Eric Trend Frierson v.Nancy A. Berryhill, No. 5:2017cv02317 - Document 38 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. It is ORDERED that Judgment shall be entered dismissing the Complaint with prejudice for failure to prosecute and to comply with Court orders. See Order for details. (dml)
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Eric Trend Frierson v.Nancy A. Berryhill Doc. 38 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ERIC TREND FRIERSON, 12 Plaintiff, v. 13 14 15 NANCY A. BERRYHILL, Deputy Commissioner of Operations of Social Security, Case No. ED CV 17-02317-RAO MEMORANDUM OPINION AND ORDER Defendant. 16 17 18 19 I. INTRODUCTION 20 On November 15, 2017, Plaintiff Eric Trend Frierson (“Plaintiff”), 21 represented by counsel, filed a Complaint in this Court challenging the 22 Commissioner’s decision to deny his application for disability benefits. (Dkt. No. 23 1.) On November 27, 2017, the Court issued an order regarding procedures in this 24 action. (Dkt. No. 11.) On February 2, 2018, the case was transferred to the 25 undersigned Magistrate Judge. (Dkt. No. 19.) The Commissioner filed an answer 26 and the certified administrative record on April 16, 2018. (Dkt. Nos. 26, 27.) 27 On July 16, 2018, Plaintiff’s counsel filed a motion to withdraw as attorney, 28 citing Plaintiff’s failure to communicate with counsel regarding substantive aspects Dockets.Justia.com 1 of the case. (Dkt. No. 32.) Plaintiff’s counsel filed a proof of service of his motion 2 to withdraw on Plaintiff. (Dkt. No. 34.) On July 24, 2018, the Court granted 3 Plaintiff’s counsel’s motion and directed counsel to file proof of service evidencing 4 that Plaintiff has been served with a copy of the Court’s order. (Dkt. No. 35.) On 5 July 31, 2018, Plaintiff’s counsel filed proof of service on Plaintiff of the Court’s 6 July 24 order. (Dkt. No. 36.) 7 In the Court’s July 24 order allowing counsel to withdraw, the Court set a 8 telephonic status conference for August 27, 2018, at 10 a.m. The Court’s order 9 directed that Plaintiff be prepared to inform the Court how he wanted to proceed in 10 this matter, including whether he is attempting to retain new counsel to represent 11 him. (Dkt. No. 35.) The Court’s order warned Plaintiff “that failure to participate 12 in the telephonic status conference as scheduled could result in dismissal of his case 13 for failure to prosecute.” (Id.) 14 15 On August 27, 2018, the Court held a telephonic status conference in this matter. Plaintiff did not appear for the status conference. (Dkt. No. 37.) 16 Given the foregoing, and for the reasons below, the Court dismisses the 17 complaint with prejudice for failure to prosecute and to follow court orders. 18 II. DISCUSSION 19 Federal Rule of Civil Procedure 41(b) grants district courts sua sponte 20 authority to dismiss actions for failure to prosecute or for failure to comply with 21 court orders. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31, 82 S. Ct. 1386, 8 L. 22 Ed. 2d 734 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-63 (9th Cir. 1992). 23 “District courts have the inherent power to control their dockets and, [i]n the 24 exercise 25 appropriate, . . . dismissal of a case.” Ferdik, 963 F.2d at 1260 (internal quotation 26 marks omitted). 27 28 of that power they may impose sanctions including, where In determining whether to dismiss an action for failure to prosecute or for failure to comply with court orders, a court must weigh five factors: 2 1 (1) the public’s interest in expeditious resolution of litigation; 2 (2) the court’s need to manage its docket; 3 (3) the risk of prejudice to defendants/respondents; 4 (4) the availability of less drastic alternatives; and 5 (5) the public policy favoring disposition of cases on their merits. 6 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 7 Here, the first factor (the public’s interest in expeditious resolution of 8 litigation) and second factor (the Court’s need to manage its docket) strongly favor 9 dismissal. The Court attempted to avoid this outcome by providing Plaintiff time, 10 after allowing his attorney to withdraw as counsel, to determine how he wished to 11 proceed in this matter and scheduling a telephonic status conference at which he 12 could apprise the Court of his intentions. See Dkt. No. 35. Plaintiff failed to appear 13 for the scheduled conference. Dkt. No. 37. Plaintiff’s “noncompliance has caused 14 [this] action to come to a complete halt, thereby allowing [him] to control the pace 15 of the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 16 (9th Cir. 1999) (internal quotations marks omitted). His inaction frustrates the 17 public’s interest in the expeditious resolution of litigation and the Court’s need to 18 manage its docket. 19 The third factor (the risk of prejudice) requires a showing that the Plaintiff’s 20 actions impaired the Commissioner’s ability to proceed with litigation or threatened 21 to interfere with the rightful decision of the case. See Pagtalunan, 291 F.3d at 642. 22 “Limited delays and the prejudice to a defendant from the pendency of a lawsuit are 23 realities of the system that have to be accepted, provided the prejudice is not 24 compounded by ‘unreasonable’ delays.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th 25 Cir. 1984). However, “the risk of prejudice to the defendant is related to the 26 plaintiff’s reason for defaulting in failing to timely” act. Yourish, 191 F.3d at 991. 27 The better the reason, the less likely it is that the third factor will favor dismissal. 28 See id. (finding that the plaintiff’s “paltry excuse for his default on the judge’s order 3 1 indicate[d] that there was sufficient prejudice to Defendants from the delay that [the 2 third] factor also strongly favor[ed] dismissal”). The Ninth Circuit has stated that 3 “the failure to prosecute diligently is sufficient by itself to justify a dismissal, even 4 in the absence of a showing of actual prejudice to the defendant from the failure.” 5 Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976); see also In re Eisen, 31 6 F.3d 1447, 1452-53 (9th Cir. 1994) (quoting Anderson). However, while prejudice 7 is presumed for a failure to prosecute, the presumption may be rebutted, and a court 8 should consider whether there has been a showing that no actual prejudice has 9 occurred. Anderson, 542 F.2d at 524. 10 Here, Plaintiff’s failure to appear for the scheduled status conference or 11 otherwise respond to the Court’s order indicates a loss of interest in the matter. 12 Plaintiff’s loss of interest is further supported by his former counsel’s 13 representation that Plaintiff was not responding to counsel’s communications. Dkt. 14 No. 32 at 3 & Declaration of Lawrence D. Rohlfing. The Commissioner’s ability to 15 defend against the instant action is hampered by Plaintiff’s apparent failure to 16 participate, and the Commissioner should not be forced to litigate this action if 17 Plaintiff is not actively pursuing the matter. The Court therefore finds that the third 18 factor weighs in favor of dismissal. 19 The fourth factor (the availability of less drastic alternatives) strongly 20 supports dismissal. As noted above, the Court attempted to avoid dismissal by 21 allowing Plaintiff an opportunity to inform the Court how he wished to proceed 22 after his counsel was allowed to withdraw. Despite the Court’s warning that failure 23 to appear for the August 27 status conference could result in dismissal of his case, 24 Plaintiff has failed to comply with the Court’s orders. 25 imprudent to wait any longer for Plaintiff to exhibit an interest in prosecuting this 26 action with the requisite amount of diligence. Henderson v. Duncan, 779 F.2d 27 1421, 1424 (9th Cir. 1986) (a district court “need not exhaust every sanction short 28 of dismissal before . . . dismissing a case”). 4 The Court deems it 1 The fifth factor (the public policy favoring disposition on the merits) weighs 2 against dismissal, as it almost inevitably will when an action is dismissed without 3 reaching the merits. Pagtalunan, 291 F.3d at 643. 4 In sum, four out of the five factors support dismissal. See Yourish, 191 F.3d 5 at 990 (dismissal is appropriate where three of the five factors strongly support 6 dismissal). 7 A dismissal pursuant to Federal Rule of Civil Procedure 41(b) operates as an 8 adjudication on the merits unless one of three exceptions applies: if the court lacks 9 jurisdiction, venue is improper, or joinder of a required party has not occurred. 10 Here, the Court is dismissing for failure to prosecute and to obey court orders, and 11 thus none of Rule 41(b)’s exceptions applies. Accordingly, dismissal will be with 12 prejudice to refiling of a new action in federal court based on the same allegations. 13 See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (dismissal under 14 Rule 41(b) is an adjudication on the merits unless one of the rule’s exceptions 15 applies). 16 III. 17 18 CONCLUSION It is ORDERED that Judgment shall be entered dismissing the Complaint with prejudice for failure to prosecute and to comply with Court orders. 19 20 21 DATED: August 31, 2018 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 NOTICE THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 27 28 5
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