1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES C., 1 Case No. SACV 19-02077-RAO
12 Plaintiff,
13 v. MEMORANDUM OPINION AND ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 I. INTRODUCTION 19 On October 31, 2019, Plaintiff James C. (“Plaintiff”), represented by counsel, 20 filed a Complaint in this Court challenging the Commissioner’s decision to deny his 21 application for disability benefits. Dkt. No. 1. On November 19, 2019, the Court 22 issued an order regarding procedures in this action (“Order”). Dkt. No. 14. The 23 Order required Plaintiff to file a proof of service within thirty days of the date of the 24 Order. Id. Because Plaintiff failed to timely file a proof of service, the Court issued 25 an Order to Show Cause (“OSC”) on January 17, 2020 ordering Plaintiff to show 26 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 cause as to why the action should not be dismissed for failure to prosecute. Dkt. No. 2 15. 3 On January 24, 2020, Plaintiff timely responded to the Court’s OSC and stated 4 that the Commissioner had been served on December 27, 2019. Dkt. No. 16. Plaintiff 5 explained that he was “awaiting certified confirmation of service from all 6 defendants,” and requested an additional thirty days to file a proof of service. Id. 7 Having found good cause to grant Plaintiff’s request, the Court ordered Plaintiff to 8 file a proof of service on or before February 26, 2020. Dkt. No. 18. However, the 9 Court expressly warned Plaintiff, that failure to timely file a proof of service would 10 result in a recommendation that the action be dismissed.2 Id. To date, Plaintiff has 11 not filed a proof of service. 12 Given the foregoing, and for the reasons below, the Court dismisses the 13 complaint with prejudice for failure to prosecute and to follow court orders. 14 II. DISCUSSION 15 Federal Rule of Civil Procedure 41(b) grants district courts sua sponte 16 authority to dismiss actions for failure to prosecute or for failure to comply with court 17 orders. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31, 82 S. Ct. 1386, 8 L. Ed. 2d 18 734 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-63 (9th Cir. 1992). “District 19 courts have the inherent power to control their dockets and, [i]n the exercise of that 20 power they may impose sanctions including, where appropriate, . . . dismissal of a 21 case.” Ferdik, 963 F.2d at 1260 (internal quotation marks omitted) (alterations in 22 original). 23 In determining whether to dismiss an action for failure to prosecute or for 24 failure to comply with court orders, a court must weigh five factors: 25 (1) the public’s interest in expeditious resolution of litigation; 26 (2) the court’s need to manage its docket; 27 2 Subsequently, both parties consented to proceeding before a magistrate judge 28 pursuant to 28 U.S.C. § 636(c). See Dkt. Nos. 19, 20. 1 (3) the risk of prejudice to defendants/respondents; 2 (4) the availability of less drastic alternatives; and 3 (5) the public policy favoring disposition of cases on their merits. 4 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 5 Here, the first factor (the public’s interest in expeditious resolution of 6 litigation) and second factor (the Court’s need to manage its docket) strongly favor 7 dismissal. The Court attempted to avoid this outcome by providing Plaintiff 8 additional time to file a proof of service. See Dkt. No. 18. Plaintiff’s proof of service 9 was initially due on December 19, 2019. Dkt. No. 14. However, despite being 10 granted additional time and advised of the consequence for not complying with the 11 Court’s order by failing to file a proof of service, Plaintiff has still not filed a proof 12 of service. Plaintiff’s “noncompliance has caused [this] action to come to a complete 13 halt, thereby allowing [him] to control the pace of the docket rather than the Court.” 14 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (internal quotations 15 marks omitted). This inaction frustrates the public’s interest in the expeditious 16 resolution of litigation and the Court’s need to manage its docket. 17 The third factor (the risk of prejudice) requires a showing that the Plaintiff’s 18 actions impaired the Commissioner’s ability to proceed with litigation or threatened 19 to interfere with the rightful decision of the case. See Pagtalunan, 291 F.3d at 642. 20 “Limited delays and the prejudice to a defendant from the pendency of a lawsuit are 21 realities of the system that have to be accepted, provided the prejudice is not 22 compounded by ‘unreasonable’ delays.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 23 1984). However, “the risk of prejudice to the defendant is related to the plaintiff’s 24 reason for defaulting in failing to timely” act. Yourish, 191 F.3d at 991. The better 25 the reason, the less likely it is that the third factor will favor dismissal. See id. 26 (finding that the plaintiff’s “paltry excuse for his default on the judge’s order 27 indicate[d] that there was sufficient prejudice to Defendants from the delay that [the 28 third] factor also strongly favor[ed] dismissal”). The Ninth Circuit has stated that 1 “the failure to prosecute diligently is sufficient by itself to justify a dismissal, even 2 in the absence of a showing of actual prejudice to the defendant from the failure.” 3 Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976); see also In re Eisen, 31 4 F.3d 1447, 1452-53 (9th Cir. 1994) (quoting Anderson). However, while prejudice 5 is presumed for a failure to prosecute, the presumption may be rebutted, and a court 6 should consider whether there has been a showing that no actual prejudice has 7 occurred. Anderson, 542 F.2d at 524. 8 Here, Plaintiff’s failure to comply with the Court’s Order and file a proof of 9 service indicates a loss of interest in the matter. The Commissioner’s ability to 10 defend against the instant action is hampered by Plaintiff’s apparent failure to 11 participate, and the Commissioner should not be forced to litigate this action if 12 Plaintiff is not actively pursuing the matter. The Court therefore finds that the third 13 factor weighs in favor of dismissal. 14 The fourth factor (the availability of less drastic alternatives) strongly supports 15 dismissal. As noted above, the Court attempted to avoid dismissal by reminding 16 Plaintiff of the need to file a proof of service and allowing Plaintiff the opportunity 17 to file a proof of service. Dkt. Nos. 15, 18. Despite the Court’s warning that failure 18 to file a timely proof of service would result in dismissal of his case, Plaintiff has 19 failed to comply with the Court’s orders. The Court deems it imprudent to wait any 20 longer for Plaintiff to exhibit an interest in prosecuting this action with the requisite 21 amount of diligence. Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES C., 1 Case No. SACV 19-02077-RAO
12 Plaintiff,
13 v. MEMORANDUM OPINION AND ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 I. INTRODUCTION 19 On October 31, 2019, Plaintiff James C. (“Plaintiff”), represented by counsel, 20 filed a Complaint in this Court challenging the Commissioner’s decision to deny his 21 application for disability benefits. Dkt. No. 1. On November 19, 2019, the Court 22 issued an order regarding procedures in this action (“Order”). Dkt. No. 14. The 23 Order required Plaintiff to file a proof of service within thirty days of the date of the 24 Order. Id. Because Plaintiff failed to timely file a proof of service, the Court issued 25 an Order to Show Cause (“OSC”) on January 17, 2020 ordering Plaintiff to show 26 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 cause as to why the action should not be dismissed for failure to prosecute. Dkt. No. 2 15. 3 On January 24, 2020, Plaintiff timely responded to the Court’s OSC and stated 4 that the Commissioner had been served on December 27, 2019. Dkt. No. 16. Plaintiff 5 explained that he was “awaiting certified confirmation of service from all 6 defendants,” and requested an additional thirty days to file a proof of service. Id. 7 Having found good cause to grant Plaintiff’s request, the Court ordered Plaintiff to 8 file a proof of service on or before February 26, 2020. Dkt. No. 18. However, the 9 Court expressly warned Plaintiff, that failure to timely file a proof of service would 10 result in a recommendation that the action be dismissed.2 Id. To date, Plaintiff has 11 not filed a proof of service. 12 Given the foregoing, and for the reasons below, the Court dismisses the 13 complaint with prejudice for failure to prosecute and to follow court orders. 14 II. DISCUSSION 15 Federal Rule of Civil Procedure 41(b) grants district courts sua sponte 16 authority to dismiss actions for failure to prosecute or for failure to comply with court 17 orders. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31, 82 S. Ct. 1386, 8 L. Ed. 2d 18 734 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-63 (9th Cir. 1992). “District 19 courts have the inherent power to control their dockets and, [i]n the exercise of that 20 power they may impose sanctions including, where appropriate, . . . dismissal of a 21 case.” Ferdik, 963 F.2d at 1260 (internal quotation marks omitted) (alterations in 22 original). 23 In determining whether to dismiss an action for failure to prosecute or for 24 failure to comply with court orders, a court must weigh five factors: 25 (1) the public’s interest in expeditious resolution of litigation; 26 (2) the court’s need to manage its docket; 27 2 Subsequently, both parties consented to proceeding before a magistrate judge 28 pursuant to 28 U.S.C. § 636(c). See Dkt. Nos. 19, 20. 1 (3) the risk of prejudice to defendants/respondents; 2 (4) the availability of less drastic alternatives; and 3 (5) the public policy favoring disposition of cases on their merits. 4 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 5 Here, the first factor (the public’s interest in expeditious resolution of 6 litigation) and second factor (the Court’s need to manage its docket) strongly favor 7 dismissal. The Court attempted to avoid this outcome by providing Plaintiff 8 additional time to file a proof of service. See Dkt. No. 18. Plaintiff’s proof of service 9 was initially due on December 19, 2019. Dkt. No. 14. However, despite being 10 granted additional time and advised of the consequence for not complying with the 11 Court’s order by failing to file a proof of service, Plaintiff has still not filed a proof 12 of service. Plaintiff’s “noncompliance has caused [this] action to come to a complete 13 halt, thereby allowing [him] to control the pace of the docket rather than the Court.” 14 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (internal quotations 15 marks omitted). This inaction frustrates the public’s interest in the expeditious 16 resolution of litigation and the Court’s need to manage its docket. 17 The third factor (the risk of prejudice) requires a showing that the Plaintiff’s 18 actions impaired the Commissioner’s ability to proceed with litigation or threatened 19 to interfere with the rightful decision of the case. See Pagtalunan, 291 F.3d at 642. 20 “Limited delays and the prejudice to a defendant from the pendency of a lawsuit are 21 realities of the system that have to be accepted, provided the prejudice is not 22 compounded by ‘unreasonable’ delays.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 23 1984). However, “the risk of prejudice to the defendant is related to the plaintiff’s 24 reason for defaulting in failing to timely” act. Yourish, 191 F.3d at 991. The better 25 the reason, the less likely it is that the third factor will favor dismissal. See id. 26 (finding that the plaintiff’s “paltry excuse for his default on the judge’s order 27 indicate[d] that there was sufficient prejudice to Defendants from the delay that [the 28 third] factor also strongly favor[ed] dismissal”). The Ninth Circuit has stated that 1 “the failure to prosecute diligently is sufficient by itself to justify a dismissal, even 2 in the absence of a showing of actual prejudice to the defendant from the failure.” 3 Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976); see also In re Eisen, 31 4 F.3d 1447, 1452-53 (9th Cir. 1994) (quoting Anderson). However, while prejudice 5 is presumed for a failure to prosecute, the presumption may be rebutted, and a court 6 should consider whether there has been a showing that no actual prejudice has 7 occurred. Anderson, 542 F.2d at 524. 8 Here, Plaintiff’s failure to comply with the Court’s Order and file a proof of 9 service indicates a loss of interest in the matter. The Commissioner’s ability to 10 defend against the instant action is hampered by Plaintiff’s apparent failure to 11 participate, and the Commissioner should not be forced to litigate this action if 12 Plaintiff is not actively pursuing the matter. The Court therefore finds that the third 13 factor weighs in favor of dismissal. 14 The fourth factor (the availability of less drastic alternatives) strongly supports 15 dismissal. As noted above, the Court attempted to avoid dismissal by reminding 16 Plaintiff of the need to file a proof of service and allowing Plaintiff the opportunity 17 to file a proof of service. Dkt. Nos. 15, 18. Despite the Court’s warning that failure 18 to file a timely proof of service would result in dismissal of his case, Plaintiff has 19 failed to comply with the Court’s orders. The Court deems it imprudent to wait any 20 longer for Plaintiff to exhibit an interest in prosecuting this action with the requisite 21 amount of diligence. Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (a 22 district court “need not exhaust every sanction short of dismissal 23 before . . . dismissing a case”). 24 The fifth factor (the public policy favoring disposition on the merits) weighs 25 against dismissal, as it almost inevitably will when an action is dismissed without 26 reaching the merits. Pagtalunan, 291 F.3d at 643. 27 /// 28 /// 1 In sum, four out of the five factors support dismissal. See Yourish, 191 F.3d 2 || at 990 (dismissal is appropriate where three of the five factors strongly support 3 || dismissal). 4 A dismissal pursuant to Federal Rule of Civil Procedure 41(b) operates as an 5 || adjudication on the merits unless one of three exceptions applies: if the court lacks 6 || jurisdiction, venue is improper, or joinder of a required party has not occurred. Here, 7 || the Court is dismissing for failure to prosecute and to obey court orders, and thus 8 || none of Rule 41(b)’s exceptions applies. Accordingly, dismissal will be with 9 || prejudice to refiling of a new action in federal court based on the same allegations. 10 || See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (dismissal under Rule 11 || 41(b) is an adjudication on the merits unless one of the rule’s exceptions applies). 12 | I. CONCLUSION 13 It is ORDERED that Judgment shall be entered dismissing the Complaint with 14 || prejudice for failure to prosecute and to comply with Court orders. Rayetis a. 16 || DATED: February 28, 2020 17 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE
19 20 NOTICE | EESEOREREOS ANY UNBENDER BCEERGATION □□ WESTLAW,
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