Mayhew v. Commissioner of Social Security

Filing 23

ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE. Signed by Judge Beth Labson Freeman on 10/14/2014. (blflc1, COURT STAFF) (Filed on 10/14/2014)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

SAN JOSE DIVISION

6
7

JOHN MAYHEW,

Case No. 13-cv-04521-BLF

Plaintiff,
8
v.
9
10

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

11
United States District Court
Northern District of California

ORDER TO SHOW CAUSE WHY
ACTION SHOULD NOT BE DISMISSED
FOR FAILURE TO PROSECUTE

12
13

For the reasons discussed below, Plaintiff is hereby ordered to show cause, in writing and

14

before October 31, 2014, why this action should not be dismissed for failure to prosecute and

15

failure to comply with a court order.

16

I.

BACKGROUND

17

This case was reassigned to the undersigned judge on April 17, 2014. Because it was not

18

clear whether Plaintiff had been served with the Social Security Procedural Order or Defendant’s

19

answer, the Court directed that Plaintiff be served (or possibly re-served) with those documents

20

and directed Plaintiff to file a motion for summary judgment or remand within twenty-eight days

21

after service of the answer.

22

Defendant served the answer on May 7, 2014, making Plaintiff’s motion for summary

23

judgment due on June 4, 2014. On June 2, 2014, Plaintiff filed an uncaptioned document along

24

with a proof of service indicating that he had mailed “Plaintiff’s Motion for Summary Judgment

25

Letter” to defense counsel. The Court took the uncaptioned document to be Plaintiff’s motion for

26

summary judgment.

27
28

However, on June 2, 2014, Plaintiff also submitted a document captioned, “Ammending
[sic] Complaint for Judicial Review of Decision of Commissioner of Social Security.” The

1

document was stamped “Received” by the Clerk’s Office. The Court determined that Plaintiff was

2

entitled to amend his complaint as of right, as he had submitted the amended pleading within

3

twenty-one days after service of the answer, and directed the Clerk’s Office to file the amended

4

complaint. Because Plaintiff had amended his pleading, the motion for summary judgment filed

5

with respect to the original complaint was moot. The Court issued a detailed scheduling order,

6

directing Defendant to answer the amended complaint and directing Plaintiff to file a motion for

7

summary judgment within twenty-eight days after service of the answer.
Defendant served her answer to the amended complaint on August 12, 2014. Plaintiff did

8
9
10

United States District Court
Northern District of California

11
12

not file a motion for summary judgment within twenty-eight days thereafter or as of the date of
this order.
II.

DISCUSSION
“In determining whether to dismiss a claim for failure to prosecute or failure to comply

13

with a court order, the Court must weigh the following factors: (1) the public’s interest in

14

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

15

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

16

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

17

642 (9th Cir. 2002).

18

This Court has delayed the present litigation once to ensure that Plaintiff received service

19

of relevant documents, and a second time to ensure that Plaintiff was afforded the opportunity to

20

amend his pleading as of right before being required to file a motion for summary judgment. The

21

Court’s last order gave clear direction with respect to the filing of Plaintiff’s motion for summary

22

judgment. Plaintiff has failed to comply with that order. Defendant, a representative of a public

23

entity, has a strong interest in moving the litigation forward expeditiously, especially given the

24

prior delays for the benefit of Plaintiff. The Court likewise has a strong interest in managing its

25

docket. While public policy favors disposition of cases on their merits, the Court cannot move the

26

case forward without Plaintiff’s participation and compliance with its orders. Accordingly, the

27

Court concludes that the most appropriate course at this point is to direct Plaintiff to show cause

28

why the case should not be dismissed for failure to prosecute.
2

1
2

III.

ORDER
Plaintiff is hereby ordered to file a response to this order, on or before October 31, 2014,

3

showing cause why this action should not be dismissed for failure to prosecute and failure to

4

comply with a court order.

5
6
7
8

Dated: October 14, 2014
______________________________________
BETH LABSON FREEMAN
United States District Judge

9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3