Gloria Garcia v. Michael J Astrue, No. 2:2012cv02059 - Document 25 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 GLORIA GARCIA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. CV 12-02059-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on March 15, 2012, seeking review of 19 the denial of her 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. On March 16, 2012, this 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 26 27 28 1 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 Stipulation. On April 24, 2012, the parties consented, pursuant to 28 2 U.S.C. ยง 3 Magistrate Judge. 4 2012, in which she requested that her decision be affirmed. 636(c), to proceed before the undersigned United States The Commissioner filed her Answer on October 15, 5 6 On October 31, 2012, plaintiff s then-counsel, Marc V. Kalagian, 7 filed a Notice of Motion and Motion To Withdraw as Attorney of Record 8 and Motion for Extension of Time with a supporting memorandum of points 9 and authorities and declaration by Marc V. Kalagian (collectively, the 10 Motion ). By the Motion, Mr. Kalagian sought leave to withdraw as 11 attorney of record pursuant to Local Rule 83-2.9.2.1 and permission 12 from the [C]ourt for an extension of time to permit the transfer of the 13 pleadings, case management order, and certified administrative record to 14 [plaintiff] for her action. 15 Motion, Mr. Kalagian asserted, inter alia, that [t]he relationship 16 between counsel and [plaintiff] has deteriorated to the point where no 17 meaningful dialogue can take place. (Motion at 3-4.) In support of the (Motion at 3.) 18 19 On November 5, 2012, the Court issued an Order regarding the Motion 20 ( November 5 Order ) briefly discussing the grounds on which the Motion 21 rested and setting forth the Court s tentative conclusion that the 22 Motion should be granted. 23 Court provided plaintiff with an opportunity to be heard. Plaintiff was 24 directed to submit on or before November 26, 2012, a written Opposition 25 to the Motion or, if she did not oppose the Motion, to file a Notice of 26 Dismissal, a Notice of Substitution of Attorney, or a notice advising 27 that she intended to represent herself. 28 Before granting the Motion, however, the 2 1 On November 28, 2012, the Court received a letter submitted by 2 plaintiff ( November 28 Letter ). The November 28 Letter failed to 3 comply with the November 5 Order, because although plaintiff indicated 4 that she opposed the Motion, she did not set forth any fact(s) or 5 argument in opposition to the Motion. 6 that she had an explanation for why the Motion should not be granted, 7 she did not provide it to the Court. Further, while plaintiff claimed 8 9 By Order dated November 28, 2012 ( November 28 Order ), the Court 10 granted plaintiff one final opportunity to comply with the November 5 11 Order. 12 plaintiff ( December 13 Letter ). Because plaintiff failed to serve the 13 December 13 Letter on her counsel, as directed by the Court, and on 14 counsel for defendant, in violation of Rule 5(a)(1) of the Federal Rules 15 Civil Procedure, the December 13 Letter constituted an improper ex parte 16 communication with the Court. On December 13, 2012, the Court received a letter submitted by 17 18 Notwithstanding the impropriety of this communication, on December 19 19, 2012, the Court, in an effort to move this case forward, ordered 20 that the December 13 Letter be filed and that the Clerk serve copies of 21 it on plaintiff s counsel and on counsel for defendant ( December 19 22 Order ). 23 advised the Court that she would be representing herself unless and 24 until she retained new counsel. 25 December 13 Letter did not set forth any fact(s) or arguments in 26 opposition to the Motion. 27 November 5 Order, and because plaintiff did not present any fact(s) or 28 The Court noted that, in the December 13 Letter, plaintiff Additionally, the Court found that the Accordingly, for the reasons stated in the 3 1 legal argument in opposition to the Motion, the Court granted the 2 Motion. 3 the pleadings, case management order, and certified administrative 4 record to plaintiff promptly. Additionally, plaintiff (or her new 5 counsel, if she obtained counsel) was directed to file a motion for 6 summary judgment on or before February 12, 2013. Mr. Kalagian was relieved as counsel and directed to deliver 7 8 9 Plaintiff did not comply with the December 19 Order, nor did she request additional time to do so. On March 4, 2013, the Court issued an 10 Order To Show Cause ( OSC ). 11 elapsed and nothing has been filed, in violation of the Court s December 12 19 Order, the Court directed plaintiff to show cause, by not later than 13 March 25, 2013, why plaintiff or her new counsel, if she obtained 14 counsel, did not timely file her motion for summary judgment, and why 15 the Court should not recommend that this action be dismissed for failure 16 to prosecute and failure to comply with the Court s December 19 Order. 17 (OSC 18 obligations under the OSC by filing a motion for summary judgment by 19 March 25, 2013. 20 comply with the OSC, the Court would deem such failure to be both a 21 further violation of a Court order and further evidence of a lack of 22 prosecution 23 Plaintiff was also warned that, if she failed to comply with the OSC, 24 this action [could] be dismissed pursuant to FED. R. CIV . P. 41(b) and 25 Local Rule 41-1. 26 /// 27 /// 28 at 1.) Plaintiff on After finding that the deadline has was informed that she could satisfy her Plaintiff was expressly cautioned that if she failed to plaintiff s part. (Id.; emphasis (Id.; emphasis in original.) 4 in original.) 1 It is now more than two weeks past the deadline set forth in the 2 OSC, and plaintiff has not filed a motion for summary judgment or 3 otherwise communicated with the Court in response to the OSC. 4 plaintiff s participation, this action cannot proceed. Without 5 6 DISCUSSION 7 8 Rule 41(b) of the Federal Rules of Civil Procedure grants federal 9 district courts the authority to sua sponte dismiss actions for failure 10 to prosecute. Link v. Wabash R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 11 1386, 1388 (1962). 12 prosecution is proper, a court must weigh several factors, including: 13 (1) the public s interest in expeditious resolution of litigation; (2) 14 the court s need to manage its docket; (3) the risk of prejudice to 15 defendants; (4) the availability of less drastic sanctions; and (5) the 16 public policy 17 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik v. 18 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In determining whether dismissal for lack of favoring the disposition of cases on their merits. 19 20 With respect to the first and second factors, plaintiff s delay 21 necessarily implicates both the public interest in the expeditious 22 resolution of litigation and the Court s need to efficiently manage its 23 docket. See Pagtalunan, 291 F.3d at 642; see also Yourish v. California 24 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 25 to comply with the December 19 Order and the OSC have caused this action 26 to come to a halt, thereby impermissibly allowing plaintiff, rather than 27 the Court, to control the pace of the proceedings in this case. 28 5 Plaintiff s failures Id. In 1 addition, plaintiff s conduct indicates that she does not intend to 2 litigate this matter diligently. 3 to plaintiff, has spent valuable time unsuccessfully attempting to move 4 this case along -- time which could have devoted to other cases on its 5 docket. 6 (S.D. Cal. November 18, 2011)(citing the court s expenditure of time as 7 a 8 plaintiff to continue to halt the process would frustrate not only the 9 public s interest in the expeditious resolution of litigation but also factor Significantly, the Court, in contrast See Clayton v. Astrue, 2011 U.S. Dist. LEXIS 150710, at *3 weighing in favor of dismissal under 41(b)). Allowing 10 the Court s need to manage its own docket. See Ferdik, 963 F.2d at 1262 11 (noting that [i]t is incumbent upon us to preserve the district courts 12 power to manage their dockets without being subject to the endless 13 vexatious noncompliance of litigants ). 14 factors strongly weigh in favor of dismissal. Accordingly, the first two 15 16 The third factor -- the risk of prejudice to defendants -- also 17 weighs in favor of dismissal. When, as in this case, a plaintiff 18 unreasonably delays prosecution of an action, a rebuttable presumption 19 of prejudice to defendant arises. 20 53 (9th Cir. 1994). 21 plaintiff proffers a reasonable excuse for the delay, plaintiff has 22 failed to provide any explanation, let alone a reasonable excuse, for 23 failing to comply with the December 19 Order and the OSC. 24 third 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 25 26 In addition, the fourth factor -- the availability of less drastic 27 sanctions -- strongly favors dismissal. The Ninth Circuit has set forth 28 6 1 the following three-part analysis to determine whether a district court 2 properly exercised its discretion in determining that no less harsh 3 sanction than dismissal is appropriate: (1) whether the court discussed 4 the feasibility of less drastic sanctions and why those sanctions would 5 not 6 alternate sanctions; and (3) whether the court warned the party of the 7 possibility of dismissal. Adriana Int l Corp. v. Thoeron, 913 F.2d 8 1406, 1412 (9th Cir. 1990). The Court has attempted to avoid dismissal 9 by specifically warning plaintiff that failure to comply with its OSC 10 could result in dismissal, without prejudice, for failure to prosecute. 11 Further, in recognition of plaintiff s pro se status, the Court has 12 waited several days past the deadline set forth in the OSC before 13 dismissing 14 meaningful alternatives to dismissal, however, plaintiff has failed to 15 participate in her litigation, and thus, lesser sanctions do not appear 16 to be appropriate. 17 Cir. 1986)(noting that the district court need not exhaust every 18 sanction short of dismissal before finally dismissing a case, but must 19 explore possible and meaningful alternatives ). Nevertheless, the Court 20 has determined that the instant action should be dismissed without 21 prejudice -- a sanction less drastic than dismissal with prejudice. be appropriate; this (2) case. whether Despite the the court previously Court s attempts implemented to explore See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 22 23 The fifth factor, the general policy favoring resolution of cases 24 on the merits, weighs against dismissal. 25 responsibility to move a case towards disposition at a reasonable pace 26 and to avoid dilatory and evasive tactics. See Morris v. Morgan Stanley 27 Co., 942 F.2d 648, 652 (9th Cir. 1991). 28 7 However, plaintiff has a Plaintiff has not met this 1 responsibility despite having been given ample time to do so. Under 2 these circumstances, the public policy favoring resolution of cases on 3 the merits does not outweigh plaintiff s failure to comply with this 4 Court s orders and to prosecute this action diligently. 5 6 A balancing of these factors leads to the conclusion that dismissal 7 without prejudice, pursuant to Rule 41(b) and Local Rule 41-1, is 8 warranted. See Ferdik, 963 F.2d at 1263 (dismissal is appropriate where 9 strongly supported by three factors). 10 11 CONCLUSION 12 13 Accordingly, for the reasons stated above, IT IS ORDERED that the 14 above-captioned 15 case is dismissed without prejudice for lack of prosecution. 16 17 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 18 copies of this Memorandum Opinion 19 and Order and the Judgment plaintiff and counsel for defendant. 20 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 23 DATED: April 10, 2013 24 25 26 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 27 28 8 on
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
