Jermaura Wright v. Nancy A. Berryhill ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JERMAURA WRIGHT, ) Case No. CV 19-2566-JVS (JPR) ) 12 Plaintiff, ) ) ORDER DISMISSING ACTION FOR 13 v. ) FAILURE TO PROSECUTE ) 14 ANDREW M. SAUL, ) Commissioner of Social ) 15 Security, ) ) 16 Defendant. ) ) 17 18 On April 4, 2019, Plaintiff pro se filed a Complaint 19 challenging the denial of Social Security disability benefits. 20 On April 9, the Magistrate Judge issued a case-management order, 21 which advised Plaintiff of the availability of legal help from 22 the pro se clinics. As required by the case-management order, on 23 May 13, Plaintiff filed a proof of service of the Complaint on 24 Defendant. 25 On September 23, after Defendant had failed to timely 26 appear, the Magistrate Judge ordered Plaintiff to show cause why 27 her lawsuit should not be dismissed for failure to prosecute 28 because she had not filed a request for the Clerk to enter 1 1 default. She ordered Plaintiff to move for entry of default 2 within 10 days — or no later than October 3 — or show cause in 3 writing why her lawsuit should not be dismissed. She 4 specifically warned Plaintiff that if she did not timely do 5 either, “the action will likely be dismissed.” To date Plaintiff 6 has neither moved for entry of default nor shown cause why she 7 has not. 8 Courts may dismiss lawsuits that are not diligently 9 prosecuted. See Link v. Wabash R.R., 370 U.S. 626, 629-30 10 (1962); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per 11 curiam). In determining whether to dismiss a plaintiff’s action 12 for failure to prosecute, a court must consider “(1) the public’s 13 interest in expeditious resolution of litigation; (2) the court’s 14 need to manage its docket; (3) the risk of prejudice to the 15 defendants; (4) the public policy favoring disposition of cases 16 on their merits[;] and (5) the availability of less drastic 17 sanctions.” Carey, 856 F.2d at 1440 (citation omitted). 18 Unreasonable delay creates a rebuttable presumption of prejudice 19 to the defendant that can be overcome only with an affirmative 20 showing of just cause by the plaintiff. See In re Eisen, 31 F.3d 21 1447, 1452-53 (9th Cir. 1994). 22 Here, the first, second, third, and fifth Carey factors 23 militate in favor of dismissal. In particular, Plaintiff has not 24 responded to the order to show cause, which expressly warned her 25 that if she did not her lawsuit would likely be dismissed, and 26 she therefore has not rebutted the presumption of prejudice to 27 Defendant. No less drastic sanction is available, as Plaintiff 28 has ceased communicating with the Court and as a result it cannot 2 1 |} manage its docket; the Court cannot simply leave Plaintiff’s 2 || lawsuit hanging around until one side or the other decides to 3 || take some untimely action. Although the fourth factor weighs against dismissal — as it always does — the other factors 5 |] together outweigh the public’s interest in disposing of the case its merits. See Long v. Astrue, 416 F. App’x 633, 634 (9th Cir. 2011) (upholding dismissal of Social Security action for 8 || failure to prosecute when plaintiff had not served summons and 9 || did not show cause for his failure to do so). 10 Plaintiff has failed to prosecute this action without 11 |} demonstrating good cause, and it must therefore be DISMISSED. 12 || LET JUDGMENT BE ENTERED ACCORDINGLY. 13 [, 4 14 ewe 7 iy / 15 || DATED: October 15, 2019 Y ie JAMES V. SELNA 16 U.S. DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28