Lynne A Rust v. Carolyn W. Colvin, No. 5:2012cv01470 - Document 21 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on Plaintiff at her current address of record, as indicated in counsel's declaration, and on counsel for Defendant. (mr)
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Lynne A Rust v. Carolyn W. Colvin Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LYNNE A. RUST, 12 Plaintiff, 13 14 15 v. CAROLYN W. COLVIN, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 12-01470 SS MEMORANDUM DECISION AND ORDER 17 18 19 I. 20 INTRODUCTION 21 22 On August 30, 2012, Lynne A. Rust ( Plaintiff ), then represented 23 by counsel, filed this action seeking to overturn the decision of the 24 Commissioner of the Social Security Administration ( Defendant ) denying 25 her 26 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 27 undersigned United States Magistrate Judge. application for Supplemental Security Income. The parties 28 Dockets.Justia.com 1 On April 4, 2013, Plaintiff s counsel filed a Motion to Withdraw 2 As Attorney of Record. 3 Plaintiff s counsel stated that [t]he attorney client relationship has 4 deteriorated 5 [Plaintiff]. 6 education, experience, and training in handling Social Security matters, 7 I cannot properly represent the interests of [Plaintiff]. 8 Counsel also stated that he wrote to [Plaintiff] informing her that 9 after review of the administrative record [he] could not pursue this 10 matter on her behalf and requested Plaintiff s permission to dismiss 11 the action, which Plaintiff did not provide. 12 Motion, counsel requested that Plaintiff be given an extension of time 13 to 14 complaint. retain and (Dkt. No. 16). counsel cannot (Id. at 2). counsel and In the Motion to Withdraw, proceed [as] the attorney for Specifically, counsel stated, given my prepare her (Id.). memorandum in (Id. at 5). Further, in the support of her (Id. at 2). 15 16 On May 16, 2013, the Court issued a briefing schedule stating that 17 [a]ny Opposition to the Motion to Withdraw is due no later than May 30, 18 2013. 19 . . to promptly serve a copy of this [briefing] Order and the Motion to 20 Withdraw on Plaintiff at Plaintiff s last known address and file proof 21 of service with this Court. 22 counsel filed proof of service stating that the Court s May 16 Order and 23 the Motion to Withdraw as Attorney of Record were mailed to Plaintiff s 24 address of record. 25 Opposition to the Motion to Withdraw. (Dkt. No. 17). The Court also ordered Counsel for Plaintiff . (Id.). On May 21, 2013, Plaintiff s (Dkt. No. 18 at 2). Plaintiff did not file any 26 27 28 On June 4, 2013, the Court issued an Order granting the Motion to Withdraw. (Dkt. No. 20). The Court also ordered counsel to serve a 2 1 copy of the Order on Plaintiff at her last known address to file a copy 2 of the proof of service with the Court within seven days of the Order. 3 (Id.). 4 (Dkt. No. 20). Counsel for Plaintiff filed a proof of service on June 6, 2013. 5 6 In the Order granting the Motion to Withdraw, the Court provided 7 fourteen days for Plaintiff to obtain counsel and file a Notice of 8 Substitution. 9 failure to file a Notice of Substitution will be deemed a violation of (Id.) The Court also expressly warned Plaintiff that 10 Court orders. The Court will find that such a violation results in a 11 failure to prosecute and will DISMISS this action with prejudice, 12 pursuant to Federal Rule of Civil Procedure 41. 13 The Court also advised Plaintiff that such a dismissal would bar the 14 action from proceeding. (Dkt. No. 19 at 2). (Id.). 15 16 As of today, Plaintiff has failed to file a Notice of Substitution 17 or any other response to the Court s June 4, 2013 Order. Further action 18 cannot be taken in this matter without Plaintiff s participation. 19 Therefore, the Court finds that dismissal of this action with prejudice 20 is appropriate for failure to prosecute and failure to comply with Court 21 orders, pursuant to Federal Rule of Civil Procedure 41(b). 22 23 II. 24 DISCUSSION 25 26 Federal Rule of Civil Procedure 41(b) grants district courts the 27 authority to sua sponte dismiss actions for failure to prosecute or to 28 comply with court orders. See Link v. Wabash R.R., 370 U.S. 626, 3 1 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) ( The power to invoke 2 this sanction is necessary in order to prevent undue delays in the 3 disposition of pending cases and to avoid congestion in the calendars of 4 the District Courts. ). 5 to be imposed only in extreme circumstances. 6 779 F.2d 1421, 1423 (9th Cir. 1986). 7 an action for failure to prosecute or to comply with a court order, the 8 Court must weigh five factors: (1) the public s interest in expeditious 9 resolution of litigation; (2) the court s need to manage its docket; (3) 10 the risk of prejudice to defendants/respondents; (4) the availability of 11 less 12 disposition of cases on their merits. 13 639, 642 (9th Cir. 2002); see also Oliva v. Sullivan, 958 F.2d 272, 274 14 (9th Cir. 1992) (applying the factors in reviewing the dismissal of a 15 social security case). drastic Dismissal, however, is a harsh penalty and is alternatives; and See Henderson v. Duncan, In considering whether to dismiss (5) the public policy favoring Pagtalunan v. Galaza, 291 F.3d 16 17 A. The Five Factors Supporting Dismissal 18 19 20 1. Expeditious Resolution And The Court s Need To Manage Its Docket 21 22 In the instant action, the first two factors - public interest in 23 expeditious resolution of litigation and the need to manage the Court s 24 docket - weigh in favor of dismissal. 25 a Notice of Substitution by June 18, 2013. 26 Court expressly advised Plaintiff that failure to file a Notice of 27 Substitution will be deemed a violation of Court orders. The Court will 28 find that such a violation results in a failure to prosecute and will 4 Plaintiff was required to file (Dkt. No. 19 at 2). The 1 DISMISS this action with prejudice, pursuant to Federal Rule of Civil 2 Procedure 41. (Id. at 2). 3 4 As of today, however, Plaintiff has failed to file a Notice of 5 Substitution 6 Additionally, there is no evidence before the Court that Plaintiff did 7 not receive the Court s Order. 8 ability 9 Plaintiff does not intend to litigate this action diligently. to or move any response this case to the Court s June 4, 2013 Order. Plaintiff s conduct hinders the Court s toward disposition and indicates that 10 2. 11 The Risk Of Prejudice To Defendant 12 13 The third factor - prejudice to Defendant - also counsels in 14 favor of dismissal. The prejudice to a defendant simply from the 15 pendency of a lawsuit is insufficient, on its own, to warrant dismissal. 16 See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). The risk of 17 prejudice, however, is reason 18 defaulting. 19 Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)). related to the plaintiff s for Pagtalunan, 291 F.3d at 642 (citing Yourish v. California 20 21 Here, Plaintiff has not offered any excuse for her failure to 22 respond to the Court s orders. Where a party offers a poor excuse for 23 failing to comply with a court s order, the prejudice to the opposing 24 party is sufficient to favor dismissal. 25 991-92. 26 respond to the Court s orders, the prejudice element favors dismissal. Because Plaintiff has not offered any excuse for failing to 27 28 See Yourish, 191 F.3d at \\ 5 3. 1 Less Drastic Alternatives 2 3 The fourth factor - the availability of less drastic sanctions - 4 ordinarily counsels against dismissal. The Court has, however, 5 attempted to avoid outright dismissal by explicitly warning Plaintiff of 6 her obligation to file a Notice of Substitution. 7 2). 8 failure to file a Notice of Substitution would result in dismissal 9 pursuant to Federal Rule of Civil ( See Dkt. No. 19 at As discussed above, the Court expressly advised Plaintiff that explored meaningful Procedure 41. alternatives to The Court has, 10 therefore, dismissal. See 11 Henderson, 779 F.2d at 1424 ( The district court need not exhaust every 12 sanction short of dismissal before finally dismissing a case, but must 13 explore possible and meaningful alternatives. ). 14 15 In addition, her own attorney s declaration demonstrates that 16 Plaintiff has lost interest in this litigation. In the declaration, her 17 attorney states that Plaintiff told him in their last phone conversation 18 that she would get back to him, but she failed to do so. 19 messages for her on March 21 and March 28, but she did not return his 20 calls. 21 this 22 appropriate. (Dkt. 16 at 5, ¶ 4). case, sanctions other He left Because Plaintiff has lost interest in than dismissal do not appear to be 23 24 4. Public Policy Favoring Disposition On The Merits 25 26 The fifth factor - public policy favoring disposition of cases on 27 their merits - ordinarily weighs against dismissal. However, it is the 28 responsibility of the moving party to move toward disposition at a 6 1 reasonable pace and to refrain from dilatory and evasive tactics. See 2 Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). 3 Here, Plaintiff has not discharged this responsibility despite having 4 ample time. 5 resolution of disputes on the merits does not outweigh Plaintiff s 6 failure to respond to Court orders in the given time frame. Under these circumstances, the public policy favoring 7 8 B. Dismissal Of This Action Is Warranted 9 10 In view of the foregoing, the Court concludes that dismissal of 11 this action is warranted under Rule 41(b), which states in pertinent 12 part: 13 14 [A] dismissal under this subdivision (b) and any dismissal not 15 under this rule - except one for lack of jurisdiction, 16 improper venue, or failure to join a party under Rule 19 - 17 operates as an adjudication on the merits. 18 19 Fed. R. Civ. P. 41(b). 20 21 The Court dismisses this action on the basis of Plaintiff s failure 22 to prosecute and obey Court orders. Because this case does not fall 23 into one of the three exceptions noted above, the dismissal will operate 24 as an adjudication on the merits. 25 prejudice to Plaintiff s refiling of a new action in federal court based 26 on the same allegations. 27 (9th Cir. 2002) (dismissal interpreted as an adjudication on the merits 28 unless one of the Rule 41(b) exceptions applies); Owens v. Kaiser Found. The dismissal will thus be with See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 7 1 Health Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001) (dismissal for 2 failure to prosecute is treated as an adjudication on the merits) 3 (citing United States v. Schimmels (In re Schimmels), 127 F.3d 875, 884 4 (9th Cir. 1997)). 5 6 III. 7 CONCLUSION 8 9 Plaintiff was advised in the Court s June 4, 2013 Order about the 10 possibility of dismissal of this action in the event of a failure to 11 file a Notice of Substitution. 12 the Court s orders and has failed to participate in her own litigation. However, she has failed to comply with 13 14 Consistent with the foregoing, IT IS ORDERED that Judgment be 15 entered DISMISSING this action with prejudice. IT IS FURTHER ORDERED 16 that the Clerk of the Court serve copies of this Order and the Judgment 17 herein on Plaintiff at her current address of record, as indicated in 18 counsel s declaration, and on counsel for Defendant. 19 20 DATED: August 5, 2013 21 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 8