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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 ALFREDO R.,1 Case No. SACV 19-1640-KK 11 Plaintiff, 12 v. ORDER DISMISSING ACTION WITHOUT PREJUDICE 13 ANDREW SAUL, Commissioner of Social Security, 14 Defendant. 15 16 17 I. 18 SUMMARY 19 Plaintiff Alfredo R. (“Plaintiff”) has filed a Complaint (“Complaint”) 20 challenging the decision of the Commissioner of Social Security (“Defendant”) 21 denying his application for Title II Disability Insurance Benefits. The parties have 22 consented to the jurisdiction of the undersigned United States Magistrate Judge, 23 pursuant to

(c). On April 24, 2020, the Court issued an Order to 24 Show Cause why the action should not be dismissed for failure to prosecute and 25 comply with Court orders because Plaintiff had not served his portion of the Joint 26 Stipulation on Defendant. Plaintiff has not filed a response. Thus, for the reasons set 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) 1 forth below, this action is DISMISSED without prejudice for failure to prosecute and 2 comply with court orders. 3 II. 4 BACKGROUND 5 On August 26, 2019, Plaintiff, who was at the time represented by counsel but 6 is currently proceeding pro se,2 filed a Complaint pursuant to

(g) 7 challenging the decision of the Commissioner of Social Security denying his 8 application for Title II Disability Insurance Benefits. Dkt. 1. 9 On August 27, 2019, the Court issued a Case Management Order (“CMO”) 10 setting various dates, including the date by which Plaintiff was required to serve his 11 portion of a Joint Stipulation on Defendant and the date by which the parties were to 12 file a Joint Stipulation with the Court. Dkt. 9. 13 On January 21, 2020, Defendant filed an Answer to the Complaint and lodged 14 a copy of the Certified Administrative Record with the Court. Dkts. 15, 17. Pursuant 15 to the Court’s CMO, Plaintiff was required to serve his portion of the Joint 16 Stipulation on Defendant no later than February 25, 2020 and the Joint Stipulation 17 was due on April 21, 2020. See dkt. 9. 18 On March 31, 2020, Defendant filed a Notice and Declaration of Non-Receipt 19 of Plaintiff’s Portion of the Joint Stipulation. Dkt. 21. 20 On April 24, 2020, the Court issued an Order to Show Cause (“OSC”) why the 21 action should not be dismissed for failure to prosecute and comply with Court orders 22 because Plaintiff had not served his portion of the Joint Stipulation on Defendant as 23

24 2 On February 11, 2020, the Court issued an Order granting Plaintiff’s counsel’s Motion to Withdraw as Attorney of Record and ordered Plaintiff’s counsel to serve 25 Plaintiff with a copy of such order by February 14, 2020. Dkt. 18. On February 28, 2020, Plaintiff’s counsel filed a proof of service, indicating that on February 13, 2020, 26 she served Plaintiff with a copy of the Court’s order and notified Plaintiff “Please pay close attention to the briefing schedule. The court is giving you until February 25, 27 2020, to send your portion of your argument to the governments’ attorney . . . I will 1 required by the Court’s August 27, 2019 CMO. Dkt. 22. The Court granted Plaintiff 2 until May 15, 2020 to respond to the OSC.

The Court explicitly warned: 3 “Plaintiff is cautioned that failure to timely file a response to this Order will be 4 deemed by the Court consent to the dismissal of this action with prejudice.” 5

(bold in original). Plaintiff has not filed a response. 6 III. 7 THE COMPLAINT IS DISMISSED 8 FOR PLAINTIFF’S FAILURE TO PROSECUTE 9 A. APPLICABLE LAW 10 It is well established that district courts have sua sponte authority to dismiss 11 actions for failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 12 41(b); Omstead v. Dell, Inc.,

(9th Cir. 2010) (stating standard 13 applied in dismissal for failure to prosecute); Hells Canyon Preservation Council v. 14 U.S. Forest Serv.,

(9th Cir. 2005) (stating courts may dismiss an 15 action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s 16 failure to prosecute or comply with the Federal Rules of Civil Procedure or the court’s 17 orders); Ferdik v. Bonzelet,

(9th Cir. 1992) (ordering dismissal 18 for failure to comply with court orders). 19 In deciding whether to dismiss for failure to prosecute or comply with court 20 orders, a district court must consider five factors: “‘(1) the public’s interest in 21 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 22 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 23 on their merits; and (5) the availability of less drastic sanctions.’” Omstead,

(quoting Henderson v. Duncan,

(9th Cir. 1986)). 25 B. ANALYSIS 26 In the instant action, the first two factors -- public interest in expeditious 27 resolution of litigation and the court’s need to manage its docket -- weigh in favor of 1 Defendant. This failure to prosecute and follow court orders hinders the Court’s 2 ability to move this case toward disposition and suggests Plaintiff does not intend to 3 litigate this action diligently. 4 The third factor -- prejudice to defendant -- also weighs in favor of dismissal. 5 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 6 unreasonably delays prosecution of an action. See In re Eisen,

, 1452-53 7 (9th Cir. 1994). Nothing suggests such a presumption is unwarranted in this case. 8 The fourth factor -- public policy in favor of deciding cases on the merits -- 9 ordinarily weighs against dismissal. It is a plaintiff’s responsibility, however, to move 10 towards disposition at a reasonable pace, and avoid dilatory and evasive tactics. See 11 Morris v. Morgan Stanley,

(9th Cir. 1991). Plaintiff has not 12 discharged this responsibility despite having been: (1) instructed on his 13 responsibilities; (2) granted sufficient time in which to discharge them; and (3) warned 14 of the consequences of failure to do so. See dkts. 9, 22. Under these circumstances, 15 the policy favoring resolution of disputes on the merits does not outweigh Plaintiff’s 16 failure to obey court orders or to file responsive documents within the time granted. 17 The fifth factor -- availability of less drastic sanctions -- also weighs in favor of 18 dismissal. The Court cannot move the case toward disposition without Plaintiff’s 19 compliance with court orders or participation in this litigation. Plaintiff has shown he 20 is either unwilling or unable to comply with court orders by filing responsive 21 documents or otherwise cooperating in prosecuting this action. 22 Finally, while dismissal should not be entered unless a plaintiff has been 23 notified dismissal is imminent, see West Coast Theater Corp. v. City of Portland, 897

, 1523 (9th Cir. 1990), the Court has warned Plaintiff about the possibility of 25 dismissal, see dkt. 22, Order. 26 Accordingly, in light of the factors set forth above and because Plaintiff has 27 been afforded multiple opportunities to avoid dismissal, the action is dismissed for 1 IV. 2 ORDER 3 IT IS THEREFORE ORDERED that Judgment be entered dismissing this 4 action without prejudice and without leave to amend. 5

6 Dated: May 27, 2020

7 HONORABLE KENLY KIYA KATO United States Magistrate Judge 8

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