL

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CAROLYN COLVIN,
Defendant.

United States District Court
Northern District of California

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On August 6, 2013, the Court issued its Procedural Order for Social Security Review

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Actions requiring in part that Plaintiff “serve and file a motion for summary judgment or for

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remand within 28 days of service of defendant’s answer.” ECF No. 2. Defendant filed a

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certificate of service dated December 16, 2013, certifying service of Defendant’s Answer via first

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class mail. At the latest, Plaintiff’s motion for summary judgment was due January 16, 2014. No

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motion was filed.
This Court then ordered Plaintiff to show cause in writing why this action should not be

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dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply

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with a Court Order. Plaintiff’s response to the Court’s Order to Show Cause was due February 24,

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2014. Plaintiff filed a response in the form of a letter on February 25, 2014, the entirety of which

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reads: “The reason I did not write to your office is because of my health issue. I am not agree[sic]

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with your decision. I do not want the complaint be dismissed.” ECF No. 15. For the reasons

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discussed below, the Court will afford Plaintiff one more opportunity to file a motion for summary

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judgment or remand. Should Plaintiff again fail to file a motion for summary judgment or

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remand, the Court will dismiss this action with prejudice.

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I.

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LEGAL STANDARD
“Under Ninth Circuit precedent, when a plaintiff fails to amend his complaint after the

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district judge dismisses the complaint with leave to amend, the dismissal is typically considered a

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dismissal for failing to comply with a court order rather than for failing to prosecute the claim.”

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Yourish v. California Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). “In determining whether to

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dismiss a claim for failure to prosecute or failure to comply with a court order, the Court must

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weigh the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the

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availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on

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their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Dismissal is appropriate

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“where at least four factors support dismissal . . . or where at least three factors strongly support
dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citation and

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United States District Court
Northern District of California

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internal quotation marks omitted).

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II.

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ANALYSIS
The Court concludes that four of the five factors discussed above strongly support the

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dismissal of this action. However, in an abundance of caution, the Court will allow Plaintiff one

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more opportunity to comply with the Court’s Procedural Order for Social Security Review

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Actions.

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The first two factors, namely the public’s interest in expeditious resolution of litigation and

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the court’s need to manage its docket, relate to “the efficient administration of judicial business for

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the benefit of all litigants with cases pending.” Nealey v. Transportacion Maritima Mexicana, S.

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A., 662 F.2d 1275, 1279 (9th Cir. 1980). Here, by failing to comply with the Court’s orders,

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Plaintiff has completely stalled this action, thereby depriving the Court of the ability to control the

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pace of its docket. Accordingly, these factors weigh strongly in favor of dismissal.

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Although the third factor, the risk of prejudice to the defendant, may not appear to apply to

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a case in which defendants have not appeared, the Ninth Circuit has held that “[w]hether prejudice

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is sufficient to support an order of dismissal is in part judged with reference to the strength of the

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plaintiff’s excuse for the default.” Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987).

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“[A] presumption of prejudice arises from the plaintiffs’ failure to prosecute.” Hernandez, 138 at

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400. A plaintiff may rebut this presumption only “with an excuse for his delay that is anything but
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frivolous.” Nealey, 662 F.2d at 1281. Here, Plaintiff’s letter explains only that Plaintiff has not

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filed a motion for summary judgment or remand in compliance with the Court’s Order because of

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an unspecified “health issue.” Plaintiff does not explain when Plaintiff intends to file a motion.

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That explanation is insufficient. Accordingly, this factor also weighs strongly in favor of

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dismissal.
The fourth factor concerns the public policy favoring disposition of cases on their merits,

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which normally “strongly counsels against dismissal.” In re Phenylpropanolamine (PPA) Prods.

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Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006). Nevertheless, the Ninth Circuit has recognized

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that “a case that is stalled or unreasonably delayed by a party’s failure to comply with deadlines . .

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. cannot move forward toward resolution on the merits.” Id. at 1228. For this reason, “this factor

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United States District Court
Northern District of California

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lends little support to a party whose responsibility it is to move a case toward disposition on the

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merits but whose conduct impedes progress in that direction.” Id. (citations and internal quotation

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marks omitted). Here, Plaintiff’s failure to comply with the Court’s orders has impeded all

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progress in this case. Thus, this factor is neutral at best.

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Finally, the fifth factor pertains to the availability of less drastic sanctions. Here, the Court

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gave Plaintiff two opportunities to comply with the Court’s orders and an opportunity to explain

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the lack of diligence in prosecuting this action. The Court has fulfilled its “obligation to warn the

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plaintiff that dismissal is imminent.” Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992). Rather

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than dismiss the complaint with prejudice after Plaintiff failed to file a motion for summary

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judgment, the Court attempted the lesser sanction of issuing an Order to Show Cause and

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providing yet another opportunity to comply. Cf. Yourish, 191 F.3d at 992. These opportunities

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and warnings are sufficient to establish that the Court has considered sanctions short of dismissal.

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In re PPA Prods. Liab. Litig., 460 F.3d at 1229 (“Warning that failure to obey a court order will

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result in dismissal can itself meet the ‘consideration of alternatives’ requirement.”) (citation

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omitted); see also Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981) (“Though

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there are a wide variety of sanctions short of dismissal available, the district court need not

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exhaust them all before finally dismissing a case”).

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Though the Court has adequately “provide[d] the litigant with notice of the deficiencies” in
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the prosecution of this action, and provided an opportunity for compliance, Ferdik v. Bonzelet,

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963 F.2d 1258, 1261 (9th Cir. 1992), the Court will afford Plaintiff one more opportunity to file a

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motion for summary judgment or remand. Failure to file a motion will result in dismissal with

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prejudice.

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III.

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CONCLUSION
Plaintiff is ORDERED to file either a motion for summary judgment or remand by no later

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than fourteen days from the date of this Order, in compliance with the Court’s Procedural Order

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for Social Security Review Actions. Failure to do so will result in an automatic dismissal of the

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case with prejudice and closure of the case file.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: March 9, 2014
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JON S. TIGAR
United States District Judge

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