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Garcia v. Saul

United States District Court, D. New Mexico

July 22, 2019

JOHN ANTHONY GARCIA, Plaintiff,
v.
ANDREW SAUL, Commissioner of SOCIAL SECURITY, [1]Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION [2]

          JOHN F. ROBBENHAAR UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court sua sponte. For the reasons set forth below, the Court recommends that Plaintiff's Complaint be DISMISSED WITHOUT PREJUDICE.

         I. Background

         On July 9, 2018, Plaintiff filed a Complaint against the Social Security Commissioner related to the Commissioner's decision denying Plaintiff's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits. Doc. 1. The case was assigned to Magistrate Judge Kevin R. Sweazea. On November 14, 2018, Defendant filed an Answer. Doc. 13. On November 15, 2018, Judge Sweazea entered an Order Setting Briefing Schedule and Plaintiff's Motion to Remand was due on January 11, 2019. Doc. 17.

         On January 11, 2019, the case was reassigned to United States District Judge James A. Parker and United States Magistrate Judge Laura Fashing as the trial and pretrial judges. Doc. 19. On January 16, 2019, Judge Parker entered an Order of Reference referring the case to Judge Fashing. Doc. 21. On January 17, 2019, Judge Fashing entered an Order Extending Briefing Schedule, and Plaintiff's Motion to Remand was due on February 5, 2019. Doc. 22.

         On March 12, 2019, Judge Fashing entered an Order to Show Cause because Plaintiff failed to file his Motion to Remand by the deadline set forth in her Order Extending Briefing Schedule. Doc. 23. Judge Fashing ordered Plaintiff to show cause by March 26, 2019, why his case should not be dismissed for failure to comply with the Court's Order Extending Briefing Schedule. Id. On March 22, 2019, Plaintiff filed a response to the Order to Show Cause. Doc. 24.

         On April 29, 2019, Judge Fashing held a hearing on the Order to Show Cause. Doc. 27. Plaintiff appeared pro se. Id. Kathryn Bostwick appeared on behalf of Defendant. Id. Plaintiff explained he was unable to secure legal counsel. Id. The Court provided Plaintiff with telephone numbers for two organizations that could help Plaintiff find an attorney.[3] Id. Plaintiff agreed to contact them. Id. The Court agreed to quash the Order to Show Cause and gave Plaintiff an additional thirty days, through May 29, 2019, to find an attorney. Id. The Court stated that

[i]f an attorney enters an appearance, the Court will set a scheduling order for the briefing on this case. If an attorney does not enter on appearance by May 29, 2019, the Court will still set a scheduling order, and [Plaintiff] will have to proceed pro se and file his ow motion to reverse/remand.

Id. (emphasis in original). Judge Fashing advised Plaintiff that if he did not file a motion to remand on time, she would recommend that his case be dismissed. Id. The Court noted that Plaintiff stated he understood the Court's instructions and had no questions. Id.

         On May 1, 2019, the case was reassigned to Magistrate Judge John F. Robbenhaar as the pretrial judge. Doc. 29. On June 3, 2019, Judge Robbenhaar entered an Order Setting Briefing Schedule pursuant to Judge Fashing's instructions, and Plaintiffs Motion to Remand was due July 3, 2019. Doc. 30. Plaintiff has failed to file his motion.

         II. Analysis

         Because Plaintiff has failed to comply with the Court's Briefing Schedule (Doc. 30), and because Judge Fashing advised Plaintiff that his failure to file a motion to remand on time would result in recommending that his case be dismissed (Doc. 27), the Court recommends that Plaintiffs Complaint be dismissed without prejudice for failure to prosecute. AdvantEdge Business Group v. Thomas E. Mestmaker & Assoc, 552 F.3d 1233, 1236 (10th Cir. 2009) (“[a] district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules”) (quoting Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002)); see also Nasious v. Two Unknown B.I.C.E Agents, 492 F.3d 1158, 1161 (10th Cir. 2007) (when dismissing a case without prejudice, “a district court may, without abusing its discretion, enter such an order without attention to any particular procedures”).

         III. Recommendation

         For the foregoing reasons, the Court finds that Plaintiff has failed to comply with the Court's Briefing Schedule and to prosecute his case. The Court, therefore, recommends that ...


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