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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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10 ROBERTA GARCIA-GOOCH, Case No. 1:19-cv-01268-EPG

11 Plaintiff, ORDER DIRECTING THE CLERK OF THE

COURT TO ASSIGN A DISTRICT JUDGE

12 v. TO THIS CASE

13 ANDREW SAUL, Commissioner of Social FINDINGS AND RECOMMENDATION Security, RECOMMENDING THAT THIS CASE BE 14 DISMISSED WITHOUT PREJUDICE FOR Defendant. FAILURE TO EFFECTUATE SERVICE, 15 FAILURE TO COMPLY WITH THE

COURT’S ORDER, AND FAILURE TO

16 PROSECUTE

17 18 19 Plaintiff, Roberta Garcia-Gooch, is proceeding pro se and in forma pauperis in this 20 action for judicial review of an unfavorable decision of the Commissioner of the Social 21 Security Administration regarding her application for Social Security Disability Insurance 22 Benefits. For the reasons discussed below, the Court recommends that the case be dismissed 23 without prejudice. 24 Plaintiff filed the complaint initiating this action on September 11, 2019. (ECF No. 1.) 25 Under the Federal Rules of Civil Procedure, Plaintiff had 90 days after filing the complaint to 26 serve Defendant. Fed. R. Civ. P. 4(m).1 27 28 1 Rule 4(m) provides: 1 1 On February 20, 2020, after significantly more than 90 days had passed since Plaintiff 2 filed her complaint and since the Court issued the summons,2 the Court issued an order to show 3 cause (“OSC”) requiring Plaintiff to show cause why her case should not be dismissed for 4 failure to effectuate service in accordance with the 90-day time limit in Rule 4(m). (ECF No. 5 8.) 6 On March 5, 2020, Plaintiff filed her response to the OSC, explaining that she had been 7 very ill and unable to complete service during the allotted time. (ECF No. 9.) Plaintiff also 8 explained that she was searching for counsel to represent her and requested that she be granted 9 a three- to four-week extension of time to effectuate service. (Id.) 10 Based on the representations of Plaintiff, the Court discharged the order to show cause, 11 granted Plaintiff’s requested extension of time, and reminded Plaintiff that she could request 12 the assistance of the Court in effectuating service at no cost to herself. (ECF No. 10.) Plaintiff 13 was directed to file a return of service by no later than April 10, 2020, demonstrating that 14 Defendant had been served. (Id.) 15 The April 10, 2020, deadline passed, and Plaintiff did not file a return of service, 16 request additional time, or request the assistance of the Court in effectuating service. Therefore, 17 on April 15, 2020, the Court issued a second OSC, requiring Plaintiff to show cause why the 18 case should not be dismissed for failure to timely effectuate service. (ECF No. 11.) The Court 19 again reminded Plaintiff that she could request the assistance of the Court in effectuating 20 21 22 “If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its 23 own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, 24 the court must extend the time for service for an appropriate period.” 25 Fed. R. Civ. P. 4(m).

26 2 The summons was not issued until October 23, 2019. The delay between the filing of the complaint and the issuance of the summons is due to Plaintiff’s initial motion to proceed in forma pauperis (ECF No. 2), which the 27 Court denied because it was incomplete (ECF No. 3). Plaintiff filed a renewed application to proceed in forma pauperis on October 21, 2019 (ECF No. 4), which the Court granted on October 23, 2019 (ECF No. 5). The Court 28 also issued the summons on October 23, 2019 (ECF No. 6). 2 1 service at no cost to herself. The Court also instructed Plaintiff that she could file her response 2 to the OSC by U.S. mail, and provided Plaintiff with the Court’s address. (Id.) 3 The deadline for Plaintiff to file her written response to the second OSC has passed, and 4 Plaintiff has not filed a response or otherwise contacted the Court. 5 A court may involuntarily dismiss a case where “the plaintiff fails to prosecute or to 6 comply with [the Federal Rules of Civil Procedure] or a court order. . . .” Fed. R. Civ. P. 41(b); 7 see Hells Canyon Preservation Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 8 (a court may sua sponte involuntary dismiss a case under Rule 41(b) for a plaintiff's failure to 9 prosecute or comply with the rules of civil procedure or the court’s orders). “In determining 10 whether to dismiss an action for lack of prosecution, the district court is required to weigh 11 several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s 12 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 13 favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” 14 Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation 15 omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re 16 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). These 17 factors are “not a series of conditions precedent before the judge can do anything,” but a “way 18 for [the presiding] judge to think about what to do.” In re PPA, 460 F.3d at 1226 (citation 19 omitted). 20 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 21 Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quotation marks omitted). 22 Accordingly, this factor weighs in favor of dismissal. 23 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 24 determine whether the delay in a particular case interferes with docket management and the 25 public interest. . . .” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Here, Plaintiff’s 26 lack of communication with the Court leaves the Court no other reasonable alternative to 27 address Plaintiff’s failure to effectuate service, failure to comply with the Court’s order, and 28 3 1 prosecute this case. See In re PPA, 460 F.3d at 1228-29; Carey, 856 F.2d at 1441. This factor 2 accordingly weighs in favor of dismissal. 3 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 4 and of itself to warrant dismissal.” Patagalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 5 991). However, “delay inherently increases the risk that witnesses’ memories will fade and 6 evidence will become stale.” Id. at 643. Plaintiff’s failures to effectuate service, comply with 7 the Court’s order, and prosecute this case has and will continue to cause a delay in this 8 proceeding. Therefore, this third factor weighs in favor of dismissal. 9 As to the availability of lesser sanctions, at this stage in the proceedings there is little 10 available to the Court which would constitute a satisfactory lesser sanction while protecting the 11 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of 12 little use, considering Plaintiff’s lack of response or other communication with the Court and 13 her in forma pauperis status. Further, given the nature of these proceedings, the preclusion of 14 evidence or witnesses is not available. 15 Finally, because public policy favors disposition on the merits, this final factor weighs 16 against dismissal. Id. 17 After weighing the factors, the Court finds that dismissal is appropriate. Accordingly, 18 IT IS ORDERED that the Clerk of the Court is directed to assign a district judge to this 19 case. 20 IT IS RECOMMENDED that: 21 1. This action be DISMISSED without prejudice because of Plaintiff's failure to 22 effectuate service, failure to obey the Court’s order, and failure to prosecute this 23 case; and 24 2. The Clerk of Court be directed to close this case. 25 These findings and recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 27 thirty (30) days after being served with these findings and recommendations, Plaintiff may file 28 written objections with the Court. The document should be captioned “Objections to Magistrate 4 wOoOw 4:40 VV LOCYUOUINMINE ENS tO PIO Ie OY VI

1 || Judge’s Findings and Recommendations.” 2 Plaintiff is advised that failure to file objections within the specified time may result in 3 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 4 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 IT IS SO ORDERED. Dated: _Jume 8, 2020 [sf ey 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28