Case 2:20-cv-09929-MAR Document 47 Filed 06/28/22 Page 1 of 9 Page ID #:616

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

9 10 LOUIS LEE, Case No. 2:20-cv-9929-MAR 11 Plaintiff, MEMORANDUM AND ORDER DISMISSING CASE 12 v. 13 KILOLO KIJAKAZI, 14 Acting Commissioner of Social Security, 15 Defendant. 16 17 18 I. 19 INTRODUCTION 20 On October 28, 2020, Louis Lee (“Plaintiff”), by and through counsel, filed a 21 complaint pursuant to

seeking review of a decision by the 22 Commissioner of Social Security to deny benefits. ECF Docket No. (“Dkt.”) 1. On 23 May 20, 2021, Plaintiff’s counsel filed a Motion to Withdraw as Attorney. Dkt. 24. 24 The Court granted the Motion on June 25, 2021. Dkt. 26. Plaintiff has not been able 25 to secure new representation. Over the past year, Plaintiff’s father has been 26 attempting to file various items on Plaintiff’s behalf. Dkts. 28, 30, 33, 36, 39, 41, 43, 27 46. However, Plaintiff’s father may not proceed pro se on his son’s behalf. 28 Case 2:20-cv-09929-MAR Document 47 Filed 06/28/22 Page 2 of 9 Page ID #:617

1 Therefore, for the reasons below, the Court DISMISSES this action, without 2 prejudice. 3 II. 4 BACKGROUND 5 On October 28, 2020, Louis Lee (“Plaintiff”), by and through counsel, filed a 6 complaint pursuant to

seeking review of a decision by the 7 Commissioner of Social Security to deny benefits. ECF Docket No. (“Dkt.”) 1. On 8 May 20, 2021, Plaintiff’s counsel filed a Motion to Withdraw as Attorney. Dkt. 24. 9 The Court granted the Motion on June 25, 2021. Dkt. 26. 10 On July 26, 2021, Louis Lee II, Plaintiff’s father, filed a letter on Plaintiff’s 11 behalf stating that Plaintiff has new representation. Dkt. 28. The Court rejected the 12 filing, citing Local Rule 83-2.5, “No letters to the judge,” and Local Rule 83-2.3.3, 13 which governs the withdrawal of counsel for individuals.

Local Rule 83-2.3.3 14 reads “[w]hen an attorney of record for any reason ceases to act for a party, such party 15 must appear pro se or appoint another attorney by a written substitution of attorney 16 signed by the party and the attorneys.” L.R. 83-2.3.3. On August 27, 2021, this Court 17 issued an Order instructing Plaintiff to file a notice that he intends to appear pro se or 18 file a written submission of attorney. Dkt. 29. On September 17, 2021, Plaintiff’s 19 father filed a letter on Plaintiff’s behalf indicating Plaintiff would like to proceed pro 20 se, but may be incapable of corresponding with the Court on his own. Dkt. 30. 21 On September 22, 2021, the Court issued an Order Re: Pro Se Appearance 22 instructing either: 23 (1) Plaintiff’s father or another qualified representative to file a Petition for the 24 Appointment of a Guardian Ad Litem as described by Local Rule 17-1.1; or 25 (2) Plaintiff to file a signed notice that he intends to appear pro se. 26 Dkt. 31. The Order warned that failure to respond “may result in the dismissal of 27 the action.”

(emphasis in original). The Court also reminded Plaintiff’s father 28 that assistance is available from the Court’s pro se law clinic.

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1 Neither Plaintiff nor his father filed a timely response, so on October 25, 2021, 2 the Court ordered Plaintiff to show cause why the action should not be dismissed for 3 failure to prosecute. Dkt. 32. On November 9, 2021, Plaintiff’s father filed another 4 Request for Extension of Time on Plaintiff’s behalf, explaining that Plaintiff has 5 found new counsel. Dkt. 33 at 1. The Court issued a Notice of Discrepancies and 6 Order ("NOD") explaining that no letters are to be sent to the Judge and that Plaintiff 7 may not delegate representation to any other individual. Dkt. 34; L.R. 83-2.5, 83- 8 2.2.1. Still, the Court granted the extension, warning Plaintiff’s father that “[a]ny 9 future filing submitted on Plaintiff’s behalf by someone who is not Plaintiff or 10 Plaintiff’s counsel will be rejected and will not be considered by the Court” and 11 “[f]ailure to comply will result in the dismissal of this action for failure to prosecute 12 and follow Court orders.” Dkt. 35 (emphasis in original). 13 On December 27, 2021, Plaintiff filed a Response to Order to Show Cause and 14 Notice of Intent to Proceed Pro Se. Dkt. 36. Plaintiff wrote: “I, Louis Lee III, with 15 the help of my father Louis Lee II, is asking the court to permit me to plea my case 16 ‘Pro Se’ ” and “I am asking the court to grant me Pro Se and with a motion to have 17 my father as my counsel, adviser, mentor, and with his loving and caring support.” 18

. The Court construed Plaintiff’s Motion as notice of his intent to proceed 19 pro se and ordered Plaintiff to file his Motion for Summary Judgment within thirty 20 (30) days. Dkt. 37. 21 The Court noted, however, that while Plaintiff appeared to have signed the 22 Motion himself, it also appeared that Plaintiff’s father helped prepare it, and that 23 Plaintiff’s father intended to prepare Plaintiff’s future motions for him.

The 24 Court admonished Plaintiff again that non-attorneys, including Plaintiff’s father, 25 cannot file on Plaintiff’s behalf without first applying to be appointed as Plaintiff’s 26 Guardian ad litem.

The Court warned that “any further filings indicating that they 27 were prepared ‘with the help of’ anyone who has not been appointed guardian ad 28 litem will result in the dismissal of the case for repeated failure to follow Court 3 Case 2:20-cv-09929-MAR Document 47 Filed 06/28/22 Page 4 of 9 Page ID #:619

1 orders.”

(citing Fed. R. Civ. P. 41(b)) (emphasis in original). The Court directed 2 Plaintiff’s father to Federal Rule of Procedure 17(c)(2) and Local Rule 17-1.1 for 3 guidance on applying to be appointed guardian ad litem and again reminded Plaintiff’s 4 father that assistance from the Court’s pro se clinic is available by appointment.

5 On February 9, 2022, Plaintiff filed a Petition for the appointment of his father, 6 Louis Lee II, as Guardian Ad Litem. Dkt. 39. The Court granted the Petition, but 7 explained that the Ninth Circuit has held that non-lawyers, even if appointed guardian 8 ad litem, cannot represent their child without retaining a lawyer. Dkt. 42. The Court 9 noted the action appeared subject to dismissal.

Still, because both parties had 10 already spent considerable time and resources litigating this case and because Plaintiff 11 had counsel when the action was initiated, the Court gave Plaintiff’s father one final 12 opportunity to retain counsel before dismissing the case, now that he had been 13 appointed as guardian ad litem.

The Court ordered Plaintiff’s father to file a 14 written substitution of attorney signed by both him and the new attorney(s) within 15 forty-five (45) days. The Court again warned that “[f]ailure to file a written 16 substitution will result in the action being dismissed, without prejudice.”

17 On April 6, 2022, Plaintiff’s father filed a Request for an Extension of Time. 18 Dkt. 43. The Court granted the extension but warned Plaintiff’s father that no further 19 extensions would be contemplated, given that the matter had been at a standstill for 20 nearly ten (10) months. Dkt. 44. On June 2, 2022, Plaintiff’s father filed a letter 21 indicating that, despite the diligent efforts of him and his son, they were unable to 22 secure representation, and that “the fate of this case rest[s] in [the Court’s] hands.” 23

24 III. 25 DISCUSSION 26 A. APPLICABLE LAW 27 District courts have sua sponte authority to dismiss actions for failure to 28 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 4 Case 2:20-cv-09929-MAR Document 47 Filed 06/28/22 Page 5 of 9 Page ID #:620

1 R.R. Co.,

, 629–30 (1962); Hells Canyon Pres. Council v. U.S. Forest 2 Serv.,

(9th Cir. 2005) (stating courts may dismiss an action under 3 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 4 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 5 Bonzelet,

(9th Cir. 1992) (ordering dismissal for failure to 6 comply with court orders). 7 In deciding whether to dismiss for failure to prosecute or comply with court 8 orders, a district court must consider five (5) factors: “(1) the public’s interest in 9 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 10 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 11 on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, 12 Inc.,

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

1421, 1423 (9th Cir. 1986)). 14 “[The Ninth Circuit] ‘may affirm dismissal where at least four factors support 15 dismissal . . . or where at least three factors “strongly” support dismissal.’” Yourish v. 16 California Amplifier,

(9th Cir. 1999) (quoting Hernandez v. City of 17 El Monte,

(9th Cir. 1998)). In a case involving sua sponte 18 dismissal, however, the fifth Henderson factor regarding the availability of less drastic 19 sanctions warrants special focus. Hernandez,

. 20 B. ANALYSIS 21 1. The public’s interest in expeditious resolution of litigation 22 The public’s interest in expeditious resolution of litigation generally weighs in 23 favor of dismissal. See Pagtalunan v. Galaza,

(9th Cir. 2002) (“The 24 public’s interest in expeditious resolution of litigation always favors dismissal.” 25 (quoting Yourish, above) (internal quotation omitted)). Here, though Plaintiff’s father 26 has been in consistent contact with the Court, the case has been at a standstill for 27 nearly a year, since Plaintiff’s counsel withdrew. Dkts. 24, 26. Accordingly, this factor 28 clearly weighs in favor of dismissal. 5 Case 2:20-cv-09929-MAR Document 47 Filed 06/28/22 Page 6 of 9 Page ID #:621

1 2. The Court’s need to manage its docket 2 The second factor—the Court’s need to manage its docket—likewise weighs in 3 favor of Dismissal. Courts have “the power to manage their dockets without being 4 subject to the endless vexatious noncompliance of litigants.” See Ferdik,

1261. As such, the second factor looks to whether a particular case has “consumed . . 6 . time that could have been devoted to other cases on the [Court’s] docket.” See 7 Pagtalunan,

; Edwards v. Marin Park, Inc.,

(9th 8 Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court’s 9 docket.”). 10 As discussed above, the Court has issued several orders over the past year 11 explaining that Plaintiff must either proceed pro se on his own behalf or secure 12 representation. Dkts. 29, 31, 32, 35, 37, 42, 44. Nearly all of these orders warned 13 Plaintiff and his father that the action would be dismissed if they failed to comply. 14 See Dkts. 31, 35, 37, 42, 44. Plaintiff’s failure or inability to follow Court Orders 15 hinders the Court’s ability to move this case toward disposition and suggests Plaintiff 16 cannot litigate this action diligently. Consequently, the Court’s need to manage its 17 docket favors dismissal here. 18 3. The risk of prejudice to Defendant 19 The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal. 20 A rebuttable presumption of prejudice to defendant arises when plaintiffs 21 unreasonably delay prosecution of an action. See In re Eisen,

, 1452–53 22 (9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify 23 dismissal . . . [t]he law presumes injury from unreasonable delay.”). 24 Nothing suggests such a presumption is unwarranted in this case. Given the 25 delay of nearly one (1) year, the Court finds Plaintiff’s delay in prosecuting this case to 26 be unreasonable. Thus, prejudice is presumed and weighs in favor of dismissal. See, 27 e.g., In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d at 1227 (“The law 28 . . . presumes prejudice from unreasonable delay.”). 6 Case 2:20-cv-09929-MAR Document 47 Filed 06/28/22 Page 7 of 9 Page ID #:622

1 4. Public policy favoring disposition on the merits 2 The fourth factor—public policy in favor of deciding cases on the merits— 3 ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab.

F.3d at 1228. Here, as it usually does, the fourth factor weighs against 5 dismissal. 6 5. Availability of less drastic alternatives 7 The fifth factor—availability of less drastic sanctions—also weighs in favor of 8 dismissal. A “district court need not exhaust every sanction short of dismissal before 9 finally dismissing a case, but must explore possible and meaningful alternatives.” 10 Henderson, 779 F.2d at 1424. Less drastic alternatives to dismissal include warning a 11 party that dismissal could result from failure to obey a court order. See Malone, 833 12 F.2d at 132 n.1. Further, “a district court’s warning to a party that his [or her] failure 13 to obey the court’s order will result in dismissal can satisfy the ‘consideration of 14 alternatives’ requirement.” Ferdik,

(citations omitted). 15 Here, the Court cannot move the case toward disposition with Plaintiff’s father 16 attempting to represent Plaintiff pro se. The Ninth Circuit has held that a guardian ad 17 litem cannot represent their child without retaining a lawyer. Johns v. Cty. of San 18 Diego,

, 876–78 (9th Cir. 1997). In Johns, the Ninth Circuit explained 19 that, because minors and incompetent individuals1 cannot determine their own legal 20 actions, they do not, in reality, have an individual choice to proceed pro se via their 21 guardian ad litem. Id. Furthermore, allowing guardians ad litem to proceed pro se on 22 behalf of another would violate the general principal that a non-lawyer has no 23 authority to appear as an attorney for others than himself. Id. (citing C.E. Pope 24

25 26 1 While the Ninth Circuit specifically held in Johns that a guardian ad litem cannot represent their minor child without a lawyer, Fed. R. Civ. P. 17 does not differentiate between minor children and 27 incompetent individuals. Fed. R. Civ. P. 17. Furthermore, the Ninth Circuit explicitly adopted the reasoning of the Third Circuit in Osei–Afriyie v. Medical College, which held that “it is not in the 28 interest of minors or incompetents that they be represented by non-attorneys.”

, 882– 83 (3d Cir. 1991) (emphasis added). 7 Case 2:20-cv-09929-MAR Document 47 Filed 06/28/22 Page 8 of 9 Page ID #:623

1 Equity Trust v. United States,

(9th Cir. 1987)). The Ninth Circuit 2 affirmed the district court’s dismissal of the complaint under Rule 41(b) but held that 3 the district court should have dismissed the complaint without prejudice to give the 4 guardian ad litem a chance to retain counsel or give the minor an opportunity to 5 pursue his cause of action when he turns eighteen. Johns, 114 F.3d at 876–78; see 6 also Garcia v. Colvin, No. 1:13-CV-00477-SMS,

, at *2 (E.D. Cal. 7 Apr. 10, 2013) (“Plaintiff cannot proceed pro se in this appeal of the Commissioner’s 8 denial of SSI benefits to [her daughter], but must retain an attorney to represent her 9 daughter.”). 10 The Court is sympathetic to the dilemma faced by Plaintiff and his father. 11 Neither option presented by the Ninth Circuit appears available to Plaintiff at this 12 time—Plaintiff’s father has indicated that Plaintiff is incapable of representing himself 13 in this action, and that they have not been able to secure representation despite a 14 diligent search. See Dkts. 27, 30, 33, 36, 39, 43, 46. Accordingly, Plaintiff’s father 15 proceeding pro se on Plaintiff’s behalf as guardian ad litem appears to be their only 16 option to prosecute the case. However, the Ninth Circuit was clear that this is not an 17 option, and that the district court was correct to dismiss the complaint in such a 18 scenario. 19 Still, the Court has been reluctant to dismiss the complaint solely because 20 Plaintiff is unable to represent himself and Plaintiff’s father has not been able to 21 secure counsel. Accordingly, the Court has allowed Plaintiff and his father nearly one 22 (1) year to secure new representation and has repeatedly cited various pro se 23 resources, including this Court’s pro se clinic. At this point, there appears to be no 24 less drastic alternatives than dismissal. Indeed, there appears to be no alternatives at 25 all. 26 6. Summary 27 As discussed above, four (4) of the Rule 41(b) factors weigh in favor of 28 dismissal. Finally, while dismissal should not be entered unless Plaintiff has been 8 Case 2:20-cv-09929-MAR Document 47 Filed 06/28/22 Page9of9 Page ID #:624

1 | notified dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897 2 | F.2d 1519, 1523 Oth Cir. 1990), the Court has warned Plaintiff about the potential 3 | dismissal in five (5) separate orders. See Dkts. 31, 35, 37, 42, 44. 4 Accordingly, this action is subject to dismissal. 5 IV. 6 ORDER 7 IT IS THEREFORE ORDERED THAT Petitionet’s case is DISMISSED 8 | without prejudice.

10 Dated: June 28, 2022

11 HONORABLE MARGO A. ROCCONI 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28