Michael Raby v. Commissioner of Social Security

Opinion

1 2 3 JS-6 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL RABY, Case No. 2:19-cv-08689 AFM 12 Plaintiff, 13 v. ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 On October 9, 2019, plaintiff pro se filed a Complaint seeking review of the 19 Commissioner’s decision denying his application for benefits under the Social 20 Security Act. He subsequently was granted leave to proceed in forma pauperis. The 21 parties have consented to the jurisdiction of the undersigned Magistrate Judge under 22 28 U.S.C. § 636(c). On July 30, 2020, Defendant filed his Answer to Complaint and 23 the Certified Administrative Record. (ECF Nos. 18, 19.) According to the Court’s 24 October 11, 2019 case management order, plaintiff’s Memorandum in Support of 25 Complaint (“Memorandum”) was due on September 3, 2020. A review of the docket 26 indicated plaintiff did not file the Memorandum. 27 On September 28, 2020, the Court issued an Order to Show Cause requiring 28 plaintiff to show cause why this action should not be dismissed for failure to 1 prosecute. The Order provided that plaintiff’s filing of his Memorandum by 2 October 26, 2020 would discharge the show cause order. (ECF No. 21.) A review 3 of the docket as of the date of this Order indicates that plaintiff has not responded to 4 the Order to Show Cause or filed his Memorandum in Support of Complaint. 5 Assuming that plaintiff wished to continue to pursue this action, he was 6 obligated to comply with the Court’s orders. Plaintiff has not filed a response to the 7 Order to Show Cause, has not filed his Memorandum in Support of Complaint, and 8 has not requested an enlargement of time to do so. The Court possesses the inherent 9 power to dismiss, sua sponte, for lack of prosecution any action which has remained 10 dormant because of the inaction or dilatoriness of the parties seeking relief. Link v. 11 Wabash Railroad Co., 370 U.S. 626, 630-31 (1962). The exercise of such power is 12 recognized as necessary to achieve the orderly and expeditious disposition of cases. 13 Id. The Local Rules of this Court further implement the policy of dismissing an 14 action in which the plaintiff has failed to prosecute diligently. Civil Local Rule 41. 15 The Ninth Circuit has cited the following factors as relevant to the Court’s 16 determination whether to dismiss an action for failure to prosecute: “(1) the public’s 17 interest in expeditious resolution of litigation; (2) the court’s need to manage its 18 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 19 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” 20 Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 21 The first two factors from Carey – public interest in expeditious resolution of 22 litigation and the need to manage the Court’s docket – weigh in favor of dismissal. 23 Plaintiff has failed to comply with the Court’s orders and failed to file essential 24 documents, despite being warned of the consequences and granted sufficient time in 25 which to do so. Plaintiff’s conduct preventsthe Courtfrommovingthis case towards 26 dispositionand indicates that plaintiff does not intend to litigate this action diligently. 27 The third factor – prejudice to defendants – also weighs in favor of dismissal. 28 A rebuttable presumption of prejudice to defendants arises when a plaintiff 1 || unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452- 2 | 53 (9th Cir. 1994). Nothing suggests that such a presumption is unwarranted in this 3 || case. 4 The fourth factor — public policy in favor of deciding cases on their merits — 5 | ordinarily weighs against dismissal. However, it is plaintiff's responsibility to move 6 || towards disposition at a reasonable pace, to comply with the local rules, and to avoid 7 || dilatory and evasive tactics. Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 8 || 1991). Plaintiff has not discharged this responsibility despite having been granted 9 || more than sufficient time in which to do so. In these circumstances, the public policy 10 || favoring resolution of disputes on the merits does not outweigh plaintiff's failure to 11 || comply with a court order. 12 The fifth factor — availability of less drastic sanctions — also weighs in favor of 13 | dismissal. The Court cannot move the case towards disposition without plaintiff’ s 14 || compliance with court orders and participation in its litigation. Moreover, it does not 15 || appear to the Court that there are any less drastic sanctions available for the Court to 16 || impose. Plaintiff has shown that he is either unwilling or unable to comply with court 17 || orders by filing responsive documents. 18 IT THEREFORE IS ORDERED that plaintiff's Complaint is dismissed 19 || without prejudice for failure to prosecute. 20 21 || DATED: 11/12/2020 (dy Wi 22 23 ALEXANDER F. MacKINNON 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28