United States District Court, E.D. California
ORDER DISMISSING THE ACTION WITH PREJUDICE FOR
PLAINTIFF'S FAILURE TO PROSECUTE AND FAILURE TO COMPLY
WITH THE COURT'S ORDER
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
Norma Ruiz Pacheco initiated this action seeking judicial
review of the administrative decision to deny her application
for Social Security benefits. However, Plaintiff failed to
comply with the Court's orders and failed to prosecute
this action by filing an opening brief. Accordingly, the
action is DISMISSED with prejudice.
Norma Ruiz Pacheco initiated this action by filing a
complaint on June 10, 2016, seeking judicial review of the
decision to denying her application for Social Security
benefits. (Doc. 1) On June 20, 2016, the Court entered its
Scheduling Order, setting forth the applicable deadlines.
(Doc. 4) Pursuant to the Scheduling Order, the parties
exchanged confidential letter briefs, with Defendant serving
the Commissioner's response on April 5, 2017. (Docs. 14,
Court's Scheduling Order, Plaintiff was ordered to file
an opening brief addressing “each claimed error”
by the administrative law judge within thirty days of the
date of service of the Commissioner's response.
(See Doc. 4 at 2, explaining the applicable briefing
deadlines) Accordingly, Plaintiff was to file an opening
brief in this action no later than May 5, 2017. (See
id.) However, she failed to file an opening brief, and
did not request an extension of time.
Court issued an order to show cause on May 10, 2017,
directing Plaintiff “to show cause within ten days of
the date of service of this Order why the action should not
be dismissed for her failure to prosecute or to follow the
Court's Order, or in the alternative to file an opening
brief.” (Doc. 16 at 2) More than ten days have passed,
Plaintiff has not responded to the order to show cause, or
filed an opening brief.
Failure to Prosecute and Obey the Court's
Local Rules, corresponding with Fed.R.Civ.P. 11, provide:
“Failure of counsel or of a party to comply with . . .
any order of the Court may be grounds for the imposition by
the Court of any and all sanctions . . . within the inherent
power of the Court.” Local Rule 110. “District
courts have inherent power to control their dockets, ”
and in exercising that power, a court may impose sanctions
including dismissal of an action. Thompson v. Housing
Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.
1986). A court may dismiss an action with prejudice, based on
a party's failure to prosecute an action or failure to
obey a court order, or failure to comply with local rules.
See, e.g. Ferdik v. Bonzelet, 963
F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to
comply with an order); Malone v. U.S. Postal
Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal
for failure to comply with a court order); Henderson v.
Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal
for failure to prosecute and to comply with local rules).
Discussion and Analysis
determine whether to dismiss an action for failure to
prosecute and failure to obey a Court order, the Court must
consider several factors, including: “(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.”
Henderson, 779 F.2d at 1423-24; see also
Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d
case at hand, the public's interest in expeditiously
resolving this litigation and the Court's interest in
managing the docket weigh in favor of dismissal. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir.
1999) (“The public's interest in expeditious
resolution of litigation always favors dismissal”);
Ferdik, 963 F.2d at 1261 (recognizing that district
courts have inherent interest in managing their dockets
without being subject to noncompliant litigants). This Court
cannot, and will not hold, this action in abeyance given
Plaintiff's failure to comply with the deadlines set
forth by the Court and failure to prosecute. See Morris
v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.
1991) (explaining a plaintiff has the burden “to move
toward... disposition at a reasonable pace”). The risk
of prejudice to the defendant also weighs in favor of
dismissal, since a presumption of injury arises from the
occurrence of unreasonable delay in prosecution of an action.
See Anderson v. Air West, 542 F.2d 522, 524 (9th
Plaintiff was warned that failure to comply with the
scheduling order “may result in sanctions.” (Doc.
4 at 4) In addition, in the Order to Show Cause, the Court
reminded Plaintiff that an action may be dismissed
“based on a party's failure to prosecute an action
or failure to obey a court order.” (Doc. 16 at 2) In
addition, the Court advised: “If Plaintiff fails to
comply with the deadline as ordered, the Court will find that
Plaintiff has abandoned the action, and dismiss the
matter.” (Id., emphasis in original)
Thus, Plaintiff had adequate warning that dismissal would
result from her noncompliance with the Court's orders and
failure to prosecute the action by filing an opening brief,
and these warnings satisfy the requirement that the Court
consider less drastic measures. Ferdik, 963 F.2d at
1262; Henderson, 779 F.2d at 1424. Indeed, the Court
need only warn a party once that the matter would be
dismissed for failure to comply with its orders.
Id.; see also Titus v. Mercedes Benz of North
America, 695 F.2d 746, 749 n.6 (3d Cir. 1982)
(identifying a “warning” to a party is an
these facts, the policy favoring disposition of cases on
their merits is outweighed by the factors in favor of
dismissal. See Malone, 833 F.2d at 133, n.2
(explaining that although “the public policy favoring
disposition of cases on their merits . . . weighs against
dismissal, it is not sufficient to outweigh the other four