Diaz v. O' Malley ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PRICILLA JESSE D., Case No.: 3:24-cv-00637-DDL 12 Plaintiff, ORDER DISMISSING CASE FOR 13 v. FAILURE TO PROSECUTE AND FOR FAILURE TO COMPLY WITH 14 MARTIN O’MALLEY, COURT ORDER 15 Defendant. 16 17 Considering Plaintiff’s multiple failures to comply with Court orders and to file her 18 opening brief, the Court hereby DISMISSES this case for failure to prosecute. 19 I. PROCEDURAL HISTORY 20 21 On April 4, 2024, Plaintiff filed a complaint against Defendant. Dkt. No. 1. On 22 May 31, 2024, the Court issued an order setting the briefing schedule for judicial review 23 of the Social Security Commissioner’s final decision. Dkt. No. 13. Per that order, Plaintiff 24 was required to file an opening brief on or before August 19, 2024. Having not received 25 Plaintiff’s opening brief by September 19, 2024, the Court issued an order to show cause. 26 Dkt. No. 14. After Plaintiff responded telephonically, the Court set a status conference on 27 September 25, 2024. Dkt. No. 15. After the status conference, the Court issued an order 28 resetting the briefing schedule and requiring Plaintiff to file her opening brief on or before 1 October 25, 2024. Dkt. No. 18. 2 Having not received Plaintiff’s opening brief by November 5, 2024, the Court issued 3 another order to show cause requiring Plaintiff to file a written explanation by not later 4 than November 15, 2024, explaining why her complaint should not be dismissed for failure 5 to file an opening brief and comply with the Court’s order. Dkt. No. 20. The Court also 6 set an order to show cause hearing by Zoom for November 18, 2024. 7 Plaintiff did not file a written explanation as required by the second order to show 8 cause. At the November 18 hearing, Defendant represented to the Court that he had been 9 in contact with Plaintiff as recently as November 15, and that Plaintiff acknowledged 10 receipt of the Court’s order and the Zoom meeting information for the hearing. Plaintiff 11 did not appear at the hearing, did not explain her lack of compliance, and, to date, has not 12 filed her opening brief. 13 II. DISCUSSION 14 15 District courts have inherent power to control their dockets and may impose 16 sanctions, including dismissal, in the exercise of that discretion. Oliva v. Sullivan, 17 958 F.2d 272, 273 (9th Cir. 1992).1 The Ninth Circuit has “repeatedly upheld the 18 imposition of the sanction of dismissal for failure to comply with pretrial procedures 19 mandated by local rules and court orders.” Thompson v. Housing Authority of City of Los 20 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). However, because dismissal is such a severe 21 remedy, courts should first weigh several factors: “(1) the public’s interest in expeditious 22 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice 23 to the defendants; (4) the public policy favoring disposition of cases on their merits. . . 24 (5) the availability of less drastic sanctions;” and (6) whether the court has given the 25 26 27 1 Unless otherwise noted, internal quotation marks, ellipses, brackets, citations, footnotes, and parallel reporter citations are omitted from citations. 28 1 || plaintiff “warning of imminent dismissal.” /d. When dismissing a Social Security appeal 2 failure to prosecute, courts should give “closer focus” to the last two factors. Oliva, 3 ||958 F.2d at 274. 4 The imposition of dismissal as a sanction is appropriate here. The public’s interest 5 ||in expeditious resolution, the court’s need to manage its docket, and the risk of prejudice 6 || to the defendant indisputably weigh in favor of dismissal. The policy favoring disposition 7 || of cases on their merits indisputably weighs against it. The Court next turns to the “closer 8 || focus” it should pay to the final two factors identified above. Oliva, 958 F.2d at 274. First, 9 || the Court has considered less drastic alternatives and found them insufficient to move the 10 ||case forward. After Plaintiff failed to timely file an opening brief by September 19, the 11 || Court both set a status conference to allow Plaintiff to be heard and sua sponte continued 12 ||her deadline to file an opening brief by 30 days. After Plaintiff again failed to timely file 13 opening brief in line with that new deadline, the Court afforded Plaintiff another 14 || opportunity to explain her lack of compliance with Court order and set a further hearing. 15 || Plaintiff did not explain, nor did she attend the hearing. Second, the Court has warned 16 || Plaintiff that failure to comply with Court orders and to file her opening brief may result 17 ||in dismissal. See Dkt. No. 14 (‘Plaintiff is advised that a failure to timely respond to this 18 || Order to Show Cause may result in the issuance of a final order dismissing the action.”); 19 || Dkt. No. 20 (same). Thus, all but one of the factors weigh in favor of dismissal here. 20 HI. 1 CONCLUSION 22 For the foregoing reasons, this case is hereby DISMISSED. 23 || IT IS SO ORDERED. 24 || Dated: November 19, 2024 _—_— 25 Tb hohe 26 “Hon. □□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 27 United States Magistrate Judge 28