Levit v. Social Security Administration

Filing 10

Order by Hon. James Donato dismissing case with prejudice for failure to prosecute. (jdlc3S, COURT STAFF) (Filed on 4/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARGERY K. LEVIT,

Case No. 14-cv-05117-JD

Plaintiff,
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v.

ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

United States District Court
Northern District of California

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SOCIAL SECURITY ADMINISTRATION,

Re: Dkt. No. 9

Defendant.
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Pro se plaintiff Margery K. Levit filed a complaint against Defendant Social Security

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Administration (“SSA”) in Sonoma County Superior Court on August 19, 2014. Dkt. No. 1, Ex.

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A. On November 19, 2014, SSA removed the case to this Court, Dkt. No. 1, and on November 26,

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2014, SSA filed a Motion to Dismiss the Complaint. See Dkt. No. 6. Under Civil Local Rule 7-3,

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Levit’s response to SSA’s motion was due on December 10, 2014. Levit did not file a response to

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SSA’s motion. As a result, on March 30, 2015, the Court ordered Levit to show cause by April

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13, 2015, why the motion to dismiss should not be granted and the case dismissed for failure to

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prosecute.

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The April 13 deadline has come and gone without a response. The Court therefore
dismisses the action with prejudice for failure to prosecute.
DISCUSSION
Federal Rule of Civil Procedure 41(b) provides the Court with authority to dismiss a case

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

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Bonzelet, 963 F.2d 1258, 1260 (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 must weigh the following

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

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

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less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.”

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See Espinosa v. Washington Mut. Bank, No. C 10-04464 SBA, 2011 WL 334209, at *1 (N.D. Cal.

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Jan. 31, 2011) (citing Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)).
Application of these factors here weighs in favor of dismissal. Levit has failed to file a

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response to SSA’s motion to dismiss as required by the Local Rules and by court order, despite

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having been warned that the case might be dismissed as a result for failure to prosecute. See Dkt.

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No. 9. With respect to the first factor, “[t]he public’s interest in expeditious resolution of litigation

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always favors dismissal.” Espinosa, 2011 WL 334209, at *1 (citing Yourish v. Cal. Amplifier, 191

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United States District Court
Northern District of California

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

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“without being subject to routine noncompliance of litigants.” Pagtalunan, 291 F.3d at 642; see

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also Ferdik, 963 F.2d at 1261 (non-compliance with a court’s order diverts “valuable time that

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[the court] could have devoted to other major and serious criminal and civil cases on its docket.”).

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For the third factor, having filed nothing at all since the case was removed, Levit has offered no

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explanation for her failure to respond to SSA’s motion to dismiss or the Court’s order to show

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cause. This weighs strongly in favor of dismissal. See Espinosa, 2011 WL 334209, at *2. With

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respect to the fourth factor, the Court already issued an Order to Show Cause, which provided

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Levit with additional notice of the pending motion to dismiss, as well as additional time to respond

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to the merits of that motion. See Dkt. No. 9. The Court’s issuance of the Order to Show Cause

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satisfies the consideration of less drastic sanctions requirement. See Ferdik, 963 F.2d at 1262.

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Although the fifth factor -- the public policy favoring disposition of cases on their merits -- might

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weigh against dismissal, on its own, the cumulative weight of the other factors overrides it. See

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Pagtalunan, 291 F.3d at 643 (finding district court did not abuse its discretion in dismissing case

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where three of the five factors weighed in favor of dismissal).

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CONCLUSION

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Because four of the five relevant factors weigh in favor of granting SSA’s unopposed

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motion to dismiss, the Court grants that motion and dismisses this case in its entirety with
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prejudice. The clerk will enter judgment and close the case.
IT IS SO ORDERED.
Dated: April 20, 2015

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________________________
JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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