UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 24, 2009
STEVEN G. EIRICH, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING THE ACTION WITHOUT PREJUDICE FOR PLAINTIFF'S FAILURE TO FILE AN OPENING BRIEF, FOLLOW A COURT ORDER, AND PROSECUTE THE CASE
(Docs. 6, 25, 26, 27)
ORDER DIRECTING THE CLERK TO CLOSE THIS ACTION
Plaintiff was proceeding pro se with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application for benefits. Pursuant to the consent of the parties, on August 18, 2009, pursuant to 28 U.S.C. § 636(c)(1), District Judge Anthony W. Ishii reassigned the action to the Magistrate Judge to conduct all further proceedings in this case, including the entry of final judgment.
On June 29, 2009, the Court granted the motion of Plaintiff's counsel to withdraw and granted a stipulated request for an extension of time until August 1, 2009, for the filing of Plaintiff's brief as generally required by the Court's scheduling order of June 25, 2008, and previous extensions. The Court issued an informational order which was served on Plaintiff on July 1, 2009. When Plaintiff failed to file the opening brief by August 1, 2009, the Court issued an order to Plaintiff to appear personally on August 21, 2009, before the Court and show cause why the action should not be dismissed for Plaintiff's failure to comply with a court order, file an opening brief, and prosecute the action; the order was served on Plaintiff by mail on August 11, 2009. Plaintiff failed to appear on August 21, 2009.
Local Rule 11-110 provides that "...failure of counsel or of a party to comply with these Local Rules or with any order of the Court may be grounds for the imposition by the Court of any and all sanctions...within the inherent power of the Court." District courts have the inherent power to control their dockets and "in the exercise of that power, they may impose sanctions including, where appropriate...dismissal of a case." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party's failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to lack of prosecution and failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the court must consider several factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
In this case, the Court finds that the public's interest in expeditiously resolving this litigation and the Court's interest in managing the docket weigh in favor of dismissal, as the case has been pending since the middle of 2008.
The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Although Plaintiff is proceeding pro se and lacks legal expertise and proficiency in English, the Court has repeatedly granted extensions of time and issued informational orders. The administrative record has been filed for over a year. Plaintiff has failed to offer any explanation for the latest delay of two months. The Court finds that under the circumstances of this case, Plaintiff's delay is unreasonable.
The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein.
Finally, a court's warning to a party that her failure to obey the court's order might result in dismissal satisfies the "consideration of alternatives" requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court's order requiring Plaintiff to file a motion for summary judgment expressly warned Plaintiff that a failure to file a motion could result in dismissal for failure to comply with an order of the Court. Further, the Court has already attempted repeated extensions of time, informational orders, and warnings, but these alternatives have not resulted in the filing of an adequate motion that the Court can comprehend or that the Court reasonably can expect the Defendant to respond to on the merits. The Court finds that under the circumstances of the present case, there is no alternative to dismissal.
Accordingly, it IS ORDERED that the action IS DISMISSED without prejudice for failure to prosecute and failure to follow an order of the Court.
The Clerk IS DIRECTED to close this action because this order terminates the action in its entirety.
IT IS SO ORDERED.
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