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Contreras v. Astrue

September 25, 2009

MARIA ISABEL CONTRERAS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM DECISION AND ORDER RE DISMISSAL OF ACTION

I. INTRODUCTION

On November 20, 2008, Plaintiff Maria Isabel Contreras ("Plaintiff"), then represented by counsel, filed this action seeking to overturn the decision of the Commissioner of the Social Security Administration ("Defendant") denying her application for Supplemental Security Income and Disability Insurance benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge.

The Court issued a Case Management Order on November 20, 2008. The Case Management Order provides, inter alia, that within sixty-six days from the date that Defendant answers the Complaint, the parties must file a Joint Stipulation setting forth their contentions regarding each disputed issue. Defendant filed his Answer on May 5, 2009. Accordingly, the Joint Stipulation was due on or before July 10, 2009. As of today, no Joint Stipulation has been filed.

On August 13, 2009, the Court issued an Order requiring Plaintiff to show cause why this action should not be dismissed for failure to prosecute. On August 27, 2009, counsel for Plaintiff filed a Motion to Withdraw as Attorney of Record. In the Motion to Withdraw, Plaintiff's counsel stated that she was unable to prepare Plaintiff's portion of the Joint Stipulation and unable to contact Plaintiff after multiple attempts by telephone and mail. The Court granted the Motion to Withdraw in an Order issued September 3, 2009. A copy of this Order was mailed to Plaintiff at her address of record.

On September 9, 2009, the Court issued a second Order requiring Plaintiff to show cause why this action should not be dismissed for failure to prosecute. Plaintiff was ordered to respond on or before September 23, 2009. The Court expressly cautioned Plaintiff that failure to respond to the Court's Order would result in the dismissal of this case with prejudice for failure to prosecute.

As of today, Plaintiff has not responded to the Court's September 9, 2009 Order or requested an extension of time. Further action cannot be taken in this matter until Plaintiff informs the Court how she wishes to proceed. Therefore, the Court finds that dismissal of this action with prejudice is appropriate for failure to prosecute and failure to comply with court orders, pursuant to Federal Rule of Civil Procedure 41(b).

II. DISCUSSION

Federal Rule of Civil Procedure 41(b) grants district courts the authority to sua sponte dismiss actions for failure to prosecute or to comply with court orders. Link v. Wabash R.R., 370 U.S. 626, 629-31, 82 S.Ct. 1386, 8 L.Ed. 2d 734 (1962) ("The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts."). Dismissal, however, is a harsh penalty and is to be imposed only in extreme circumstances. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (citing Raiford v. Pounds, 640 F.2d 944, 945 (9th Cir. 1981) (per curiam)). In considering whether to dismiss an action for failure to prosecute or to comply with a court order, the Court must weigh five 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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); see also Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (applying the factors in reviewing the dismissal of a social security case).

A. The Five Factors Supporting Dismissal

1. Expeditious Resolution And The Court's Need To Manage Its Docket

In the instant action, the first two factors --- public interest in expeditious resolution of litigation and the need to manage the Court's docket --- weigh in favor of dismissal. The Court advised Plaintiff that she needed to respond to the Court's September 9, 2009 Order. Plaintiff, however, has wholly failed to communicate with the Court. Plaintiff's conduct hinders the Court's ability to move this case toward disposition and indicates that Plaintiff does not intend to litigate this action diligently.

2. The Risk Of Prejudice To Defendant

The third factor --- prejudice to Defendant --- also counsels in favor of dismissal. The prejudice to a defendant simply from the pendency of a lawsuit is insufficient, on its own, to warrant dismissal. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). The risk of prejudice, however, is related to the plaintiff's reason for defaulting. Pagtalunan, ...


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