Cicala v. The Commissioner of Social Security ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 JOSEPH CICALA, Case No. 2:24-cv-00821-BNW 5 Plaintiff, ORDER 6 v. 7 COMMISSIONER OF SOCIAL SECURITY, 8 Defendant. 9 10 On May 2, 2024, the Court screened Plaintiff’s complaint and directed him to file an 11 amended complaint by June 3, 2024. ECF No. 5. The Court warned Plaintiff that failure to do so 12 may result in this action being dismissed. Id. Plaintiff has failed to file an amended complaint by 13 the Court’s deadline. 14 The law permits a district court to dismiss an action based on a party’s failure to comply 15 with a court order. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for 16 failure to comply with an order requiring amendment of complaint). In determining whether to 17 dismiss an action on this ground, the court must consider: (1) the public’s interest in expeditious 18 resolution of litigation, (2) the court’s need to manage its docket, (3) the risk of prejudice to the 19 defendants, (4) the public policy favoring disposition of cases on their merits, and (5) the 20 availability of less-drastic alternatives. In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 21 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 22 1987)). 23 The first two factors, the public’s interest in expeditiously resolving this litigation and the 24 Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s claims. The third 25 factor, risk of prejudice to Defendants, also weighs in favor of dismissal because a presumption of 26 injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court 27 or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 1 The fifth factor requires the Court to consider whether less-drastic alternatives can be used 2 || to correct the party’s failure that brought about the Court’s need to consider dismissal. Courts 3 || “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 4 || explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 5 || Cir. 1986). Because this action cannot proceed without Plaintiff’s active participation in the case, 6 || the only alternative is to enter another order setting another deadline. The circumstances here do 7 || not indicate that Plaintiff needs additional time. Therefore, setting another deadline is not a 8 || meaningful alternative. So, the fifth factor favors dismissal. 9 In balance, the factors above favor a recommendation of dismissal. See Hernandez v. City 10 || of El Monte, 138 F.3d 393 (9th Cir. 1998) (holding that dismissal is proper where at least four 11 || factors support dismissal or where at least three factors “strongly” support dismissal). 12 IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice for 13 || failure to comply with the Court’s Order (ECF No. 5). 14 15 DATED: June 14, 2024 16 Kx gum la we Een BRENDA WEKSLER , 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28