Case 5:21-cv-00689-PA-SHK Document 15 Filed 02/03/22 Page 1 of 5 Page ID #:686

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 12 ALEXIS RANAE TORRES, Case No. 5:21-cv-00689-PA-SHK 13 Plaintiff, 14 v.

ORDER DISMISSING CASE

15 COMM’R OF SOC. SEC., 16 Defendant.

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18 For the following reasons, this case is DISMISSED without prejudice. 19 I. BACKGROUND 20 On April 19, 2021, Plaintiff Alexis Renae Torres (“Plaintiff”), proceeding pro 21 se, filed a Complaint (“Complaint” or “Compl.”) seeking judicial review of a 22 decision of the Commissioner of Social Security (“Commissioner” or “Defendant”). 23 Electronic Case Filing Number (“ECF No.”) 1, Compl. Thereafter, the Court issued 24 its Case Management Order (“CMO”) and, in pertinent part, ordered Plaintiff to 25 serve a memorandum in support of the Complaint (“Memorandum” or Mem.”) on 26 Defendant Social Security Administration (“Defendant”) within thirty-five days of 27 Defendant filing an Answer to Plaintiff’s Complaint. See ECF No. 6, CMO at 2. 28 Defendant filed its Answer (“Answer”) on September 29, 2021. See ECF No. 12, Case 5:21-cv-00689-PA-SHK Document 15 Filed 02/03/22 Page 2 of 5 Page ID #:687

Answer. Thus, pursuant to the CMO, Plaintiff’s Memorandum was due thirty-five 1 days later, on November 3, 2021. Plaintiff, however, failed to timely file Plaintiff’s 2 Memorandum. 3 Consequently, on January 17, 2022, Plaintiff was ordered to show cause 4 (“OSC”) by January 26, 2022 why this case should not be dismissed for failure to 5 prosecute and follow Court orders. ECF No. 14, OSC. Plaintiff was warned that 6 because Plaintiff’s Memorandum was then “over two months late, and it appear[ed] 7 that Plaintiff may have abandoned this litigation, the Magistrate Judge will 8 9 recommend that this case be dismissed if Plaintiff does not file Plaintiff’s 10 Memorandum by January 26, 2022.” Id. at 1 (emphasis in original). Plaintiff was 11 further warned that “because Plaintiff has had more than three months to prepare 12 and file Plaintiff’s Memorandum with the Court, extensions of time to file the 13 Memorandum will be granted sparingly, only for very good cause shown, and if 14 requested before the above-mentioned deadline expires.” Id. 15 As of the date of this Order, Plaintiff has not filed Plaintiff’s Memorandum, 16 moved for an extension of time to do so, or otherwise participated in this litigation. 17 II. LEGAL STANDARD 18 District courts have sua sponte authority to dismiss actions for failure to 19 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 20 R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 21 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 22 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 23 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 24 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 25 comply with court orders). 26 In deciding whether to dismiss for failure to prosecute or comply with court 27 orders, a district court must consider five factors: “(1) the public’s interest in 28 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 2 Case 5:21-cv-00689-PA-SHK Document 15 Filed 02/03/22 Page 3 of 5 Page ID #:688

risk of prejudice to the defendants; (4) the public policy favoring disposition of 1 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 2 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 3 F.3d 639, 642 (9th Cir. 2002) (setting out five factors similar to those in Henderson). 4 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 5 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 6 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting Hernandez v. 7 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations omitted) 8 9 (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte dismissal, 10 however, the fifth Henderson factor regarding the availability of less drastic 11 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 12 III. DISCUSSION 13 Here, the first two factors—public interest in expeditious resolution of 14 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 15 Despite being warned that “the Magistrate Judge will recommend that this case 16 be dismissed if Plaintiff does not file Plaintiff’s Memorandum by January 26, 17 2022[,]” Plaintiff has failed to do so or otherwise participate in this litigation. ECF 18 No. 14, OSC at 1 (emphasis in original). This failure to prosecute and follow Court 19 orders hinders the Court’s ability to move this case toward disposition and suggests 20 that Plaintiff does not intend to litigate this action diligently. 21 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 22 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 23 unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447, 1452-53 24 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 25 unwarranted in this case, considering that Plaintiff has not complied with the 26 Court’s OSC and Plaintiff has not offered any excuse for her failure to comply with 27 the Court’s OSC or to respond in a timely manner. Thus, this “prejudice” element 28 favors dismissal. 3 Case 5:21-cv-00689-PA-SHK Document 15 Filed 02/03/22 Page 4 of 5 Page ID #:689

The fourth factor—public policy in favor of deciding cases on the merits— 1 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 2 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 3 tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff 4 has not met this responsibility despite having been: (1) instructed on her 5 responsibilities; (2) granted sufficient time in which to discharge them; and 6 (3) warned of the consequences of failure to do so. Under these circumstances, 7 though this policy favors Plaintiff, it does not outweigh Plaintiff’s repeated failure to 8 9 obey Court orders or to file responsive documents within the time granted. 10 The fifth factor—availability of less drastic sanctions—also weighs in favor 11 of dismissal. The Court cannot move the case toward disposition without Plaintiff’s 12 compliance with Court orders or participation in this litigation. Despite the Court’s 13 attempt to obtain a response, Plaintiff has shown she is either unwilling or unable to 14 comply with Court orders by failing to file responsive documents and failing to 15 otherwise cooperate in prosecuting this action. Thus, the Court is not aware of any 16 lesser sanction that is available in this case. See Henderson, 779 F.2d at 1424 (“The 17 district court need not exhaust every sanction short of dismissal before finally 18 dismissing a case but must explore possible and meaningful alternatives.”) (citation 19 omitted); Roman v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 8013120, at *1 20 (C.D. Cal. Nov. 18, 2019). 21 Accordingly, dismissal of this action, without prejudice, is appropriate here. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 4 Case|5:21-cv-00689-PA-SHK Document 15 Filed 02/03/22 Page5of5 Page ID #:690

1 IV. CONCLUSION 2 For the reasons discussed above, IT IS HEREBY ORDERED that the case 3 | is DISMISSED without prejudice. 4 4 i, Cnt : — 5 Dated: February 3, 2022 PERCY ANDERSON _ 6 United States District Judge 7 | Presented by: 8 Wee ye 9 | HONORABLE SHASHI H. KEWALRAMANI 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28