1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALICIA M. MACK, Case No. 19-cv-00382-TSH

8 Plaintiff, ORDER DISMISSING CASE 9 v.

10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 I. BACKGROUND 14 Plaintiff Alicia Mack brings this action pursuant to

(g), seeking judicial 15 review of a final decision denying her claim for disability benefits. Pursuant to the January 22, 16 2019 Social Security Procedural Order issued in this case, Mack was required to file a motion for 17 summary judgment or for remand within 28 days of service of the Commissioner’s answer. ECF 18 No. 2. As the Commissioner served her answer on April 29, 2019 (ECF Nos. 12, 15), Mack’s 19 motion was originally due May 30, 2019.1 When Mack failed to file a motion of any kind, the 20 Court ordered her to show cause why the case should not be dismissed for failure to prosecute. 21 ECF No. 16. Mack responded that she inadvertently missed the deadline and “hope[d] that we can 22 settle this matter promptly.” ECF No. 17. The Court discharged the show cause order and 23 extended the deadline for Mack to file her motion. ECF No. 18. However, since that time, Mack 24 has filed a procedurally deficient attempt at a motion and three additional requests for extensions 25 of time. ECF Nos. 19, 21, 23, 25. Although the Court granted the extensions and provided 26 guidance as to how Mack should proceed, it also warned her that the most recent extension, ECF 27 1 No. 26, would be the last. Despite this, Mack has not filed a motion by the current November 15, 2 2019 deadline. Based on this procedural history, the Court finds it appropriate to dismiss this case 3 pursuant to Federal Rule of Civil Procedure 41(b). 4 II. LEGAL STANDARD 5 Under Rule 41(b), “the district court may dismiss an action for failure to comply with any 6 order of the court.” Ferdik v. Bonzelet,

(9th Cir. 1992); see also Oliva v. 7 Sullivan,

(9th Cir. 1992) (district court may dismiss sua sponte for failure to 8 meet court deadline). “The Court must weigh the following factors in determining whether a Rule 9 41(b) dismissal is warranted: “‘(1) the public’s interest in expeditious resolution of litigation; (2) 10 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 11 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 12 sanctions.’” Omstead v. Dell, Inc.,

(9th Cir. 2010) (quoting Henderson v. 13 Duncan,

(9th Cir. 1986)). Dismissal is appropriate “where at least four 14 factors support dismissal . . . or where at least three factors ‘strongly’ support dismissal.” 15 Hernandez v. City of El Monte,

(9th Cir. 1998). 16 III. DISCUSSION 17 The first two Henderson factors strongly support dismissal. First, “‘the public’s interest in 18 expeditious resolution of litigation always favors dismissal.’” Pagtalunan v. Galaza,

(9th Cir. 2002) (quoting Yourish v. Cal. Amplifier,

, 990 (9th Cir. 1999)). 20 Second, the Court’s need to manage its docket also weighs in favor of dismissal. Mack delayed 21 adjudication of the claims in this case by failing to prosecute, despite five extensions from the 22 Court. Non-compliance with procedural rules and the Court’s orders wastes “valuable time that 23 [the Court] could have devoted to other . . . criminal and civil cases on its docket.” Ferdik, 963 24 F.2d at 1261; Pagtalunan,

(“It is incumbent upon the Court to manage its docket 25 without being subject to routine noncompliance of litigants”). 26 As for the third Henderson factor, the mere pendency of a lawsuit cannot constitute 27 sufficient prejudice to require dismissal. Yourish, 191 F.3d at 991. However, “prejudice . . . may . 1

, 1228 (9th Cir. 2006). Moreover, “a presumption of prejudice arises from a 2 plaintiff’s unexplained failure to prosecute.” Laurino v. Syringa Gen. Hosp.,

, 753 3 (9th Cir. 2002). A plaintiff has the burden of demonstrating a non-frivolous reason for failing to 4 meet a court deadline. Id.; Yourish, 191 F.3d at 991. Here, despite five extensions from the Court 5 and a warning that no further extensions would be permitted, Mack failed to file a motion for 6 summary judgment or remand. Therefore, the Court concludes the third Henderson factor also 7 supports dismissal. 8 The fourth Henderson factor, that public policy favors disposition of cases on their merits, 9 normally weighs strongly against dismissal. See Hernandez,

(“[T]he public policy 10 favoring resolution on the merits clearly counsels against dismissal.”) (citation omitted); 11 Pagtalunan,

(“Public policy favors disposition of cases on the merits. Thus, this 12 factor weighs against dismissal.”). “At the same time, a case that is stalled or unreasonably 13 delayed by a party’s failure to comply with deadlines . . . cannot move forward toward resolution 14 on the merits.” In re PPA, 460 F.3d at 1228. The Ninth Circuit has “recognized that this factor 15 ‘lends little support’ to a party whose responsibility it is to move a case toward disposition on the 16 merits but whose conduct impedes progress in that direction.” Id. (quoting In re Exxon Valdez, 17

(9th Cir. 1996)). Thus, although this factor weighs against dismissal, the Court 18 also recognizes that Mack has failed to move this case toward disposition. Further, although “pro 19 se litigants in the ordinary civil case should not be treated more favorably than parties with 20 attorneys of record,” Jacobsen v. Filler,

(9th Cir. 1986), the Court has 21 recognized her pro se status and granted five extensions of time. Accordingly, this factor lends 22 little support to Mack. 23 Finally, the Court has already attempted less drastic sanctions without success, including 24 issuing a show cause order. “Though there are a wide variety of sanctions short of dismissal 25 available, the district court need not exhaust them all before finally dismissing a case.” Nevijel v. 26 N. Coast Life Ins. Co.,

(9th Cir. 1981); Gleason v. World Sav. Bank, FSB, 2013

, at *2 (N.D. Cal. July 26, 2013) (finding dismissal under Rule 41(b) appropriate 1 giving the plaintiff an additional opportunity to re-plead). Accordingly, the final factor weighs in 2 || favor of dismissal. 3 IV. CONCLUSION 4 Based on the analysis above, the Court finds at least four of the five Henderson factors 5 weigh in favor of dismissal. Thus, the Court finds Mack failed to prosecute this case and 6 || dismissal is appropriate. Typically, dismissal could be without prejudice, which preserves a 7 || plaintiffs ability to seek relief. See Ferdik,

. However, this case is a Social 8 Security appeal in which the time to file an appeal has expired (see Admin. Record at 1, ECF No. 9 14), so a dismissal with or without prejudice is effectively the same thing. Accordingly, this case 10 || be DISMISSED WITH PREJUDICE for failure to prosecute and failure to comply with the 11 Court’s deadlines and orders. 12 IT IS SO ORDERED.

14 Dated: November 22, 2019 TAA. | THOMAS S. HIXSON = 16 United States Magistrate Judge

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