Case 2:20-cv-09161-SP Document 20 Filed 09/22/22 Page 1 of 5 Page ID #:763 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KIMBERLY D. BARBERA, ) Case No. 2:20-cv-09161-SP ) 12 Plaintiff, ) ) MEMORANDUM OPINION AND 13 v. ) ORDER DISMISSING ACTION ) FOR FAILURE TO PROSECUTE 14 )

KILOLO KIJAKAZI, )

15 Acting Commissioner of Social Security ) Administration, ) 16 ) Defendant. ) 17 ) ) 18 19 I. 20 PROCEEDINGS 21 On October 6, 2020, plaintiff filed a Complaint for Review of Final Decision 22 of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). On 23 October 14, 2020, the court issued its Case Management Order in this matter. The 24 Case Management Order set forth, inter alia, a schedule for filing of the Answer 25 followed by plaintiff’s Memorandum in Support of Plaintiff’s Complaint. 26 Defendant filed the Answer on August 17, 2021. Plaintiff’s Memorandum in 27 Support of Plaintiff’s Complaint was therefore due on September 21, 2021. 28 1 Case 2:20-cv-09161-SP Document 20 Filed 09/22/22 Page 2 of 5 Page ID #:764

1 On September 20, 2021, counsel for plaintiff filed a motion to withdraw as 2 attorney of record, citing a breakdown of the attorney-client relationship. The 3 court granted the motion and gave plaintiff until November 8, 2021 to retain 4 counsel if she wished and to file the Memorandum. 5 On January 24, 2022, having received neither the Memorandum nor any 6 communication from plaintiff, the court ordered plaintiff, who is now pro se, to 7 show cause in writing, not later than February 14, 2022, as to why this action 8 should not be dismissed for failure to prosecute. 9 To date, since plaintiff became pro se, the court has received no 10 communication from her. Plaintiff has filed neither the Memorandum in Support 11 of Plaintiff’s Complaint, which was due on November 8, 2021, nor a request for 12 extension of time to file the Memorandum. She also has not filed a response to the 13 January 24, 2022 Order to Show Cause, which was due on February 14, 2022, nor 14 a request for extension of time to file a response. 15 II. 16 DISCUSSION 17 It is well established that a district court may dismiss a plaintiff’s action for 18 failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link 19 v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) 20 (a court’s authority to dismiss for lack of prosecution is necessary to prevent undue 21 delays in the disposition of pending cases and to avoid congestion in the calendars 22 of the district courts); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (a 23 district court may dismiss an action for failure to comply with any order of the 24 court). But dismissal is a severe penalty and should be imposed only after 25 consideration of the relevant factors in favor of and against this extreme remedy. 26 Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam). 27 In determining whether to dismiss a case for failure to prosecute, a court 28 2 Case 2:20-cv-09161-SP Document 20 Filed 09/22/22 Page 3 of 5 Page ID #:765

1 must weigh five factors: “(1) the public’s interest in expeditious resolution of 2 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 3 defendants; (4) the public policy favoring disposition of cases on their merits[;] 4 and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 5 1440 (9th Cir. 1988) (per curiam) (internal quotation marks and citation omitted). 6 In this case, both the first factor (the public’s interest in expeditious 7 resolution of litigation) and the second factor (the court’s need to manage its 8 docket) strongly favor dismissal. After plaintiff’s counsel withdrew on September 9 20, 2021, the court gave plaintiff an extension of time to November 8, 2021 to 10 submit the Memorandum in Support of Plaintiff’s Complaint. Plaintiff failed to 11 abide by the court’s September 22, 2021 Order and did not file either the 12 Memorandum or a request for an extension of time to do so. The court then gave 13 plaintiff an additional chance, issuing an Order to Show Cause on January 24, 2022 14 giving plaintiff until February 14, 2022 to file a request for more time to deliver 15 her Memorandum. To date, plaintiff has neither filed her Memorandum, nor a 16 response to the Order to Show Cause, nor a request for more time to do either. In 17 fact, since her counsel withdrew more than nine months ago on September 20, 18 2021, plaintiff has not communicated with the court. Plaintiff’s 19 noncommunication and noncompliance with the court’s orders have “caused [this] 20 action to come to a complete halt, thereby allowing plaintiff[] to control the pace of 21 the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 22 (9th Cir. 1999) (internal quotation marks and citation omitted). Allowing plaintiff 23 to continue to do so would frustrate the public’s interest in the expeditious 24 resolution of litigation, as well as the court’s need to manage its own docket. See 25 id. 26 A rebuttable presumption of prejudice to defendants arises when a plaintiff 27 unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 1447, 28 3 Case 2:20-cv-09161-SP Document 20 Filed 09/22/22 Page 4 of 5 Page ID #:766

1 1452-53 (9th Cir. 1994). Nothing suggests that such a presumption is unwarranted 2 here. Plaintiff has neither submitted the Memorandum, requested an extension of 3 time to submit the Memorandum, nor responded to the court’s January 24, 2022 4 Order to Show Cause. See Yourish, 191 F.3d at 991-92 (“Plaintiff[’s] paltry 5 excuse for his default on the judge’s order indicates that there was sufficient 6 prejudice to Defendants from the delay . . . .”). Thus, the third factor also weighs 7 in favor of dismissal. 8 It is a plaintiff’s responsibility to move a case toward a disposition at a 9 reasonable pace and to avoid dilatory and evasive tactics. See Morris v. Morgan 10 Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). By failing to comply with the 11 court’s orders issued on September 22, 2021, and January 24, 2022, plaintiff has 12 not discharged this responsibility. In these circumstances, the public policy 13 favoring resolution of disputes on the merits does not outweigh plaintiff’s failure to 14 move this case toward a disposition at a reasonable pace. Thus, even weighing the 15 fourth factor, the balance still tilts in favor of dismissal. 16 Finally, the court attempted to avoid dismissal by: (1) cautioning plaintiff in 17 its September 22, 2021 Order that any failure to timely file a Memorandum in 18 Support of Plaintiff's Complaint or other failure to comply with the court’s orders 19 may be grounds for dismissal of this action for failure to prosecute; and (2) 20 advising plaintiff in its January 24, 2022 Order to Show Cause that failure to 21 respond to the Order, or failure to prosecute this action in accordance with the Case 22 Management Order and other court orders, may result in dismissal of this action for 23 failure to prosecute. Plaintiff has neither complied with nor responded to either of 24 the court’s orders. Nor has plaintiff otherwise communicated with the court. The 25 court notes that the instant action is being dismissed without prejudice, a 26 significantly less drastic sanction than dismissal with prejudice. Thus, the fifth 27 factor weighs in favor of dismissal. 28 4 Case 2:20-cv-09161-SP Document 20 Filed 09/22/22 Page5of5 Page |ID#:767

1 Based on the foregoing, the court finds that dismissal of this action is 2 || warranted for failure to prosecute. 3 HI. 4 ORDER 5 IT IS THEREFORE ORDERED that this action is hereby dismissed without 6 || prejudice for failure to prosecute, and Judgment shall be entered accordingly. 8 9 | DATED: September 22, 2022 LRP ‘0 SHERI PYM 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28