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Sauerberg v. Colvin

United States District Court, C.D. California

January 5, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Lisa Marie Sauerberg, Plaintiff, Pro se, Los Angeles, CA.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Jennifer A Kenney, LEAD ATTORNEY, Social Security Administration, Office of the General Counsel - Social Security Adm, San Francisco, CA.

CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE. Jean Rosenbluth, United States Magistrate Judge.



On June 11, 2014, Plaintiff filed pro se a Complaint challenging the denial of Social Security disability benefits. On June 13, 2014, the Magistrate Judge issued a case management order, requiring Plaintiff to file a motion for judgment on the pleadings within 35 days of service of Defendant's Answer to the Complaint. Defendant filed and served her Answer on October 23, 2014. Thus, Plaintiff's motion for judgment on the pleadings was due no later than November 27, 2014. On December 5, 2014, because Plaintiff had not timely filed her motion, the Magistrate Judge ordered her to show cause no later than December 19, 2014, why this action should not be dismissed for failure to prosecute. The Magistrate Judge noted that Plaintiff had also failed to comply with another order she had issued, requiring Plaintiff to file proof of service of the Complaint. The Magistrate Judge expressly warned Plaintiff that " her failure to timely and satisfactorily comply with this minute order will likely result in this case being dismissed for failure to prosecute." The Magistrate Judge also informed Plaintiff of the availability of help from the local pro se clinic. To date, Plaintiff has not responded to the Order to Show Cause.

Courts may dismiss lawsuits that are not diligently prosecuted. Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per curiam). In determining whether to dismiss a pro se plaintiff's action for failure to prosecute, a court must consider " (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 the defendants; (4) the public policy favoring disposition of cases on their merits[; ] and (5) the availability of less drastic sanctions." Carey, 856 F.2d at 1440. Unreasonable delay creates a rebuttable presumption of prejudice to the defendant that can be overcome only with an affirmative showing of just cause by the plaintiff. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994).

Here, the first, second, third, and fifth Carey factors militate in favor of dismissal. Plaintiff has ceased communicating with the Court altogether, and thus she certainly has not rebutted the presumption of prejudice to Defendant caused by her unreasonable delay in prosecuting this lawsuit, in which she has taken no action since filing the Complaint more than a half year ago despite three Court orders. There also does not appear to be any less drastic sanction the Court can take, as Plaintiff will not respond to the Court to try to address the situation. Further, Plaintiff was expressly warned that if she did not respond to the Magistrate Judge's Order to Show Cause, this action would likely be dismissed. Still, Plaintiff did not respond. Although the fourth factor weighs against dismissal -- as it does in every case -- the other factors together outweigh the public's interest in disposing of the case on its merits. See Long v. Astrue, 416 F.App'x 633, 634 (9th Cir. 2011) (upholding dismissal of Social Security action for failure to prosecute when Plaintiff had not served summons and did not show cause for her failure to do so).

Plaintiff has failed to prosecute this action, and it must therefore be DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.


In accordance with the Order Dismissing Action for Failure to Prosecute and Administratively Closing Case, IT IS HEREBY ADJUDGED that this action is dismissed.

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