(SS) Triste v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 DEBORAH TRISTE, Case No. 1:19-cv-01206-EPG 10 Plaintiff, ORDER DISMISSING CASE FOR 11 FAILURE TO COMPLY WITH COURT v. ORDERS AND FAILURE TO PROSECUTE 12 ANDREW SAUL, Commissioner of Social 13 Security, 14 Defendant. 15 Plaintiff, Deborah Triste, initiated this action on August 30, 2019, by filing a complaint 16 seeking review of the decision of the Commissioner of Social Security denying Plaintiff’s 17 application for Social Security benefits. (ECF No. 1.) For the reasons discussed below, the 18 Court dismisses this case. 19 On March 13, 2020, Plaintiff’s counsel filed a motion to withdraw as counsel due to 20 Plaintiff’s failure to communicate with him. (ECF No. 14.) Counsel explained that he contacted 21 Plaintiff thirteen times between October 4, 2019 and March 3, 2020, by phone or mail, and that 22 Plaintiff has failed to respond and has not otherwise communicated with counsel. As a result, 23 Plaintiff’s counsel was unable to proceed with the prosecution of this case and accordingly 24 moved to withdraw. (Id.) 25 On March 17, 2020, the Court issued a minute order setting a hearing for April 17, 26 2020, at 10:00 a.m., on plaintiff’s counsel’s motion to withdraw as attorney of record (ECF No. 27 15). The minute order directed all parties to appear telephonically, and provided the 28 1 1 information required for telephonic appearance (id.). The minute order was served on Plaintiff 2 by U.S. Postal Service mail at her last known address (see id.). 3 On April 17, 2020, at 10:00 a.m., the Court held the telephonic hearing on the motion to 4 withdraw. Plaintiff’s counsel appeared at the hearing telephonically, but Plaintiff failed to 5 appear telephonically as ordered by the Court and did not otherwise contacted the Court or her 6 counsel. 7 Following the hearing, on April 17, 2020, the Court issued an order granting Plaintiff’s 8 counsel’s motion to withdraw. (ECF No. 18.) This order was served on Plaintiff at her last 9 known address by U.S. Postal Service mail. Because her counsel was allowed to withdraw, 10 Plaintiff is now representing herself pro se. 11 Also on April 17, 2020, the Court issued an Order to Show Case requiring Plaintiff to 12 show cause why sanctions, including dismissal of this case, should not be imposed for her 13 failure to appear at the April 17, 2020, hearing on the motion of her counsel to withdraw, and 14 her failure to prosecute this case. (ECF No. 17.) The Court required Plaintiff to file a written 15 16 show cause response within thirty days of the date of the Order to Show Cause. (Id.) The Order 17 to Show Cause was served on Plaintiff at her last known address by U.S. Postal Service mail. 18 The deadline for Plaintiff to file her written response to the Court’s Order to Show 19 Cause has passed, and Plaintiff has not filed a response or otherwise contacted the Court. 20 A court may involuntarily dismiss a case where “the plaintiff fails to prosecute or to 21 comply with [the Federal Rules of Civil Procedure] or a court order. . . .” Fed. R. Civ. P. 41(b); 22 see Hells Canyon Preservation Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 23 (a court may sua sponte involuntary dismiss a case under Rule 41(b) for a plaintiff's failure to 24 prosecute or comply with the rules of civil procedure or the court’s orders). “In determining 25 whether to dismiss an action for lack of prosecution, the district court is required to weigh 26 several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s 27 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 28 favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” 2 1 Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation 2 omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re 3 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). These 4 factors are “not a series of conditions precedent before the judge can do anything,” but a “way 5 for [the presiding] judge to think about what to do.” In re PPA, 460 F.3d at 1226 (citation 6 omitted). 7 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 8 Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quotation marks omitted). 9 Accordingly, this factor weighs in favor of dismissal. 10 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 11 determine whether the delay in a particular case interferes with docket management and the 12 public interest. . . .” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Here, the 13 Court’s inability to communicate with Plaintiff leaves the Court no other reasonable alternative 14 to address Plaintiff’s failure to respond to the Court’s order and prosecute this case. See In re 15 PPA, 460 F.3d at 1228-29; Carey, 856 F.2d at 1441. This factor accordingly weighs in favor of 16 dismissal. 17 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 18 and of itself to warrant dismissal.” Patagalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 19 991). However, “delay inherently increases the risk that witnesses’ memories will fade and 20 evidence will become stale.” Id. at 643. Plaintiff’s failure to inform the Court of her current 21 address, resulting in the inability of the Court to communicate with her, has and will continue 22 to cause a delay in this proceeding. Therefore, this third factor weighs in favor of dismissal. 23 As to the availability of lesser sanctions, at this stage in the proceedings there is little 24 available to the Court which would constitute a satisfactory lesser sanction while protecting the 25 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of 26 little use, considering the inability of the Court to communicate with Plaintiff and Plaintiff’s in 27 forma pauperis status. Further, given the nature of these proceedings, the preclusion of 28 evidence or witnesses is not available. 3 wOow 4:40 UV VELOUR YS MMIC 2 PIA ION OP AY TM 1 Finally, because public policy favors disposition on the merits, this final factor weighs 2 || against dismissal. Jd. 3 After weighing the factors, the Court finds that dismissal is appropriate. Accordingly, 4 || IT IS ORDERED that: 5 |} 1. This action is DISMISSED without prejudice because of Plaintiff's failure to obey the 6 || Court’s orders and failure to prosecute this case; and 7 2. The Clerk of Court is directed to close this case. 8 9 IT IS SO ORDERED. 10 | Dated: _May 28, 2020 [Jee ey — 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28