Venessa H. Gallarzo v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: January 25, 2022
• Docket: 2:20-cv-09296
• Status: Unknown

Opinion

Case 2:20-cv-09296-JGB-JPR Document 26 Filed 01/25/22 Page 1 of 3 Page ID #:913

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VENESSA H. GALLARZO, ) Case No. CV 20-9296-JGB (JPR) ) 12 Plaintiff, ) ) ORDER DISMISSING ACTION FOR 13 v. ) FAILURE TO PROSECUTE ) 14 KILOLO KIJAKAZI, Acting ) Commissioner of Social ) 15 Security, ) ) 16 Defendant. ) ) 17 On October 9, 2020, Plaintiff, proceeding pro se, filed a 18 Complaint challenging the denial of Social Security benefits. 19 Defendant filed her Answer on September 7, 2021. Under the terms 20 of the Court’s November 6, 2020 case-management order, which 21 advised Plaintiff of the availability of help from the pro se 22 clinics, Plaintiff’s motion for judgment on the pleadings was due 23 October 12, 2021. When she neither filed the motion nor 24 requested an extension of time to do so, the Magistrate Judge 25 ordered her to show cause for the lack of prosecution, giving her 26 10 days to either do so or file her motion. The Magistrate Judge 27 warned Plaintiff that if she did not timely respond to the order 28 1 Case 2:20-cv-09296-JGB-JPR Document 26 Filed 01/25/22 Page 2 of 3 Page ID #:914

1 in some way, her lawsuit would likely be dismissed. The deadline 2 for her to respond was December 20, and to date she has neither 3 done so nor requested an extension of time. 4 Courts may dismiss lawsuits that are not diligently 5 prosecuted. See Link v. Wabash R.R., 370 U.S. 626, 629-30 6 (1962); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per 7 curiam). In determining whether to dismiss a plaintiff’s action 8 for failure to prosecute, a court must consider “(1) the public’s 9 interest in expeditious resolution of litigation; (2) the court’s 10 need to manage its docket; (3) the risk of prejudice to the 11 defendants; (4) the public policy favoring disposition of cases 12 on their merits[;] and (5) the availability of less drastic 13 sanctions.” Carey, 856 F.2d at 1440 (citation omitted). 14 Unreasonable delay creates a rebuttable presumption of prejudice 15 to the defendant that can be overcome only with an affirmative 16 showing of just cause by the plaintiff. See In re Eisen, 31 F.3d 17 1447, 1452-53 (9th Cir. 1994). 18 Here, the first, second, third, and fifth Carey factors 19 militate in favor of dismissal. In particular, Plaintiff has not 20 even attempted to rebut the presumption of prejudice to 21 Defendant. No less drastic sanction is available, as Plaintiff 22 has stopped communicating with the Court, even after it warned 23 her that the lawsuit might be dismissed as a result. The Court 24 is mindful of the pandemic and the difficulties it has caused, 25 but it cannot simply leave hanging on its docket indefinitely a 26 case in which Plaintiff has failed to comply with court orders in 27 the hope that she will someday choose to respond. This lawsuit 28 has already been pending for nearly a year and a half. 2 ase 2:20-cv-09296-JGB-JPR Document 26 Filed 01/25/22 Page 3of3 Page ID#:91

1 Although the fourth Carey factor weighs against dismissal — 2i}as it does in every case — the other factors together outweigh 3} the public’s interest in disposing of the case on its merits. 4]| See Long v. Astrue, 416 F. App’x 633, 634 (9th Cir. 2011) 5 || (upholding dismissal of Social Security action for failure to 6 ll prosecute when plaintiff had not served summons and did not show 7 || cause for his failure to do so). 8 Plaintiff has failed to prosecute this action without 9 demonstrating good cause, and it must therefore be DISMISSED. 10 || LET JUDGMENT BE ENTERED ACCORDINGLY. SAeL —— 12 |] DATED: January 25, 2022 —_ Pe a JEAUS G. BERNAS 13 Y.g. DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28