United States District Court, E.D. California
ORDER DISMISSING THE ACTION FOR PLAINTIFF'S
FAILURE TO COMPLY WITH THE COURT'S ORDER AND FAILURE TO
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.
Sing Saechao initiated this action seeking judicial review of
the administrative decision denying an application for
benefits under the Social Security Act. However, Plaintiff
has failed to prosecute the action and failed to comply with
the Court's orders to file an opening brief. Accordingly,
the action is DISMISSED without prejudice.
October 2, 2017, the Court granted the request of
Plaintiff's counsel to withdraw from her representation,
based upon the assertion that “[t]he attorney-client
relationship has completely failed” and Plaintiff was
no longer communicating with his attorney. (Doc. 19)
Plaintiff was ordered to notify the Court “whether he
intends to prosecute this action, ” and “notify
the Court whether he intends to represent himself in this
matter” no later than October 13, 2017. (Id.
at 3) The Court Court's warned Plaintiff that failure to
comply with its order “may result in dismissal of this
action pursuant to Local Rule 110.” (Id.,
emphasis omitted) However, Plaintiff failed to comply with
the Court's order.
October 16, 2017, the Court issued an order to Plaintiff to
show cause why the action should not be dismissed for his
failure to prosecute and failure to comply with the
Court's order. (Doc. 20) In the alternative, Plaintiff
was directed “to file written notification of his
intent to prosecute this action” within two weeks of
the date of service. (Id. at 2) To date, Plaintiff
has failed to comply with or otherwise respond to the
Failure to Prosecute and Obey the Court's
The 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.” LR 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
Public interest and the Court's docket
case at hand, the public's interest in expeditiously
resolving this litigation and the 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 case in abeyance based upon Plaintiff's
failure to comply with the Court's orders and failure to
take action to prosecute in a timely manner. 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, and to
refrain from dilatory and evasive tactics”).
Accordingly, these factors weigh in favor of dismissal of the
Prejudice to Defendants
determine whether Defendant has been prejudiced, the Court
must “examine whether the plaintiff's actions
impair the … ability to go to trial or threaten to
interfere with the rightful decision of the case.”
Malone, 833 F.2d at 131 (citing Rubin v. Belo
Broadcasting Corp., 769 F.2d 611, 618 (9th Cir. 1985)).
Significantly, a presumption of prejudiced arises when a
plaintiff unreasonably delays the prosecution of an action.
See Anderson v. Air West, 542 F.2d 522, 524 (9th
Cir. 1976). Here, Plaintiff has not taken any action to
prosecute the action, despite being ordered by the Court to
indicate his intent to prosecute. Accordingly, this factor
weighs in favor of dismissal.
Consideration of less ...