United States District Court, C.D. California
PEDRO A. CASTANEDA CASTILLO, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
G. ROSENBERG United States Magistrate Judge
30, 2015, Plaintiff Castillo filed a complaint to review and
set aside a decision by the Commissioner to deny benefits.
Pursuant to 28 U.S.C. § 636(c), the parties consented to
proceed before the magistrate judge. (Dkt. Nos. 12-13.)
March 22, 2016, the court issued an order granting plaintiff
counsel's motion to withdraw as counsel of record. The
order became effective when counsel filed a proof of service
evidencing that Castillo was served with the order. (Dkt. No.
26.) The order explained that if Castillo did not obtain new
counsel on or before April 25, 2016, the matter would proceed
with Castillo appearing pro se and with a revised schedule.
(Id.) The proof of service was filed on March 31,
2016. (Dkt. No. 27.) No counsel filed a Notice of Appearance.
Nor did Castillo request an extension of time to obtain new
to the order, Castillo was to file and serve a motion for
judgment on the pleadings on or before May 25, 2016. The
order expressly warned that "[i]f Plaintiff does not
file and serve a motion for judgment on the pleadings on or
before May 25, 2016, this action will be subject to dismissal
without prejudice for failure to prosecute and failure to
comply with a court order. Fed.R.Civ.P. 41(b); Link v.
Wabash Railroad Co., 370 U.S 626, 629-30 (1962)."
(Dkt. No. 26.) The order set forth guidelines as to the
preparation of a motion for judgment on the pleadings.
(Id.) Castillo did not file a motion for judgment on
the pleadings and did not request an extension of time to do
2, 2016, this court issued an Order to Show Cause
("OSC") that required Castillo to show cause on or
before June 16, 2016, why this case should not be dismissed
without prejudice for failure to prosecute and/or failure to
comply with a court order. The filing and service of a motion
for judgment on the pleadings on or before June 16, 2016, was
expressly deemed compliance with the OSC. (Dkt. No. 28.) The
Order to Show Cause expressly warned that "[i]f
Plaintiff fails to file and serve a motion for judgment on
the pleadings or otherwise respond to this Order to Show
Cause on or before June 16, 2016, this Court will dismiss
this action without prejudice for failure to prosecute and/or
failure to comply with a court order. Fed.R.Civ.P. 41(b);
Link v. Wabash Railroad Co., 370 U.S. 626, 629-30
date, Castillo has not filed a motion for judgment on the
pleadings and has not otherwise responded to the OSC.
well established that a district court has authority to
dismiss a plaintiff's action because of his or her
failure to prosecute or to comply with court orders.
See Fed. R. Civ. P. 41(b); Link v. Wabash
Railroad Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1962) (court's authority to dismiss for lack
of prosecution is necessary to prevent undue delays in the
disposition of pending cases and avoid congestion in district
court calendars); Ferdik v. Bonzelet, 963 F.2d 1258,
1260 (9th Cir. 1992) (district court may dismiss action for
failure to comply with any order of the court).
determining whether to dismiss a case for failure to
prosecute or failure to comply with court orders, a district
court should consider 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 the defendants; (4) the public policy favoring
the disposition of cases on their merits; and (5) the
availability of less drastic sanctions. See In re
Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to
prosecute); Ferdik, 963 F.2d at 1260-61 (failure to
comply with court orders).
first two factors -- the public's interest in expeditious
resolution of litigation and the Court's need to manage
its docket -- weigh in favor of dismissal. Plaintiff failed
to file a motion for judgment on the pleadings, failed to
request an extension of time to do so, and failed to respond
to the Court's Order to Show Cause why this action should
not be dismissed for failure to prosecute. Given that this
case cannot move forward to resolution in the absence of
Plaintiff filing a motion for judgment on the pleadings,
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.
third factor -- prejudice to defendants -- also weighs in
favor of dismissal. A rebuttable presumption of prejudice to
defendants arises when there is a failure to prosecute
diligently. Eisen, 31 F.3d at 1452-53. That
presumption may be rebutted where a plaintiff proffers an