Case 5:20-cv-00227-JFW-MAA Document 13 Filed 01/19/22 Page 1 of 7 Page ID #:25

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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MONICA MERCADO, Case No. 5:20-cv-00227-JFW (MAA)

12 Plaintiff, ORDER OF DISMISSAL 13 v.

14 COMMISSIONER OF SOCIAL

SECURITY,

15 16 Defendant. 17

18 I. SUMMARY OF PROCEEDINGS 19 On February 4, 2020, Plaintiff, identified in the Complaint as “Monica 20 Mercado on behalf of [B.Z.M.1],” initiated this action for review of a final decision 21 of the Commissioner of Social Security denying an application for Supplemental 22 Security Income (“SSI”). (Compl. 1, ECF No. 1.) On February 4, 2020, Plaintiff 23 also filed a Request to Proceed In Forma Pauperis (ECF No. 3), which the Court 24 granted on February 5, 2020 (ECF No. 6). 25 On February 7, 2020, the Court issued an order (“Order-1”) stating that 26 Mercado is not the SSI claimant and therefore lacks statutory or constitutional 27 1 Although the minor child is named in the Complaint, the Court uses the child’s 28 initials to protect his privacy. Case 5:20-cv-00227-JFW-MAA Document 13 Filed 01/19/22 Page 2 of 7 Page ID #:26

1 standing to prosecute this case. (Order-1, at 1, ECF No. 7.) The Court stated that 2 Mercado or her minor child could cure this defect by filing a First Amended 3 Complaint (“FAC”) no later than twenty-one days after the date of Order-1—i.e., 4 February 28, 2020. (See id. at 2.) The Court also noted that Mercado had not 5 applied to be appointed as guardian ad litem for B.Z.M., and cautioned that a non- 6 attorney parent or guardian generally cannot bring a lawsuit on behalf of a minor 7 without retaining a lawyer. (Id.) 8 On March 5, 2020, in the absence of a filed FAC or response to Order-1, the 9 Court issued an Order to Show Cause (“Order-2”), ordering Mercado to show cause 10 by March 26, 2020, why the action should not be dismissed without prejudice 11 (1) for Mercado’s lack of constitutional and/or statutory standing to prosecute this 12 action, and (2) for failure to prosecute and failure to comply with a court order 13 pursuant to Federal Rule of Civil Procedure 41(b). (Order-2, at 1–2, ECF No. 8.) 14 On April 27, 2020, the action was stayed pursuant to Order of the Chief 15 Judge No. 20-074. (ECF No. 9.) Upon the imposition of the stay, all deadlines 16 were suspended until the day the stay was lifted. (Id.) On April 15, 2021, the stay 17 was lifted pursuant to Order of the Chief Judge No. 21-37. 18 On April 26, 2021, in the absence of a response to Order-1 or Order-2, the 19 Court issued another Order to Show Cause (“Order-3”), ordering Mercado to show 20 cause no later than May 17, 2021, why the action should not be dismissed without 21 prejudice (1) for Mercado’s lack of constitutional and/or statutory standing to 22 prosecute this action, and (2) for failure to prosecute and failure to comply with a 23 court order pursuant to Federal Rule of Civil Procedure 41(b). (Order-3, at 1–2, 24 ECF No. 11.) 25 On October 29, 2021, in the absence of a response to Order-1, Order-2, or 26 Order-3, the Court issued an Order Re: Representation of B.Z.M. by Counsel 27 (“Order-4”). (Order-4, ECF No. 12.) The Court ordered Mercado to find a lawyer 28 to represent B.Z.M. within thirty days after Order-4—i.e., November 29, 2021—or

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1 risk dismissal of the action with prejudice. (Id. at 2.) The Court cautioned “that 2 failure to comply with this Order may result in a dismissal of Complaint 3 without prejudice for failure to prosecute and/or failure to comply with a court 4 order pursuant to Federal Rule of Civil Procedure 41(b).” (Id.) 5 To date, Mercado has failed to respond to Order-1, Order-2, Order-3, or 6 Order-4. Indeed, Mercado has not communicated with the Court since initiating 7 this action on February 4, 2020. 8 9 II. LEGAL STANDARD 10 District courts may dismiss cases sua sponte for failure to prosecute or for 11 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 12 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 13 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that the 14 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 15 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 16 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 17 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 18 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. 19 USPS, 833 F.2d 128, 130 (9th Cir. 1987)). 20 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 21 delay.’” Omstead v. Dell, 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson 22 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). In addition, the court must weigh 23 the following factors in determining whether a Rule 41(b) dismissal is warranted: 24 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 25 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 26 availability of less drastic alternatives; and (5) the public policy favoring disposition 27 of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 28 The Ninth Circuit will “affirm a dismissal where at least four factors support

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1 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 2 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 3 191 F.3d 983, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 4 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 5 bad faith.” Id. 6 7 III. ANALYSIS 8 A. The Public’s Interest in Expeditious Resolution and the Court’s 9 Need to Manage Its Docket 10 The first and second factors (the public’s interest in expeditious resolution of 11 litigation and the Court’s need to manage its docket)2 weigh in favor of dismissal. 12 “Orderly and expeditious resolution of disputes is of great importance to the rule of 13 law.” In re: Phenylpropanolamine, 460 F.3d at 1227. “The public’s interest in 14 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 15 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 16 inherent power to control their dockets,” In re: Phenylpropanolamine, 460 F.3d at 17 1227 (quoting Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 18 1986)), and “are best suited to determine when delay in a particular case interferes 19 with docket management and the public interest.” Yourish, 191 F.3d at 990 20 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 21 Plaintiff has failed to respond to Order-1, Order-2, Order-3, and Order-4, and 22 otherwise has not participated in this action since February 4, 2020. The Court 23 concludes that Plaintiff’s inaction and lack of communication with the Court 24 constitute willful unreasonable delay. See, e.g., Thomas v. Maricopa Cnty. Jail, 25 265 F. App’x. 606, 607 (9th Cir. 2008) (holding that district court did not abuse its 26 discretion by dismissing pro se prisoner lawsuit for failure to respond to a court 27 2 The first two factors are usually reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994).

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1 order for almost three months). Plaintiff’s noncompliance also interferes with the 2 public’s interest in the expeditious resolution of this litigation and hinders the 3 Court’s ability to manage its docket. See In re: Phenylpropanolamine, 460 F.3d at 4 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about when a 5 delay becomes unreasonable ‘because it is in the best position to determine what 6 period of delay can be endured before its docket becomes unmanageable.”) (quoting 7 In re Eisen, 31 F.3d at 1451)). The first and second factors favor dismissal. 8 9 B. Risk of Prejudice to Defendants 10 The third factor (risk of prejudice to the defendants) also weighs in favor of 11 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 12 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 13 the case.” In re: Phenylpropanolamine, 460 F.3d at 1227 (quoting Adriana Int’l 14 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)). “The law also presumes 15 prejudice from unreasonable delay.” Id. The risk of prejudice to a defendant is 16 related to a plaintiff’s reason for failure to prosecute an action. Pagtalunan, 291 17 F.3d at 642. “Whether prejudice is sufficient to support an order of dismissal is in 18 part judged with reference to the strength of the plaintiff’s excuse for the default.” 19 Malone, 833 F.2d at 131. 20 Plaintiff has refused to respond to Order-1, Order-2, Order-3, and Order-4, 21 without explanation. As “a presumption of prejudice arises from the plaintiff’s 22 unexplained failure to prosecute,” the third factor favors dismissal. See Hernandez 23 v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998). 24 25 C. Availability of Less Drastic Alternatives 26 The fourth factor (the availability of less drastic alternatives) also supports 27 dismissal. “The district court need not exhaust every sanction short of dismissal 28 ///

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1 before finally dismissing a case, but must explore possible and meaningful 2 alternatives.” Henderson, 779 F.2d at 1424. 3 The Court considered and implemented less drastic alternatives prior to 4 dismissal. The Court explicitly warned Plaintiff that failure to comply with Order-4 5 may result in the dismissal of the Complaint without prejudice for failure to 6 prosecute and/or failure to comply with a court order pursuant to Federal Rule of 7 Civil Procedure 41(b). (Order-4, at 2.) See In re: Phenylpropanolamine, 460 F.3d 8 at 1229 (“Warning that failure to obey a court order will result in dismissal can 9 itself meet the ‘consideration of alternatives’ requirement.”). The Court also 10 extended Plaintiff’s deadline to respond three times, from February 28, 2020 to 11 March 26, 2020; to May 17, 2021; and finally to November 29, 2021. (Order-1, 12 Order-2, Order-3, Order-4.) See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 13 1992) (holding that the district court’s allowance of an additional thirty days for 14 plaintiff to file an amended complaint was an attempt at a less drastic sanction). 15 The fourth factor weighs in favor of dismissal. 16 17 D. Public Policy Favoring Disposition on the Merits 18 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 19 merits.” Pagtalunan, 291 F.3d at 643. However, “a case that is stalled or 20 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 21 toward resolution on the merits.” In re: Phenylpropanolamine, 460 F.3d at 1228. 22 Thus, “this factor lends little support to a party whose responsibility it is to move a 23 case towards disposition on the merits but whose conduct impedes progress in that 24 direction.” Id. (internal quotation marks omitted). The case has been stalled by 25 Plaintiff’s failure to respond to the Court’s orders (Order-1, Order-2, Order-3, and 26 Order-4). Still, the public policy favoring the resolution of disputes on the merits is 27 strong and, under the circumstances, outweighs Plaintiff’s noncompliance and 28 inaction.

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1 E. Dismissal Without Prejudice 2 In summary, Plaintiff’s failure to respond to Order-1, Order-2, Order-3, and 3 || Order-4, and failure to otherwise participate in this lawsuit since February 4, 2020, 4 || constitute willful unreasonable delay. Four of the Rule 41(b) dismissal factors 5 || weigh in favor of dismissal, whereas only one factor weighs against dismissal. 6 || “While the public policy favoring disposition of cases on their merits weighs 7 || against [dismissal], that single factor is not enough to preclude imposition of this 8 || sanction when the other four factors weigh in its favor.” Rio Props., Inc. v. Rio 9 || Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). The Court concludes that 10 || dismissal of this action for failure to prosecute and to comply with Court orders is 11 || warranted, but, consistent with Rule 41(b) and this Court’s exercise of its 12 || discretion, the dismissal is without prejudice. 13 14 | IV. CONCLUSION 15 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 16 || prejudice. No further filings shall be accepted under this case number. 17 18 19 || DATED: January 19, 2022 20 = ] JOHN F. WALTER 5 NITED STATES DISTRICT JUDGE

22 || Presented by: 23 . emis 25 || UNITED STATES MAGISTRATE JUDGE 26 27 28