Xiangbing Liu v. Commissioner of Social Security

• Court: District Court, C.D. California
• Decided: August 31, 2020
• Docket: 2:19-cv-09435
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 XIANGBING LIU, ) Case No. CV 19-9435-CAS (JPR) ) 12 Plaintiff, ) ) ORDER DISMISSING ACTION FOR 13 v. ) FAILURE TO PROSECUTE ) 14 COMMISSIONER OF SOCIAL ) SECURITY, ) 15 ) Defendant. ) 16 ) ) 17 On November 1, 2019, Plaintiff, proceeding pro se, filed a 18 Complaint challenging the denial of Social Security benefits. 19 Under the terms of the Court’s November 7, 2019 case-management 20 order, which advised Plaintiff of the availability of help from 21 the pro se clinics, Plaintiff’s motion for judgment on the 22 pleadings was due March 30, 2020. When Plaintiff neither filed 23 the motion nor requested an extension of time to do so, the 24 Magistrate Judge sua sponte continued the deadline by 60 days 25 given the COVID-19 pandemic and national emergency. 26 When Plaintiff again filed nothing by the June 2 deadline, 27 the Magistrate Judge again sua sponte continued the motion 28 1 1 deadline by 60 days. But this time she advised Plaintiff of the 2 need to “request an extension of time before that deadline 3 expires if the motion cannot be filed on time,” and she warned 4 Plaintiff that if nothing was timely filed, “the lawsuit may be 5 dismissed for failure to prosecute.” The motion or a request for 6 an extension of time was due on August 11, and still nothing has 7 been filed. Indeed, Plaintiff has not communicated with the 8 Court in nine months. 9 Courts may dismiss lawsuits that are not diligently 10 prosecuted. See Link v. Wabash R.R., 370 U.S. 626, 629-30 11 (1962); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per 12 curiam). In determining whether to dismiss a plaintiff’s action 13 for failure to prosecute, a court must consider “(1) the public’s 14 interest in expeditious resolution of litigation; (2) the court’s 15 need to manage its docket; (3) the risk of prejudice to the 16 defendants; (4) the public policy favoring disposition of cases 17 on their merits[;] and (5) the availability of less drastic 18 sanctions.” Carey, 856 F.2d at 1440 (citation omitted). 19 Unreasonable delay creates a rebuttable presumption of prejudice 20 to the defendant that can be overcome only with an affirmative 21 showing of just cause by the plaintiff. See In re Eisen, 31 F.3d 22 1447, 1452-53 (9th Cir. 1994). 23 Here, the first, second, third, and fifth Carey factors 24 militate in favor of dismissal. In particular, Plaintiff has not 25 even attempted to rebut the presumption of prejudice to 26 Defendant. No less drastic sanction is available, as Plaintiff 27 has stopped communicating with the Court, even after it warned 28 that the lawsuit might be dismissed as a result. The Court is 2 1 || mindful of the pandemic and the difficulties it has caused, but cannot simply leave hanging on its docket indefinitely a case 3 || in which Plaintiff has failed to comply with even the most simple of orders for more than half a year. It has already sua sponte 5 | granted four months of extensions but declines to grant another. 6 || Although the fourth factor weighs against dismissal — as it does 7 || in every case — the other factors together outweigh the public’s 8 | interest in disposing of the case on its merits. See Long v. Astrue, 416 F. App’x 633, 634 (9th Cir. 2011) (upholding 10 || dismissal of Social Security action for failure to prosecute when 11 |) plaintiff had not served summons and did not show cause for his 12 | failure to do so). 13 Plaintiff has failed to prosecute this action without 14 |] demonstrating good cause and despite numerous sua sponte 15 | extensions, and it must therefore be DISMISSED. LET JUDGMENT BE 16 || ENTERED ACCORDINGLY. 17 Ao Ved 4 bayhe 18 | parep: August 31, 2020 CHRISTINA A. SNYDER 19 U.S. DISTRICT JUDGE 20 21 22 23 24 25 26 27 28