United States District Court, N.D. California
ALICIA M. MACK, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER DISMISSING CASE
S. HIXSON UNITED STATES MAGISTRATE JUDGE.
Alicia Mack brings this action pursuant to 42 U.S.C. §
405(g), seeking judicial review of a final decision denying
her claim for disability benefits. Pursuant to the January
22, 2019 Social Security Procedural Order issued in this
case, Mack was required to file a motion for summary judgment
or for remand within 28 days of service of the
Commissioner's answer. ECF No. 2. As the Commissioner
served her answer on April 29, 2019 (ECF Nos. 12, 15),
Mack's motion was originally due May 30,
2019. When Mack failed to file a motion of any
kind, the Court ordered her to show cause why the case should
not be dismissed for failure to prosecute. ECF No. 16. Mack
responded that she inadvertently missed the deadline and
“hope[d] that we can settle this matter
promptly.” ECF No. 17. The Court discharged the show
cause order and extended the deadline for Mack to file her
motion. ECF No. 18. However, since that time, Mack has filed
a procedurally deficient attempt at a motion and three
additional requests for extensions of time. ECF Nos. 19, 21,
23, 25. Although the Court granted the extensions and
provided guidance as to how Mack should proceed, it also
warned her that the most recent extension, ECF No. 26, would
be the last. Despite this, Mack has not filed a motion by the
current November 15, 2019 deadline. Based on this procedural
history, the Court finds it appropriate to dismiss this case
pursuant to Federal Rule of Civil Procedure 41(b).
Rule 41(b), “the district court may dismiss an action
for failure to comply with any order of the court.”
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.
1992); see also Oliva v. Sullivan, 958 F.2d 272,
273-74 (9th Cir. 1992) (district court may dismiss sua sponte
for failure to meet court deadline). “The Court must
weigh the following factors in determining whether a Rule
41(b) dismissal is warranted: “‘(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.'”
Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir.
2010) (quoting Henderson v. Duncan, 779 F.2d 1421,
1423 (9th Cir. 1986)). Dismissal is appropriate “where
at least four factors support dismissal . . . or where at
least three factors ‘strongly' support
dismissal.” Hernandez v. City of El Monte, 138
F.3d 393, 399 (9th Cir. 1998).
first two Henderson factors strongly support
dismissal. First, “‘the public's interest in
expeditious resolution of litigation always favors
dismissal.'” Pagtalunan v. Galaza, 291
F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. Cal.
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Second,
the Court's need to manage its docket also weighs in
favor of dismissal. Mack delayed adjudication of the claims
in this case by failing to prosecute, despite five extensions
from the Court. Non-compliance with procedural rules and the
Court's orders wastes “valuable time that [the
Court] could have devoted to other . . . criminal and civil
cases on its docket.” Ferdik, 963 F.2d at
1261; Pagtalunan, 291 F.3d at 642 (“It is
incumbent upon the Court to manage its docket without being
subject to routine noncompliance of litigants”).
the third Henderson factor, the mere pendency of a
lawsuit cannot constitute sufficient prejudice to require
dismissal. Yourish, 191 F.3d at 991. However,
“prejudice . . . may . . . consist of costs or burdens
of litigation.” In re Phenylpropanolamine (PPA)
Prod. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006).
Moreover, “a presumption of prejudice arises from a
plaintiff's unexplained failure to prosecute.”
Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753
(9th Cir. 2002). A plaintiff has the burden of demonstrating
a non-frivolous reason for failing to meet a court deadline.
Id.; Yourish, 191 F.3d at 991. Here,
despite five extensions from the Court and a warning that no
further extensions would be permitted, Mack failed to file a
motion for summary judgment or remand. Therefore, the Court
concludes the third Henderson factor also supports
fourth Henderson factor, that public policy favors
disposition of cases on their merits, normally weighs
strongly against dismissal. See Hernandez, 138 F.3d
at 399 (“[T]he public policy favoring resolution on the
merits clearly counsels against dismissal.”) (citation
omitted); Pagtalunan, 291 F.3d at 643 (“Public
policy favors disposition of cases on the merits. Thus, this
factor weighs against dismissal.”). “At the same
time, a case that is stalled or unreasonably delayed by a
party's failure to comply with deadlines . . . cannot
move forward toward resolution on the merits.” In
re PPA, 460 F.3d at 1228. The Ninth Circuit has
“recognized that this factor ‘lends little
support' to a party whose responsibility it is to move a
case toward disposition on the merits but whose conduct
impedes progress in that direction.” Id.
(quoting In re Exxon Valdez, 102 F.3d 429, 433 (9th
Cir. 1996)). Thus, although this factor weighs against
dismissal, the Court also recognizes that Mack has failed to
move this case toward disposition. Further, although
“pro se litigants in the ordinary civil case should not
be treated more favorably than parties with attorneys of
record, ” Jacobsen v. Filler, 790 F.2d 1362,
1364 (9th Cir. 1986), the Court has recognized her pro se
status and granted five extensions of time. Accordingly, this
factor lends little support to Mack.
the Court has already attempted less drastic sanctions
without success, including issuing a show cause order.
“Though there are a wide variety of sanctions short of
dismissal available, the district court need not exhaust them
all before finally dismissing a case.” Nevijel v.
N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir.
1981); Gleason v. World Sav. Bank, FSB, 2013 WL
3927799, at *2 (N.D. Cal. July 26, 2013) (finding dismissal
under Rule 41(b) appropriate where the court previously
attempted the lesser sanction of issuing an order to show
cause and giving the plaintiff an additional opportunity to
re-plead). Accordingly, the final factor weighs in favor of
on the analysis above, the Court finds at least four of the
five Henderson factors weigh in favor of dismissal.
Thus, the Court finds Mack failed to prosecute this case and
dismissal is appropriate. Typically, dismissal could be
without prejudice, which preserves a plaintiffs ability to
seek relief. See Ferdik, 963 F.2d at 1262. However,
this case is a Social Security appeal in which the time to
file an appeal has expired (see Admin. Record at 1,
ECF No. 14), so a dismissal with or without prejudice is
effectively the same thing. Accordingly, this case be
DISMISSED WITH PREJUDICE for failure to
prosecute and failure to comply with the Court's
deadlines and orders.