Timothy Keyhea v. Michael J Astrue, No. 5:2013cv00518 - Document 9 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER DISMISSING ACTION by Judge Beverly Reid O'Connell. It is ORDERED that this action be dismissed for lack of prosecution. See memorandum for details. (hr)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 TIMOTHY KEYHEA, ) Case No. EDCV 13-518 BRO(JC) ) Plaintiff, ) MEMORANDUM OPINION AND ) ORDER DISMISSING ACTION v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security ) ) ) Defendant. ) _______________________________ ) On March 29, 2013, plaintiff Timothy Keyhea who is proceeding pro se, filed 19 a Complaint for Review of Social Security Decision ( Complaint ). 20 On April 2, 2013, the Court issued a Case Management Order ( April 21 Order ) advising plaintiff that pursuant to Rule 4(m) of the Federal Rules of Civil 22 Procedure, his time to effect service of the summons and complaint would expire 23 within 120 days of the filing of the Complaint, i.e., on July 29, 2013. The April 24 Order directed plaintiff to file proofs of service within the 120-day period, and 25 expressly afforded plaintiff notice that his failure to effectuate proper service by 26 July 29, 2013, may result in dismissal of the action without prejudice by reason of 27 plaintiff s failure to prosecute, unless plaintiff could show good cause for extending 28 the deadline. Plaintiff did not timely file any proofs of service. 1 1 Accordingly, on August 6, 2013, this Court issued an Order to Show Cause 2 Re Dismissal for Failure to Prosecute ( OSC ) directing plaintiff, by no later than 3 August 20, 2013, to show cause in writing, if there be any, why service was not 4 made on defendant by July 29, 2013, and why this case should not be dismissed 5 without prejudice for failure to effectuate service, lack of prosecution, and/or failure 6 to comply with the April Order. The OSC expressly cautioned plaintiff that the 7 failure timely to respond to the OSC or to show cause, may result in the dismissal of 8 this action without prejudice for failure to effectuate service, lack of prosecution, 9 and/or failure to comply with the April Order. To date, plaintiff has failed to 10 effectuate service on the defendant, failed to file any proof of service, failed to 11 respond to the OSC, and failed to show any good cause therefor. 12 Rule 4(m) of the Federal Rules of Civil Procedure provides in pertinent part: 13 If a defendant is not served within 120 days after the complaint is filed, 14 the court on motion or on its own after notice to the plaintiff must 15 dismiss the action without prejudice against that defendant or order 16 that service be effected within a specified time. But if the plaintiff 17 shows good cause for the failure, the court must extend the time for 18 service for an appropriate period. . . . 19 Fed. R. Civ. P. 4(m). 20 To show good cause for a delay in effecting service, a plaintiff generally 21 must show that service had been attempted but not completed, that plaintiff was 22 confused about the requirements of service, or that plaintiff was prevented from 23 serving defendants by factors beyond his control. Vinegar v. United States 24 Marshals Service, 1996 WL 227860, at *4 (S.D. Cal. Mar. 27, 1996) (citation and 25 internal quotations omitted). Pro se status does not excuse a litigant s complete 26 failure to effect service. See Systems Signs Supplies v. United States Dept. of 27 Justice, 903 F.2d 1011, 1013 (5th Cir. 1990). Here, plaintiff has failed to effectuate 28 service within 120 days of filing the Complaint, and has been afforded notice that 2 1 his failure timely to effectuate service or to show good cause for failing to do so 2 may result in dismissal of this action. To date, plaintiff has not shown good cause 3 for such failure. 4 Moreover, it is well-established that a district court has authority to dismiss a 5 plaintiff s action because of his failure to prosecute or to comply with court orders. 6 See Fed. R. Civ. P. 41(b); Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); 7 Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 8 (1992). In determining whether to dismiss an action for failure to prosecute or 9 failure to comply with court orders, a district court must consider several factors: 10 (1) the public s interest in expeditious resolution of litigation; (2) the court s need 11 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy 12 favoring disposition of cases on their merits; and (5) the availability of less drastic 13 alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to 14 prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders). 15 This Court finds that the first two factors the public s interest in 16 expeditiously resolving this litigation and the Court s interest in managing the 17 docket, weigh in favor of dismissal since plaintiff has not effected service of the 18 Complaint, has not filed proofs of service, has not filed a response to the OSC, and 19 has not otherwise communicated with the Court regarding this matter. The Court 20 cannot hold this case in abeyance indefinitely awaiting plaintiff s response to the 21 Court s directives. The third factor, risk of prejudice to defendant, also weighs in 22 favor of dismissal since a presumption of injury arises from the occurrence of 23 unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 24 522, 524 (9th Cir. 1976). The fourth factor, the public policy favoring disposition 25 of cases on their merits, is greatly outweighed by the factors in favor of dismissal 26 discussed herein. Finally, as this Court has already cautioned plaintiff of the 27 consequences of failing to prosecute this action and afforded him the opportunity to 28 /// 3 1 do so, and as plaintiff has not responded, no sanction lesser than dismissal is 2 feasible. 3 Accordingly, it is ORDERED that this action be dismissed for lack of 4 prosecution. 5 DATED: August 30, 2013 6 7 _______________________________________ 8 HONORABLE BEVERLY REID O CONNELL UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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.