Melton v. Commissioner of Social Security

W.D. Washington

Melton v. Commissioner of Social Security

DecidedFebruary 22, 2021

Docket2:20-cv-00781

StatusUnknown

This text of Melton v. Commissioner of Social Security (Melton v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Melton v. Commissioner of Social Security, (W.D. Wash. 2021).

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 JAMES DAWARD MELTON, 9 Plaintiff, Case No. C20-781-MLP 10 v. ORDER TO SHOW CAUSE 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13

14 On December 9, 2020, Defendant filed its Answer in this matter. (Dkt. # 14.) On that 15 same day, this Court issued an Order Setting Briefing Schedule. (Dkt. # 15.) Pursuant to the 16 Court’s Order, Plaintiff’s opening brief was due by January 6, 2021, Defendant’s response brief 17 was due by February 3, 2021, and Plaintiff’s reply brief was due on February 17, 2021. (Dkt. 18 # 15). To date, neither party has filed a brief, an extension request, or any form of update on this 19 case with the Court. 20 It is within the inherent power and discretion of the court to dismiss a civil case for lack 21 of prosecution. Fed. R. Civ. P. 41(b); see McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) 22 (failure to prosecute must be unreasonable in order to support dismissal); Ash v. Cvetkov, 739 23 F.2d 493, 496 (9th Cir. 1984). The Court weighs five factors to determine if involuntary 1 dismissal for lack of prosecution is proper. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). Specifically, the Court 3 considers: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 4 manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring

5 disposition of cases on their merits; and (5) the availability of less drastic alternatives. Id. 6 Dismissal is proper where at least four factors support dismissal or where at least three factors 7 “strongly” support dismissal. Beck v. Pike, 2017 WL 530354, at *5 (W.D. Wash. Feb. 9, 2017) 8 (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). 9 Accordingly, Plaintiff is ORDERED to show cause by March 1, 2021, why the Court 10 should not dismiss the complaint in this matter for failure to prosecute. Absent a timely response 11 to this Order, this action will be dismissed without prejudice. 12 13 Dated this 22nd day of February, 2021. 14 A 15 MICHELLE L. PETERSON United States Magistrate Judge 16 17

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 JAMES DAWARD MELTON, 9 Plaintiff, Case No. C20-781-MLP 10 v. ORDER TO SHOW CAUSE 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13

14 On December 9, 2020, Defendant filed its Answer in this matter. (Dkt. # 14.) On that 15 same day, this Court issued an Order Setting Briefing Schedule. (Dkt. # 15.) Pursuant to the 16 Court’s Order, Plaintiff’s opening brief was due by January 6, 2021, Defendant’s response brief 17 was due by February 3, 2021, and Plaintiff’s reply brief was due on February 17, 2021. (Dkt. 18 # 15). To date, neither party has filed a brief, an extension request, or any form of update on this 19 case with the Court. 20 It is within the inherent power and discretion of the court to dismiss a civil case for lack 21 of prosecution. Fed. R. Civ. P. 41(b); see McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) 22 (failure to prosecute must be unreasonable in order to support dismissal); Ash v. Cvetkov, 739 23 F.2d 493, 496 (9th Cir. 1984). The Court weighs five factors to determine if involuntary 1 dismissal for lack of prosecution is proper. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). Specifically, the Court 3 considers: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 4 manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring

5 disposition of cases on their merits; and (5) the availability of less drastic alternatives. Id. 6 Dismissal is proper where at least four factors support dismissal or where at least three factors 7 “strongly” support dismissal. Beck v. Pike, 2017 WL 530354, at *5 (W.D. Wash. Feb. 9, 2017) 8 (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). 9 Accordingly, Plaintiff is ORDERED to show cause by March 1, 2021, why the Court 10 should not dismiss the complaint in this matter for failure to prosecute. Absent a timely response 11 to this Order, this action will be dismissed without prejudice. 12 13 Dated this 22nd day of February, 2021. 14 A 15 MICHELLE L. PETERSON United States Magistrate Judge 16 17

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