Merchant v. Astrue

Filing 20

ORDER DISMISSING ACTION. Signed by Judge Saundra Brown Armstrong on 9/25/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 9/25/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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7 LEE ANN ALICIA MERCHANT,

Plaintiff,

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Case No: C 12-1644 SBA
ORDER DISMISSING ACTION

vs.

10 MICHAEL J. ASTRUE,

Commissioner of Social Security,
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Defendant.
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On September 12, 2013, the Court issued an Order to Show Cause re Dismissal

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(“OSC”) directing Plaintiff to explain why the action should not be dismissed based on her

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failure to file and serve a motion for summary judgment in accordance with the Court’s

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Procedural Order for Social Security Review Actions. Dkt. 19. Plaintiff was given until

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September 20, 2013, to respond to the OSC, and was warned that the failure to timely

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respond would constitute grounds for dismissing the action. To date, the Court has

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received no response from Plaintiff.

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

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action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d

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1258, 1260 (9th Cir. 1992); Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (“[t]he

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authority of the federal trial court to dismiss a plaintiff’s action with prejudice because of

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his failure to prosecute cannot seriously be doubted.”). “In determining whether to dismiss

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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

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of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public

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policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002).

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In the instant case, the Court finds that the above-referenced factors weigh in favor

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of dismissal. With regard to the first factor, “[t]he public’s interest in expeditious

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resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999). This is particular true here, where Plaintiff’s failure to file her motion

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for summary judgment has impeded the Court’s ability to resolve the action.

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The second factor, the Court’s need to manage its docket, also militates in favor of

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dismissal. See Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage its

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docket without being subject to routine noncompliance of litigants”); Yourish, 191 F.3d

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983, 990 (9th Cir. 1999) (recognizing court’s need to control its own docket); see also

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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

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docket.”).

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The third factor, the risk of prejudice to the defendant, generally requires that “a

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defendant … establish that plaintiff’s actions impaired defendant’s ability to proceed to trial

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or threatened to interfere with the rightful decision of the case.” Pagtalunan, 291 F.3d at

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642. At the same time, the Ninth Circuit has “related the risk of prejudice to the plaintiff’s

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reason for defaulting.” Id. Here, Plaintiff has offered no explanation for her failure to

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respond to the OSC or file her summary judgment motion, nor is any apparent from the

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record. These facts also weigh strongly in favor of dismissal. See Yourish, 191 F.3d at

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991; Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). (per curiam).

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As to the fourth factor, the Court has already considered less drastic alternatives to

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dismissal. In its OSC, the Court warned Plaintiff that the failure to respond to the OSC

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would result in the dismissal of the action. “[A] district court’s warning to a party that

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failure to obey the court’s order will result in dismissal can satisfy the ‘consideration of

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[less drastic sanctions]’ requirement.” Ferdik, 963 F.2d at 1262.

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The final factor, which favors disposition of cases on the merits, by definition,

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weighs against dismissal. Pagtalunan, 291 F.3d at 643 (“Public policy favors disposition of

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cases on the merits. Thus, this factor weighs against dismissal.”).

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In sum, the Court concludes that four of the five relevant factors weigh strongly in

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favor of granting dismissing the action. Id. (affirming dismissal where three factors

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favored dismissal, while two factors weighed against dismissal). Accordingly,

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IT IS HEREBY ORDERED THAT the instant action is DISMISSED without

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prejudice, pursuant to Rule 41(b). The Clerk shall close the file and terminate any pending

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Docket matters.

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IT IS SO ORDERED.
Dated: September 25, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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