Opinion
No. 2:12-cv-1936 KJN
04-02-2013
DEBRA LYNN ARNOLD, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER TO SHOW CAUSE
On July 24, 2012, plaintiff Debra Lynn Arnold, proceeding without counsel, commenced this action for judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). (Dkt. No. 1.) On July 27, 2012, the court granted plaintiff's request to proceed in forma pauperis and directed service upon the Commissioner by the U.S. Marshal. (Dkt. No. 3.) The court also issued a scheduling order, which set various deadlines in the case. (Dkt. No. 4.) In particular, the scheduling order required plaintiff to file a motion for summary judgment and/or remand within 45 days from being served with a copy of the administrative record. (Dkt. No. 4 at 2.) The court also ordered the parties to complete and file the "Consent to Assignment or Request for Reassignment" form within 90 days, indicating whether the parties consent to the jurisdiction of a magistrate judge to conduct all proceedings and enter judgment in the case. (Dkt. No. 4-1.) The court's July 27, 2012 scheduling order expressly stated that failure to adhere to scheduling deadlines "may result in sanctions, including dismissal. L.R. 110. Plaintiff has an affirmative duty to prosecute this action, and failure to do so may result in a dismissal for lack of prosecution. Fed. R. Civ. P. 41(b). Requests to modify this order must be made by written motion." (Dkt. No. 4 at 3-4.)
Subsequently, on January 14, 2013, the Commissioner filed an answer and lodged the administrative transcript. (Dkt. Nos. 9, 10.) Copies of these filings were served on plaintiff via mail at her address of record. (Dkt. No. 10-15.) To date, the court's records show that plaintiff has failed to file a motion for summary judgment and/or remand, and has failed to complete and file the "Consent to Assignment or Request for Reassignment" form, in accordance with the court's orders.
Although plaintiff's case is subject to dismissal for failure to prosecute and failure to follow the court's orders, the court finds it appropriate, particularly in light of plaintiff's pro se status, to provide plaintiff with an opportunity to explain these failures and show cause why her case should not be dismissed.
Accordingly, IT IS HEREBY ORDERED that:
1. Within 28 days of this order, plaintiff shall show cause in writing why this case should not be dismissed for lack of prosecution and failure to comply with court orders.
2. Within 28 days of this order, plaintiff shall file a written statement indicating whether or not plaintiff consents to the jurisdiction of a United States Magistrate Judge for all further proceedings, including the entry of a final judgment, pursuant to 28 U.S.C. § 636(c).
3. Within 28 days of this order, plaintiff shall file a motion for summary judgment and/or remand.
4. Failure to timely file any of these required writings will result in dismissal of the action without prejudice. See Fed. R. Civ. P. 41(b); E.D. Cal. L.R. 110; see also Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a court may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders). If plaintiff does not wish to continue pursuing this case, plaintiff may alternatively seek the Commissioner's agreement to a stipulation for dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
IT IS SO ORDERED.
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KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE