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Marshall v. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 1, 2009

DEBORAH L. MARSHALL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER RE: ORDER TO SHOW CAUSE

This social security appeal came before the court for a hearing on December 1, 2009 on the court's order to show cause why it should not be dismissed for failure to prosecute. Thomas Roche, Esq. appeared on behalf of Plaintiff. Mark Winn, Esq. appeared telephonically on behalf of Defendant.

The complaint was filed on September 23, 2008. On January 14, 2009 Defendant filed an answer and the administrative record. On January 16, 2009 Magistrate Judge William McCurine, Jr. issued a briefing schedule ordering Plaintiff to file a summary judgment motion no later than March 20, 2009. On November 4, 2009 the court issued an order to show cause why the case should not be dismissed for failure to prosecute, because there had been no activity since March 20, 2009.

Federal Rule of Civil Procedure 41(b) provides in pertinent part: Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.

District courts have the authority to dismiss sua sponte "cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief." Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). Consistent with this authority, Civil Local Rule 41.1(a) provides:

Actions or proceedings which have been pending in this court for more than six months, without any proceeding or discovery having been taken during such period, may, after notice, be dismissed by the court for want of prosecution, at the calling of a calendar prepared for that purpose by the clerk. Such a dismissal shall be without prejudice, unless otherwise ordered. Based on Plaintiff's representations on the record regarding the reason for a more than ten-month delay, the court finds that the delay was unreasonable. However, in the interests of justice and because Plaintiff in the recent days has commenced settlement negotiations with Defendant, the action is not dismissed at this time. Accordingly, it is hereby ORDERED as follows:

1. No later than December 14, 2009 Plaintiff shall file either a dismissal or a motion for summary judgment.

2. Plaintiff shall forthwith contact the chambers of the Hon. William McCurine Jr. to schedule a case management conference to address the ongoing settlement negotiations and set a new briefing schedule on cross-motions for summary judgment on an expedited basis.

3. If Plaintiff does not file either a dismissal or a summary judgment motion on or before December 14, 2009, this action will be dismissed without prejudice for failure to prosecute.

IT IS SO ORDERED.

20091201

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