Bernard M. v. Kijakazi
- Kang
- 3:23-cv-02911
- U.S. District Court · Northern District of California
- 3
In Bernard M. v. Kijakazi, Magistrate Judge Kang ordered Bernard M. to explain his missed brief deadline or face possible dismissal.
Bernard M., the self-represented plaintiff, was required to explain his missed deadline or file his opening brief by November 27, 2023. The case was not dismissed by this order, but dismissal remained a possible later action.
What happened
Bernard M. v. Kijakazi is a Social Security appeal brought by Bernard M., who is representing himself. The Commissioner filed the administrative record, and Bernard M.’s opening brief was due September 11, 2023.
Bernard M. did not file the brief or request more time. The court ordered him to explain the missed deadline or file the brief by November 27, 2023, and warned that failing to comply could lead to dismissal of the case.
Magistrate Judge Peter H. Kang issued an order to show cause rather than dismissing the case at that time.
The detailed version
- Bernard M. v. Kijakazi · No. 3:23-cv-02911
- Kang
- Nov. 8, 2023
Background
Bernard M. filed this Social Security appeal under 42 U.S.C. § 405(g). He is representing himself. The parties consented to have a magistrate judge handle the case, including entering a final judgment.
The court granted Bernard M.’s application to proceed without paying the filing fee and authorized service of the complaint on the Commissioner. The Commissioner answered by filing a certified copy of the administrative record on August 10, 2023. Under the court’s scheduling order, Bernard M.’s opening brief was due September 11, 2023. He had not filed it and had not asked the court for an extension.
Court’s analysis
The court explained that Federal Rule of Civil Procedure 41(b) allows a court to dismiss a case when a plaintiff fails to prosecute it or fails to comply with court orders. The court stated that Bernard M.’s failure to file the opening brief and comply with the scheduling deadline provided grounds for dismissing the entire case if he did not justify the failure.
Order
The court did not dismiss the case at this time. Instead, it ordered Bernard M. to file a written response by November 27, 2023, explaining why the case should not be dismissed. The court also allowed him to file the overdue opening brief by that date instead of submitting a separate explanation. It warned that failure to comply with the order could result in further action, including dismissal of the entire case under Rule 41(b).
Magistrate Judge Peter H. Kang issued the order to show cause. The opinion does not state what happened after the November 27, 2023 deadline.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.