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Derreja v. Astrue


August 10, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff, who is represented by counsel, filed a complaint on July 17, 2009. (Dkt. No. 1.) This court issued a scheduling order setting forth, among other things, a deadline by which defendant was required to file the administrative transcript and an answer or other response to plaintiff's complaint, and a deadline by which plaintiff was required to file a motion for summary judgment and/or remand. (Dkt. No. 4.) The scheduling order further provides: "The court will not contact counsel or the parties to remind them of these scheduling deadlines. Failure to adhere to the schedule outlined above may result in sanctions, including dismissal.

L.R. 11--110. Plaintiff has an affirmative duty to prosecute this action, and failure to do so may result in dismissal for lack of prosecution. Fed. R. Civ. P. 41(b)." (Dkt. No. 4 at 3.)

On March 8, 2010, defendant lodged the administrative transcript with the court and filed an answer to plaintiff's complaint. (Dkt. Nos. 13, 14.)

On April 29, 2010, the court approved the parties' stipulation permitting plaintiff to file a motion for summary judgment on or before July 9, 2010. (Dkt. No. 18.) Despite this extension, plaintiff failed to file a timely motion for summary judgment or request an additional extension of time.

On July 20, 2010, the undersigned ordered plaintiff's counsel to show cause in writing "why this case should not be dismissed for lack of prosecution and why plaintiff's counsel, Bess M. Brewer, should not be personally sanctioned by the court for failure to adhere to the court's Local Rules and the orders entered in this case" (the "OSC"). (Dkt. No. 19.) The OSC also required Ms. Brewer to serve the OSC on her client and notify the court of such service.

On July 28, 2010, Ms. Brewer filed a notice with the court, which indicates that Ms. Brewer timely served the OSC on her client. (Dkt. No. 20.) On August 5, 2010, Ms. Brewer filed a timely response to the OSC, in which she "apologize[d] to the court for her negligence in not timely requesting an extension of time within which to file Ms. Derreja's motion and for continuing to strain the court's patience." (Dkt. No. 21.) She also asked that plaintiff be permitted to file a motion for summary judgment. Additionally, on August 5, 2010, Ms. Brewer came before the court on a different matter in which she serves as counsel, and the undersigned had a lengthy discussion regarding Ms. Brewer's failings in that case, this case, and other cases wherein she serves as plaintiff's counsel. (See Ortiz v. Comm'r of Soc. Sec., No. 2:09-cv-02641 KJN (E.D. Cal.), Dkt. Nos. 24, 25.)

On August 6, 2010, plaintiff filed her motion for summary judgment.

In light of Ms. Brewer's admitted negligence, contrition, and the undersigned's recent discussion with Ms. Brewer in the Ortiz matter, the undersigned will discharge the OSC and deem plaintiff's motion as timely filed. It appears the Commissioner has no objection to the filing of the motion. However, the undersigned incorporates by this reference the warnings contained in the August 9, 2010 order in the Ortiz matter, which address Ms. Brewer's failures to diligently prosecute her client's case and comply with the court's orders.

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. The OSC entered July 20, 2010, is discharged.

2. Plaintiff's motion for summary judgment is deemed timely filed as of the date of this order.

3. The court's scheduling order is modified accordingly.



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