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Michelle J. Gump v. Michael J. Astrue

January 3, 2012

MICHELLE J. GUMP, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On March 11, 2011, plaintiff Michelle J. Gump ("Plaintiff") filed a Complaint, seeking review of the denial by the Commissioner of the Social Security Administration of her applications for social security disability benefits. Pursuant to the Court's October 28, 2011 Order, Plaintiff was directed to submit a joint report to the Court regarding the status of this action.

On December 13, 2011, the Court issued an Order to Show Cause ("OSC") directing Plaintiff to show cause, no later than December 27, 2011, why this action should not be dismissed for Plaintiff's failure to prosecute this action. Plaintiff shall attempt to show such cause in writing by filing a declaration signed under penalty of perjury. In particular, Plaintiff's declaration must address why Plaintiff has not responded to Defendant's letter or the Court's October 28, 2011 Minute Order and whether further prosecution of this action is advisable. Failure to timely file such a declaration or to show cause as ordered will result in dismissal of this action for failure to prosecute. (OSC at 1 (bold in original).) As of the date of this Order, Plaintiff has not filed any response to the OSC.

II. DISCUSSION

A district court may dismiss an action for failure to prosecute or to comply with court orders. Fed. R. Civ. P. 41(b); Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962) (authority to dismiss for failure to prosecute necessary to avoid undue delay in disposing of cases and congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992, as amended May 22, 1992), cert. denied, 506 U.S. 915 (1992) (district court may dismiss action for failure to comply with any court order). Dismissal, however, is a severe penalty and should be imposed only after consideration of the relevant factors in favor of and against this extreme remedy. Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir.) (per curiam), cert. denied, 479 U.S. 829, 107 S.Ct. 112 (1986).

In determining whether to dismiss a case for failure to comply with a court order, a 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;

(4) the public policy favoring disposition of cases on their merits; and

(5) the availability of less drastic alternatives.

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The Court will assess each of the above five factors in turn.

In this case, both the first factor (public interest in expeditious resolution of litigation) and the second factor (the court's need to manage its docket) strongly favor dismissal. Plaintiff has not responded to Defendant's attempts and her former counsel's attempts to contact her. It has now been over two months since Plaintiff ...


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