Opinion
CV 23-02097 PHX SMB CDB
03-05-2024
Jennifer Pena, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
TO THE HONORABLE SUSAN M. BRNOVICH:
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE
Plaintiff, through counsel, filed a Complaint seeking judicial review of a decision of the Commissioner denying Social Security disability benefits. The Commissioner filed the record on appeal on November 30, 2023. (ECF Nos. 16-26). On December 27, 2023, Plaintiff's counsel sought an extension of the time allowed to file an opening brief, and the motion was granted. (ECF Nos. 27 & 28). On January 15, 2024, Plaintiff's counsel filed a motion to withdraw, averring:
Counsel and Ms. Pena are not in agreement on the issues on the claim and the processes to be taken, and Counsel seeks to withdraw as the attorney of record. ...
Ms. Pena has been advised of my intention to file this motion to withdraw as Counsel and is aware of the briefing schedule. Ms. Pena intends to retain other Counsel, or represent herself, pro per.(ECF No. 29 at 2). Plaintiff was served with a copy of the motion to withdraw.
The motion to withdraw was granted. (ECF No. 30). In the order granting the motion to withdraw counsel was required to provide Plaintiff with a copy of the order, which included the advisement that Plaintiff's deadline for filing an opening brief was February 12, 2024. (Id.).
Because no opening brief was timely filed, on February 15, 2024, Plaintiff was allowed until March 1, 2024, to show cause why her Complaint should not be dismissed for her failure to prosecute her claims. (ECF No. 32). Plaintiff has not responded to the order to show cause.
Plaintiffs have the general duty to prosecute their case. See Fidelity Phila. Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). The Supreme Court has recognized that a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute. Link v. Wabash Railroad Company, 370 U.S. 626, 629-31 (1962). Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or a hearing. Id. at 633. In determining whether Plaintiff's failure to prosecute warrants dismissal of this case, the Court must weigh the following five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotations omitted).
The first, second, and fourth factors favor dismissal of this case. Plaintiff has not cooperated in an “expeditious resolution” of the issues. Plaintiff has failed to comply with the Court's orders, and thereby thwarted the Court's efforts to manage its docket. Defendant has not averred they are prejudiced by any delay. With regard to the fourth factor, the favoring of resolution of disputes on their merits, the Court cannot achieve a resolution of the dispute without Plaintiff's cooperation. Plaintiff has failed to assert or demonstrate why a less drastic alternative is warranted, as they have failed to timely show good cause for their failure to prosecute their claims. The failure to comply with the Court's orders is also a basis for dismissal. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (holding a district court may dismiss an action for failure to comply with any order of the Court).
Additionally, Plaintiff's prior counsel (Mr. Slepian) has a long history of conscientiously litigating colorable Social Security disability cases before the Court, and a review of the decision on appeal (ECF No. 16-3 at 19-33) does not reveal any obvious basis for relief.
Accordingly, IT IS RECOMMENDED that this matter be dismissed without prejudice.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).