Holly J. Rhines v. Michael J. Astrue
Filing
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ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE by Magistrate Judge Frederick F. Mumm: (see attached) IT THEREFORE IS ORDERED THAT Judgment be entered dismissing this action without prejudice. (jm)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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HOLLY J. RHINES,
Plaintiff,
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v.
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MICHAEL J. ASTRUE,
Commissioner of Social Security,
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Defendant.
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Case No. CV 10-6843 FFM
ORDER DISMISSING COMPLAINT
WITHOUT PREJUDICE
Plaintiff filed the Complaint herein on September 22, 2010. Thereafter plaintiff
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and defendant consented to the jurisdiction of the undersigned United States
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Magistrate Judge. 28 U.S.C. § 636(c). On May 23, 2011, the Court granted the
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motion of plaintiff’s counsel to withdraw as attorney of record. The Court thereafter,
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in response to a request by defendant, amended its Case Management Order to delete
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the requirement of a joint stipulation and to require cross motions for summary
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judgment. Pursuant to the amended order, plaintiff’s motion for summary judgment
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was due on or before 60 days after defendant filed his answer and lodged the
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administrative record. Defendant filed his answer and lodged the administrative
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record on June 2, 2011. Therefore, the last day for plaintiff to file her motion for
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summary judgment was August 1, 2011.
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As of August 22, 2011, plaintiff had neither filed a motion for summary
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judgment nor requested additional time within which to do so. Therefore, the Court
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issued an Order to Show Cause ordering plaintiff to show cause why the action should
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not be dismissed for failure to prosecute. Plaintiff has not responded to the Order to
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Show Cause.
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DISCUSSION
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This action should be dismissed without prejudice. Plaintiff has not filed a
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response to the Order to Show Cause or a motion for summary judgment in
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compliance with the Court’s Order, and has not requested an extension of time to do
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either. The Court has inherent power to achieve the orderly and expeditious
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disposition of cases by dismissing actions for failure to prosecute and/or failure to
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comply with a Court order. See Link v. Wabash R.R., 370 U.S. 626, 629-30, 82 S.Ct.
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1386, 8 L. Ed. 2d 734 (1962); Fed. R. Civ. P. 41(b).
In Carey v. King, 856 F.2d 1439 (9th Cir. 1988), the Ninth Circuit cited the
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following factors as relevant to the Court’s determination whether to dismiss an action
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for failure to prosecute: “(1) the public’s interest in expeditious resolution of
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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
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defendants; (4) the public policy favoring disposition of cases on their merits, and (5)
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the availability of less drastic sanctions.” See Carey, 856 F.2d at 1440.
Here, the Court finds that the first, second and fifth Carey factors militate in
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favor of dismissal. As a result of plaintiff’s failure to comply with this Court’s orders,
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this action has been and will continue to be stalemated. Moreover, it does not appear
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to the Court that there are any less drastic sanctions available for the Court to impose.
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While the Court finds that the third and fourth Carey factors do not militate in favor of
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dismissal, the Court has concluded that the other three factors in this instance
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outweigh the third and fourth factors.
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IT THEREFORE IS ORDERED THAT Judgment be entered dismissing this
action without prejudice.
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DATED: September 15, 2011
/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge
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