Barbara J. Valdez v. Commissioner of Social Security, No. 2:2009cv08440 - Document 26 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman, IT IS ORDERED that Judgment shall be entered dismissing the action without prejudice due to plaintiffs failure to diligently prosecute. See order for further details. (jy)
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Barbara J. Valdez v. Commissioner of Social Security Doc. 26 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 BARBARA J. VALDEZ, ) ) Plaintiff, ) ) v. ) ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. CV 09-8440-RC OPINION AND ORDER 16 17 Effective November 17, 2009, plaintiff Barbara J. Valdez, 18 proceeding pro se, filed a complaint seeking review of the Social 19 Security Administration s decision denying disability benefits to her. 20 On November 23, 2009, this Court ordered plaintiff to file a motion 21 for summary judgment within thirty (30) days after defendant filed an 22 answer to the complaint and lodged the certified administrative 23 record. 24 administrative record on June 1, 2010. 25 motion for summary judgment. Defendant filed his answer and lodged the certified Yet, plaintiff has not filed a 26 27 28 On July 20, 2010, this Court ordered plaintiff to show cause within ten days why this action should not be dismissed for her Dockets.Justia.com 1 failure to diligently prosecute by failing to file a motion for 2 summary judgment. 3 Cause and it has not been discharged. The plaintiff did not respond to the Order to Show 4 5 6 DISCUSSION This action should be dismissed for plaintiff s failure to 7 diligently prosecute and under Fed. R. Civ. P. 41(b) due to 8 plaintiff's failure to comply with a court order. 9 inherent power to achieve the orderly and expeditious disposition of This Court has the 10 cases by dismissal of actions for failure to diligently prosecute. 11 Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 12 8 L. Ed. 2d 734 (1962); Hernandez v. City of El Monte, 138 F.3d 393, 13 400 (9th Cir. 1998); In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994). 14 Failure to timely file a motion for summary judgment demonstrates the 15 plaintiff's failure to diligently prosecute this action. 16 17 District courts have the inherent power to control their dockets 18 and, [i]n the exercise of that power they may impose sanctions 19 including, where appropriate, . . . dismissal of a case. 20 Bonzelet, 963 F.2d 1258, 1260 (9th Cir.) (quoting Thompson v. Housing 21 Auth., 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829 22 (1986)), cert. denied, 506 U.S. 915 (1992). 23 Circuit upheld the district court s dismissal with prejudice of a pro 24 se litigant s complaint for failure to comply with a court order 25 requiring adherence to Fed. R. Civ. P. 10(a), which prohibits the use 26 of et al. in the caption of a complaint. 27 struck the plaintiff s second amended complaint for failure to list 28 the full names of the defendants in the caption and ordered the 2 Ferdik v. In Ferdik, the Ninth The magistrate judge 1 plaintiff to refile a conforming second amended complaint within 2 thirty days, advising the plaintiff that if he did not, the clerk 3 would enter a dismissal without further notice. 4 failed to refile his second amended complaint, the court entered 5 judgment dismissing the case. 6 Circuit affirmed the judgment, holding that the district court had 7 properly weighed the five factors necessary to determine whether to 8 dismiss a case for failure to comply with a court order: 9 public s interest in expeditious resolution of litigation; (2) the 10 court s need to manage its docket; (3) the risk of prejudice to the 11 defendants; (4) the public policy favoring disposition of cases on 12 their merits; and (5) the availability of less drastic alternatives. 13 Id. at 1260-61. After the plaintiff Ferdik, 963 F.2d 1260. The Ninth (1) the 14 15 Here, the first two factors, the public s interest in expeditious 16 resolution of litigation and the Court s need to manage its docket, 17 weigh in favor of dismissal of the action. 18 pending eight months, and, to date, plaintiff has not presented her 19 claims to the Court. 20 the defendant, also weighs in favor of dismissal. 21 Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (where plaintiff, who was 22 challenging the denial of his social security benefits, failed to 23 timely file a motion for summary judgment, the public s interest in 24 expeditious resolution of litigation, the court s need to manage its 25 docket, and the possible prejudice to the party suffering delay 26 supported the district court s dismissal of plaintiff s complaint for 27 failure to prosecute). 28 resolution of the merits, weighs against dismissing this action. This action has been Likewise, the third factor, risk of prejudice to See Oliva v. The fourth factor, the public policy favoring 3 1 Finally, with regard to the fifth factor, this Court has attempted to 2 impose less severe alternatives prior to dismissing the case.1 3 Specifically, this Court ordered the plaintiff to show cause why this 4 action should not be dismissed for her failure to file a motion for 5 summary judgment; however, the plaintiff did not respond to the Order 6 to Show Cause. 7 ineffective, dismissal is appropriate. 8 Thus, this action should be dismissed without prejudice due to 9 plaintiff s failure to diligently prosecute. As these less severe alternatives have proven Ferdik, 963 F.2d at 1262. 10 11 ORDER 12 IT IS ORDERED that Judgment shall be entered dismissing the 13 action without prejudice due to plaintiff s failure to diligently 14 prosecute. 15 16 DATE: August 6, 2010 17 18 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\09-8440.mdo 7/20/10 19 20 21 22 23 24 1 25 26 27 28 Cases involving sua sponte dismissal merit special focus on considerations relating to the fifth . . . factor. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998); see also Oliva, 958 F.2d at 274 (stating [i]n cases involving sua sponte dismissal of an action, . . . there is a closer focus on [the failure to consider less drastic alternatives and the lack of warning of imminent dismissal of the case ). 4
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