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Underdue v. Commissioner of Social Security

United States District Court, D. New Jersey

July 8, 2015

PAMELA D. UNDERDUE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

Pamela D. Underdue, Camden, New Jersey. Plaintiff Pro Se.

Tomasina DiGrigoli, Special Assistant U.S. Attorney Social Security Administration Office of the General Counsel, New York, New York, Counsel for Defendant.

OPINION

NOEL L. HILLMAN, District Judge.

This matter comes before the Court sua sponte based upon the failure of Plaintiff Pro Se, Pamela D. Underdue, to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and Local Civil Rule 41.1(a). For the reasons that follow, Plaintiff's complaint will be dismissed with prejudice.

I. JURISDICTION

This matter comes before the Court pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration. The statute provides that "[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action... [.] Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides[.]" 42 U.S.C. § 405(g).

II. BACKGROUND

Plaintiff filed this matter on October 18, 2013, along with a request to proceed in forma pauperis. The Court granted Plaintiff's request to proceed in forma pauperis and a summons was issued on October 25, 2013, along with a letter from the Clerk of the Court directing Plaintiff to complete a United States Marshal form so that the Marshal could complete service of process. Plaintiff never provided the United States Marshal with an address so that Defendant may be served with process, and the summons was returned unexecuted on March 13, 2014. The Court thereafter entered a Notice of Call for dismissal based upon Plaintiff's failure to prosecute this action, at which time Plaintiff was advised that the case would be dismissed for lack of prosecution pursuant to Local Civil Rule 41.1(a), unless Plaintiff demonstrated good cause by affidavit what good faith efforts to prosecute had been made.

Plaintiff responded to the Notice of Call for dismissal on July 14, 2014 by requesting that the Court re-issue summons. She did not explain what good faith efforts to prosecute the matter had been made or what further efforts were intended. Nonetheless, the Court re-issued summons, and Defendant was thereafter served with process. Defendant filed an Answer to Plaintiff's complaint on September 22, 2014.

Since that time, Plaintiff has again failed to prosecute this matter. In particular, she did not comply with Local Civil Rule 9.1(d), which required Plaintiff to file a statement within fourteen days of the Commissioner's Answer setting forth her primary contentions or arguments as to why she believes that she is entitled to relief. In addition, Plaintiff did not comply with Local Civil Rule 9.1(e), which required her to file a brief within seventy-five days of the Commissioner's Answer.

Despite Plaintiff's failure to litigate this case, the Court provided Plaintiff one final opportunity to explain her failure to prosecute this case in good faith, and to submit the briefing required under Local Civil Rule 9.1. On June 17, 2015, the Court entered an Order requiring Plaintiff to submit to the Court within ten days an affidavit setting forth what good faith efforts to prosecute the matter have been made. Plaintiff was also required to separately file a brief pursuant to Local Civil Rule 9.1(e) within ten days of the Order. The June 17, 2015 Order expressly warned Plaintiff that if she failed to comply with the Order, her complaint would be dismissed for lack of prosecution.

III. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 41(b), the Court may dismiss an action when a plaintiff fails to prosecute her case or comply with the court rules or a court order. Fed.R.Civ.P. 41(b). Local Civil Rule 41.1(a) similarly provides that the Court must dismiss a case that has been pending for more than 120 days without any proceedings. L. Civ. R. 41.1(a).

Generally, when deciding whether to dismiss a case for a plaintiff's failure to prosecute, the Court must consider the six factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). These factors are "(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other ...


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