Larry Montgomery v. Michael J Astrue, No. 2:2011cv08631 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 LARRY MONTGOMERY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 11-08631-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on October 24, 2011, seeking review of 19 the denial of his application for a period of disability, disability 20 insurance benefits, and supplemental security income and an order 21 reversing the Commissioner s decision or, alternatively, remanding this 22 matter for a new hearing or new proceedings. 23 Court issued its Case Management Order, setting forth, inter alia, a 24 schedule for the preparation and filing of pleadings, including a Joint 25 Stipulation. 26 28 U.S.C. ยง 636(c), to proceed before the undersigned United States 27 Magistrate Judge. 28 which he requested that his decision be affirmed. On October 26, 2011, this On December 19, 2011, the parties consented, pursuant to The Commissioner filed his Answer on May 2, 2012, in 1 On June 11, 2012, plaintiff s then-counsel, Denise Bourgeois Haley, 2 filed a Motion To Withdraw as Attorney of Record ( Motion ). By the 3 Motion, Ms. Haley sought leave to withdraw pursuant to Local Rules 83- 4 2.9.2.1. In support of the Motion, Ms. Haley asserted, inter alia, that 5 she has diligently researched the issues and formed the opinion that 6 [s]he cannot pursue this matter on behalf of [plaintiff]. 7 [plaintiff s] counsel s further opinion that pursuit of this action 8 could subject plaintiff and counsel to sanctions under Rule 11. 9 (Motion at 4.) It is 10 11 In a June 14, 2012 Minute Order (the June 14 Order ), this Court 12 granted the Motion and directed plaintiff either to file a notice of 13 dismissal on or before June 28, 2012, or to file a motion for summary 14 judgment on or before July 31, 2012. 15 June 14 Order mailed to plaintiff was returned to the Clerk s Office by 16 the 17 nondelivery of the document: 18 KNOWN[;] UNABLE TO FORWARD. 19 envelope.) U.S. Postal Service, with the On July 17, 2012, the copy of the following explanation for the RETURN TO SENDER[;] ATTEMPTED - NOT (See Docket No. 16 at 1, copy of returned 20 21 In an August 3, 2012 Minute Order (the August 3 Order ), the Court 22 -- after receiving the returned copy of the June 14 Order and finding 23 that plaintiff had neither filed a change of address, in accordance with 24 Local Rule 41-6, nor complied with the deadlines set forth in the June 25 14 Order -- ordered plaintiff to file and serve, by not later than 26 August 17, 2012, a notice of change of address along with either a 27 notice of dismissal or a motion for summary judgment. 28 2 Plaintiff was 1 expressly cautioned that, should he fail to comply with the August 3 2 Order, the Could will presume that plaintiff no longer wishes to 3 pursue this action and may dismiss this case, without prejudice, for 4 failure to prosecute. 5 original.) (August 3 Order at pp. 1-2; emphasis in 6 7 On August 10, 2012, the copy of the August 3 Order mailed to 8 plaintiff was returned to the Clerk s Office by the U.S. Postal Service, 9 with the following explanation for the nondelivery of the document: 10 Return to Sender and ATTEMPTED - NOT KNOWN. (See Docket No. 18 at 11 1, copy of returned envelope.) 12 notice of change of address, a notice of dismissal, a motion for summary 13 judgment, or otherwise communicated with the Court in response to either 14 the June 14 Order or August 3 Order. Further, plaintiff has not filed a 15 16 DISCUSSION 17 18 Rule 41(b) of the Federal Rules of Civil Procedure grants federal 19 district courts the authority to sua sponte dismiss actions for failure 20 to prosecute. 21 1386, 1388 (1962). 22 prosecution is proper, a court must weigh several factors, including: 23 (1) the public s interest in expeditious resolution of litigation; (2) 24 the court s need to manage its docket; (3) the risk of prejudice to 25 defendants; (4) the availability of less drastic sanctions; and (5) the 26 public policy favoring the disposition of cases on their merits. 27 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik v. 28 Link v. Wabash R. Co., 370 U.S. 626, 629-30, 82 S. Ct. In determining whether dismissal for lack of 3 1 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). 2 3 With respect to the first and second factors, plaintiff s delay 4 necessarily implicates both the public interest in the expeditious 5 resolution of litigation and the Court s need to efficiently manage its 6 docket. See Pagtalunan, 291 F.3d at 642; see also Yourish v. California 7 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 8 to comply with the June 14 Order and August 3 Order, and his failure to 9 provide the Court with a valid address, have caused this action to come 10 to a halt, thereby impermissibly allowing plaintiff, rather than the 11 Court, to control the pace of the proceedings in this case. 12 addition, plaintiff s conduct indicates that he does not intend to 13 litigate this matter diligently. 14 to plaintiff, has spent valuable time to move this case along -- time 15 which it could have devoted to other cases on its docket. 16 v. Astrue, 2011 U.S. Dist. LEXIS 150710, at *3 (S.D. Cal. November 18, 17 2011)(citing the court s expenditure of time as a factor weighing in 18 favor of dismissal under 41(b)). Allowing plaintiff to continue to halt 19 the process would frustrate not only the public s interest in the 20 expeditious resolution of litigation but also the Court s need to manage 21 its own docket. 22 incumbent upon us to preserve the district courts power to manage their 23 dockets without being subject to the endless vexatious noncompliance of 24 litigants ). Accordingly, the first two factors strongly weigh in favor 25 of dismissal. Plaintiff s failures Id. In Significantly, the Court, in contrast See Clayton See Ferdik, 963 F.2d at 1262 (noting that [i]t is 26 27 28 The third factor -- the risk of prejudice to defendants -- also 4 1 weighs in favor of dismissal. When, as in this case, a plaintiff 2 unreasonably delays prosecution of an action, a rebuttable presumption 3 of prejudice to defendant arises. 4 53 (9th Cir. 1994). 5 plaintiff proffers a reasonable excuse for the delay, plaintiff has 6 failed to provide any explanation, let alone a reasonable excuse, for 7 failing to comply with the June 14 and August 3 Orders. 8 factor does not support allowing this stalled case to continue. See In re Eisen, 31 F.3d 1447, 1452- Although that presumption may be rebutted when a Thus, the third 9 10 In addition, the fourth factor -- the availability of less drastic 11 sanctions -- strongly favors dismissal. The Ninth Circuit has set forth 12 the following three-part analysis to determine whether a district court 13 properly exercised its discretion in determining that no less harsh 14 sanction than dismissal is appropriate: (1) whether the court discussed 15 the feasibility of less drastic sanctions and why those sanctions would 16 not 17 alternate sanctions; and (3) whether the court warned the party of the 18 possibility of dismissal. Adriana Int l Corp. v. Thoeron, 913 F.2d 19 1406, 1412 (9th Cir. 1990). The Court has attempted to avoid dismissal 20 by specifically warning plaintiff that failure to comply with its 21 August 3 Order may result in dismissal, without prejudice, for failure 22 to prosecute. Further, in recognition of plaintiff s pro se status, the 23 Court has waited several days past the deadline set forth in the 24 August 3 Order before dismissing this case. 25 attempts to explore meaningful alternatives to dismissal, however, 26 plaintiff has failed to participate in his litigation, and thus, lesser 27 sanctions do not appear to be appropriate. 28 be appropriate; (2) whether the 5 court previously implemented Despite the Court s See Henderson v. Duncan, 779 1 F.2d 1421, 1424 (9th Cir. 1986)(noting that the district court need not 2 exhaust every sanction short of dismissal before finally dismissing a 3 case, 4 Nevertheless, the Court has determined that the instant action should be 5 dismissed without prejudice -- a sanction which is less drastic than 6 dismissal with prejudice. but must explore possible and meaningful alternatives ). 7 8 9 The fifth factor, the general policy favoring resolution of cases on the merits, weighs against dismissal. However, plaintiff has a 10 responsibility to move a case towards disposition at a reasonable pace 11 and to avoid dilatory and evasive tactics. See Morris v. Morgan Stanley 12 Co., 942 F.2d 648, 652 (9th Cir. 1991). 13 responsibility despite having been given ample time to do so. 14 these 15 communicate with plaintiff, the public policy favoring resolution of 16 cases on the merits does not outweigh plaintiff s failure to comply with 17 this Court s orders and to prosecute this action diligently. circumstances, and given the Plaintiff has not met this Court s present Under inability to 18 19 A balancing of these factors leads to the conclusion that dismissal 20 without prejudice, pursuant to Rule 41(b) and Local Rule 41-1, is 21 warranted. See Ferdik, 963 F.2d at 1263 (dismissal is appropriate where 22 strongly supported by three factors). 23 24 CONCLUSION 25 26 27 28 Accordingly, for the reasons stated above, IT IS ORDERED that the above-captioned case is dismissed 6 without prejudice for lack of 1 prosecution.1 2 3 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 4 copies of this Memorandum Opinion 5 and Order and the Judgment on plaintiff and counsel for defendant. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: August 22, 2012 10 11 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 26 27 28 Dismissal is not only under Rule 41(b), but also pursuant to Local Rule 41-6, given that more than 15 days have passed since the return of the June 14 Order as undeliverable and plaintiff s failure to provide notice of his correct address. 7
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