Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kelly v. Astrue

April 27, 2010

GENA KELLY, 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

I. INTRODUCTION

On September 3, 2009, Gena Kelly ("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. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge.

On September 4, 2009, the Court issued an Order Regarding Further Proceedings directing Defendant to file an Answer to the Complaint by January 28, 2010. On February 23, 2010, the Court issued an Order To Show Cause why this action should not be dismissed for Plaintiff's failure to prosecute because Defendant had failed to file an Answer and Plaintiff had not filed a Motion for Default or otherwise caused this case to move forward. The Order to Show Cause required Plaintiff to file a response by March 9, 2010 and "explicitly cautioned that failure to respond... [would] result in the dismissal of this case for failure to prosecute."

On March 29, 2010, Plaintiff's counsel filed a Motion to Withdraw As Attorney of Record. On April 13, 2010, the Court granted the Motion to Withdraw and ordered Plaintiff to "enter a Notice of Appearance for newly retained counsel or... file a notice with the Court that she intends to proceed in pro per" by April 23, 2010. As of today, Plaintiff has failed to respond to the February 23, 2010 Order to Show Cause and has failed to either file a Notice of Appearance for newly retained counsel or filed a notice that she intends to proceed in pro per. Further action cannot be taken in this matter without Plaintiff's participation. 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. See 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. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). 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 February 23, 2010 Order to Show Cause and "explicitly cautioned that failure to respond... [would] result in the dismissal of this case for failure to prosecute." On April 13, 2010, the Court further directed Plaintiff to either file a Notice of Appearance of newly retained counsel or file a notice with the Court that she intends to proceed in pro per by April 23, 2010. Plaintiff, however, has failed to respond to either directive. There is no evidence before the Court that Plaintiff did not receive the Court's orders. 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. See 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, 291 F.3d at 642 (citing Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)).

Plaintiff has not offered any excuse for her failure to respond to the Court's orders. Where a party offers a poor excuse for failing to comply with a court's order, the prejudice to the opposing party is sufficient to favor dismissal. Yourish, 191 F.3d at 991-92. Here, Plaintiff has offered no excuse for failing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.