Webb v. Berryhill

Filing 12

ORDER DISMISSING CLAIMS WITH PREJUDICE AND DIRECTING THE PARTIES TO FILE LETTER BRIEFS REGARDING THE REMAINING CLAIM. Signed by JUDGE LESLIE E. KOBAYASHI on 01/25/2017. This Court ORDERS Defendant to file an answer to the Comp laint, as to Count IV only, by no later than February 13, 2017.In addition, this Court ORDERS the parties to submit letter briefs addressing how the remaining claim will be litigated. Plaintiff's letter brief and Defendant's letter brie f must each be three pages or less, and each party must submit his or her respective letter brief directly to this Court's chambers by no later than March 1, 2017 (eps, )CERTIFICATE OF SERVICEParticipa nts registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on January 26, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANK WEBB JR.,

)
)
Plaintiff,
)
)
vs.
)
)
THE UNITED STATES SOCIAL
)
SECURITY ADMINISTRATION,
)
)
)
Defendant.
_____________________________ )

CIVIL 16-00233 LEK-RLP

ORDER DISMISSING CLAIMS WITH PREJUDICE AND DIRECTING THE
PARTIES TO FILE LETTER BRIEFS REGARDING THE REMAINING CLAIM
On November 23, 2016, this Court issued the Order
Granting in Part and Denying in Part Defendant’s Motion to
Dismiss Plaintiff’s Complaint (“11/23/16 Order”).1
10.]

[Dkt. no.

The 11/23/16 Order dismissed without prejudice: the portion

of Count V in which pro se Plaintiff Frank Webb Jr. (“Plaintiff”)
attempts to assert a 42 U.S.C. § 405(g) appeal; and Count VI,
Plaintiff’s intentional infliction of emotional distress (“IIED”)
claim.2

This Court noted that Defendant’s Motion to Dismiss did

not address Count IV, which alleges that Defendant violated 5
U.S.C. § 552(d).

This Court dismissed the remainder of

Plaintiff’s claims with prejudice.

[11/23/16 Order at 18.]

This

1

Defendant Carolyn W. Colvin, Acting Commissioner of Social
Security (“Defendant”), filed her Motion to Dismiss Plaintiff’s
Complaint (“Motion to Dismiss”) on August 5, 2016. [Dkt. no. 7.]
2

Plaintiff filed his Complaint for Damages (“Complaint”) on
May 13, 2016.

Court allowed Plaintiff to file a motion seeking leave to file an
amended complaint as to Count IV, the remaining portion of
Count V, and Count VI.

The deadline for Plaintiff’s motion for

leave was January 19, 2017.

This Court cautioned Plaintiff that:

1) if he failed to timely file his motion seeking leave to file
an amended complaint, all of his claims in the Complaint that
this Court dismissed without prejudice in the 11/23/16 Order
would be dismissed with prejudice; and 2) even if the magistrate
judge allowed him to file an amended complaint, this Court could
still dismiss the amended IIED claim and/or the amended claim
asserting a § 405(g) appeal with prejudice, if Plaintiff failed
to cure the defects in that claim which this Court identified in
the 11/23/16 Order.

[Id. at 18-19.]

As of the date of this Order, Plaintiff has not filed a
motion for leave to file an amended complaint.

Thus, Plaintiff

has not cured the defects in either his IIED claim or his claim
attempting to assert a § 405(g) appeal that this Court identified
in the 11/23/16 Order.

This Court therefore has the discretion

to dismiss those claims with prejudice.

See Yourish v. Cal.

Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) (holding that the
plaintiff’s failure to comply with a minute order setting forth
the deadline to file the amended complaint gave the district
court the discretion to dismiss the case under Fed. R. Civ. P.

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41(b)).3

After weighing the five dismissal factors set forth in

Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011),4
this Court finds that the public interest in the expeditious
resolution of this litigation and this Court’s interest in
managing the docket strongly outweigh the policy favoring
disposition of cases on the merits.

Moreover, this Court finds

that Defendant will not be prejudiced by the dismissal of the two
claims, and there are no less drastic alternatives available at
this time.

Count VI and the remaining portion of Count V – which

this Court previously dismissed without prejudice – are HEREBY
DISMISSED WITH PREJUDICE.
In light of the instant Order, the only remaining claim
in this case is Count IV of the Complaint.

This Court ORDERS

Defendant to file an answer to the Complaint, as to Count IV

3

Fed. R. Civ. P. 41(b) states, in pertinent part: “If the
plaintiff fails to prosecute or to comply with these rules or a
court order, a defendant may move to dismiss the action or any
claim against it.”
4

The Ninth Circuit has
identified five factors that a district court must
consider before dismissing a case . . . : (1) the
public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its
docket; (3) the risk of prejudice to the other
party; (4) the public policy favoring the
disposition of cases on their merits; and (5) the
availability of less drastic sanctions.

Dreith, 648 F.3d at 788 (citations and quotation marks omitted).
3

only, by no later than February 13, 2017.
In addition, this Court ORDERS the parties to submit
letter briefs addressing how the remaining claim will be
litigated.

Plaintiff’s letter brief and Defendant’s letter brief

must each be three pages or less, and each party must submit his
or her respective letter brief directly to this Court’s chambers
by no later than March 1, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 25, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

FRANK WEBB, JR. VS. THE UNITED STATES SOCIAL SECURITY
ADMINISTRATION; CIVIL 16-00233 LEK-RLP; ORDER DISMISSING CLAIMS
WITH PREJUDICE AND DIRECTING THE REMAINING CLAIM

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