Webb v. Berryhill

Filing 18

ORDER DISMISSING REMAINING CLAIM WITH PREJUDICE AND DIRECTING THAT THE CASE BE CLOSED. Signed by JUDGE LESLIE E. KOBAYASHI on 06/14/2017. (eps, )CERTIFICATE OF SERVICEParticipants 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 June 15, 2017

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

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Director of Social Security, )
)
Defendant.
)
_____________________________ )

CIVIL 16-00233 LEK-RLP

ORDER DISMISSING REMAINING CLAIM WITH PREJUDICE
AND DIRECTING THAT THE CASE BE CLOSED
Pro se Plaintiff Frank Webb Jr. (“Plaintiff”) filed his
Complaint for Damages (“Complaint”) on May 13, 2016.
1.]

[Dkt. no.

On May 11, 2017, this Court issued the Order to Show Cause

Why the Case Should Not Be Dismissed for Failure to Prosecute
(“OSC”).

[Dkt. no. 17.]

The OSC noted that the only claim

remaining in this case is Count IV, which alleges that Defendant
violated 5 U.S.C. § 552(d).

This Court ordered Plaintiff to show

cause why Count IV should not be dismissed with prejudice for
failure to prosecute and for failure to comply with an order that
this Court issued on January 25, 2017.

The deadline for

Plaintiff to file his response to the OSC was June 2, 2017.
at 2.]

[OSC

This Court cautioned Plaintiff that, if he failed to

respond to the OSC, this Court would dismiss the case with
prejudice and order that the case file be closed.

[Id. at 3.]

Plaintiff did not file a response to the OSC.

For the

reasons stated in the OSC, this Court FINDS that Plaintiff has
abandoned this case.

Because Plaintiff has abandoned this case

and failed to comply with this Court’s orders, this Court has the
discretion to dismiss the Complaint 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. 41(b)).1

After weighing the five dismissal factors set

forth in Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir.
2011),2 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, Defendant

1

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.”
2

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).
2

Nancy A. Berryhill, Acting Director of Social Security
(“Defendant”), will not be prejudiced by dismissal because there
have been minimal filings and proceedings regarding Count IV, and
there are no less drastic alternatives available at this time.
Count IV, which was the only claim remaining in
Plaintiff’s Complaint, is HEREBY DISMISSED WITH PREJUDICE.

There

being no remaining claims in this case, this Court DIRECTS the
Clerk’s Office to enter judgment in favor of Defendant and close
the case immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 14, 2017.

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

FRANK WEBB JR. VS. NANCY A. BERRYHILL, ACTING DIRECTOR OF SOCIAL
SECURITY; CIVIL 16-00233 LEK-RLP; ORDER DISMISSING REMAINING
CLAIM WITH PREJUDICE AND DIRECTING THAT THE CASE BE CLOSED

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