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Rust v. Colvin

United States District Court, Ninth Circuit

August 5, 2013

LYNNE A. RUST, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant.

MEMORANDUM DECISION AND ORDER

SUZANNE H. SEGAL, Magistrate Judge.

I.

INTRODUCTION

On August 30, 2012, Lynne A. Rust ("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. ยง 636(c), to the jurisdiction of the undersigned United States Magistrate Judge.

On April 4, 2013, Plaintiff's counsel filed a "Motion to Withdraw As Attorney of Record." (Dkt. No. 16). In the Motion to Withdraw, Plaintiff's counsel stated that "[t]he attorney client relationship has deteriorated and counsel cannot proceed [as] the attorney for [Plaintiff]." (Id. at 2). Specifically, counsel stated, "given my education, experience, and training in handling Social Security matters, I cannot properly represent the interests of [Plaintiff]." (Id. at 5). Counsel also stated that he "wrote to [Plaintiff] informing her that after review of the administrative record [he] could not pursue this matter on her behalf" and requested Plaintiff's permission to dismiss the action, which Plaintiff did not provide. (Id.). Further, in the Motion, counsel requested that Plaintiff be given an extension of time to retain counsel and prepare her memorandum in support of her complaint. (Id. at 2).

On May 16, 2013, the Court issued a briefing schedule stating that "[a]ny Opposition to the Motion to Withdraw is due no later than May 30, 2013." (Dkt. No. 17). The Court also ordered "Counsel for Plaintiff... to promptly serve a copy of this [briefing] Order and the Motion to Withdraw on Plaintiff at Plaintiff's last known address and file proof of service with this Court." (Id.). On May 21, 2013, Plaintiff's counsel filed proof of service stating that the Court's May 16 Order and the Motion to Withdraw as Attorney of Record were mailed to Plaintiff's address of record. (Dkt. No. 18 at 2). Plaintiff did not file any Opposition to the Motion to Withdraw.

On June 4, 2013, the Court issued an Order granting the Motion to Withdraw. (Dkt. No. 20). The Court also ordered counsel to serve a copy of the Order on Plaintiff at her last known address to file a copy of the proof of service with the Court within seven days of the Order. (Id.). Counsel for Plaintiff filed a proof of service on June 6, 2013. (Dkt. No. 20).

In the Order granting the Motion to Withdraw, the Court provided fourteen days for Plaintiff to obtain counsel and file a Notice of Substitution. (Id.) The Court also expressly warned Plaintiff that "failure to file a Notice of Substitution will be deemed a violation of Court orders. The Court will find that such a violation results in a failure to prosecute and will DISMISS this action with prejudice, pursuant to Federal Rule of Civil Procedure 41." (Dkt. No. 19 at 2). The Court also advised Plaintiff that such a dismissal would bar the action from proceeding. (Id.).

As of today, Plaintiff has failed to file a Notice of Substitution or any other response to the Court's June 4, 2013 Order. 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, 629-30, 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 ...


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