Opinion
Court No. 2:03-CV-313TC.
September 27, 2004
PAUL M. WARNER, United States Attorney, SCOTT BATES, Assistant United States Attorney, Attorneys for Defendant.
Deana Ertl-Lombardi, Regional Chief Counsel, Region VIII, Laura Ridgell-Boltz, Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, Denver, Colorado, of Counsel.
DEFENDANT'S MOTION TO DISMISS
The Commissioner of Social Security (the Commissioner), by her attorney, the undersigned Assistant United States Attorney for the District of Utah, respectfully moves this Court, to dismiss this action pursuant to the provisions of Fed.R.Civ.P. 41(b), based on plaintiff's failure to prosecute or to comply with the court's orders. As grounds therefor, the defendant states:
1. Plaintiff, represented by John Borsos, filed her Complaint initiating this action on April 2, 2003.
2. The undersigned filed the defendant's Answer to the Complaint on July 28, 2003.
3. On September 18, 2003, this Court ordered plaintiff to file a brief on all issues by October 27, 2003, and ordered defendant to respond by December 1, 2003.
4. On October 31, 2003, plaintiff moved to amend the scheduling order; on November 3, 2003, this Court granted plaintiff's motion and ordered plaintiff to file a brief on all issues by January 5, 2004, and ordered defendant to respond by February 9, 2004.
5. January 23, 2004, plaintiff moved to amend the scheduling order; on January 26, 2004, this Court granted plaintiff's motion and ordered plaintiff to file a brief on all issues by February 16, 2004, and ordered defendant to respond by March 16, 2004.
6. On March 5, 2004, plaintiff moved to amend the scheduling order; on March 9, 2004, this Court granted plaintiff's motion and ordered plaintiff to file a brief on all issues by March 16, 2004, and ordered defendant to respond by April 16, 2004.
7. On March 24, 2004, plaintiff moved to amend the scheduling order; on March 26, 2004, this Court granted plaintiff's motion and ordered plaintiff to file a brief on all issues by March 26, 2004, and ordered defendant to respond by April 28, 2004.
8. On March 30, 2004, defendant moved to amend the scheduling order; on March 31, 2004, this Court granted plaintiff's motion and ordered plaintiff to file a brief on all issues by June 30, 2004, and ordered defendant to respond by July 30, 2004.
9. On July 20, 2004, plaintiff moved to amend the scheduling order; on July 22, 2004, this Court granted plaintiff's motion and ordered plaintiff to file a brief on all issues by September 10, 2004, and ordered defendant to respond by October 11, 2004.
10. Plaintiff has not complied with the Court's July 20, 2004 order; his brief has not yet been filed.
11. Fed.R.Civ.P. 41(b) provides that the defendant may move for dismissal of an action "[f]or failure of the plaintiff to prosecute or to comply with . . . any order of court. . . ."
12. As demonstrated here, plaintiff has failed to comply with the Court's scheduling order and, as a result, has failed to prosecute this case. Under such circumstances, it is appropriate for the Court to dismiss the case. Fed.R.Civ.P. 41(b); see, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 630-631 (1962);Mann v. Lewis, 108 F.3d 145, 147 (8th Cir. 1997) (recognizing "the importance of the expeditious treatment of cases in the district courts" and finding dismissal without prejudice appropriate where the plaintiff had failed to comply with the district court's orders).
13. Accordingly, the defendant asks this Court to grant her motion to dismiss without prejudice.