United States District Court, D. Hawaii
ORDER DISMISSING CASE
Derrick K. Watson, United States District Judge
October 27, 2016, Plaintiff Xavier Flores, proceeding pro se,
filed a Complaint, Application to proceed in forma
pauperis (“IFP Application”), Motion For A
Lawyer, and Motion For Service. The Complaint attempted to
allege claims against the United States of America; Aerotek;
Allegis Group Company; and Casey Thigpen, a recruiter for
Aerotek, under Title VII, the Americans with Disabilities
Act, the Age Discrimination in Employment Act, and the
November 7, 2016 Order, the Court granted the IFP
application, denied the pending motions, and dismissed the
Complaint, but granted Flores limited leave to file an
amended complaint in accordance with the terms of the
Court's order by no later than November 30, 2016. Dkt.
No. 6. Flores has yet to file an amended complaint or respond
to the Court's November 7, 2016 Order in any other
fashion. As a result, this action is dismissed without
have the authority to dismiss actions for failure to
prosecute or for failure to comply with court orders. See
Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962)
(“The power to invoke this sanction is necessary in
order to prevent undue delays in the disposition of pending
cases and to avoid congestion in the calendars of the
District Courts.”). The Court has discretion to dismiss
a plaintiff's action for failure to comply with an order
requiring him to file an amended pleading within a specified
time period. Pagtalunan v. Galaza, 291 F.3d 639, 640
(9th Cir. 2002). Before dismissing an action for failure to
prosecute, the Court must weigh: “(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 defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits.” Id. at
642 (citing Ferdik v. Bonzelet, 963 F.2d 1258,
1260-61 (9th Cir. 1992)).
careful consideration of these factors, the Court concludes
that dismissal is warranted under the
circumstances. The Court's November 7, 2016 Order was
Because Flores fails to state a plausible claim under any of
the theories alleged, the Complaint is DISMISSED. Because
amendment may be possible, dismissal is with leave
to amend, as detailed below.
Failure to file an amended complaint by November 30, 2016
will result in the automatic dismissal of this action without
Based upon the foregoing, the Complaint is DISMISSED with
leave to amend, the IFP Application is GRANTED (Dkt. No. 2),
the Motion for A Lawyer is DENIED (Dkt. No. 3), and the
Motion for Service is DENIED as moot (Dkt. No. 4).
Flores is granted limited leave to file an amended complaint
in accordance with the terms of this order by no later than
November 30, 2016. The Court CAUTIONS Flores that failure to
file an amended complaint by November 30, 2016 will result in
the automatic dismissal of this action without prejudice.
11/7/16 Order at 12, 15-16 (Dkt. No. 6).
failure to comply with the Court's order hinders the
Court's ability to move this case forward and indicates
that he does not intend to litigate this action diligently.
See Yourish v. California Amplifier, 191 F.3d 983,
990 (9th Cir. 1999) (“The public's interest in
expeditious resolution of litigation always favors
dismissal.”). This factor favors dismissal.
risk of prejudice to a defendant is related to a
plaintiff's reason for failure to prosecute an action.
See Pagtalunan, 291 F.3d at 642 (citing
Yourish, 191 F.3d at 991). Flores offers no excuse
or explanation for his failure to file a First Amended
Complaint. When a party offers a poor excuse (or, in this
case, no excuse) for failing to comply with a court's
order, the prejudice to the opposing party is sufficient to
favor dismissal. See Yourish, 191 F.3d at 991-92.
This factor favors dismissal.
policy favoring the disposition of cases on their merits
ordinarily weighs against dismissal. However, it is the
responsibility of the moving party to prosecute the action at
a reasonable pace and to refrain from dilatory and evasive
tactics. See Morris v. Morgan Stanley & Co., 942
F.2d 648, 652 (9th Cir. 1991). Flores failed to discharge his
responsibility to prosecute this action despite the
Court's express warnings about dismissal in its prior
order. See Dkt. No. 6. Under these circumstances,
the public policy favoring the resolution of disputes on the
merits does not outweigh Flores' failure to file an
amended complaint, as directed by the Court in its November
7, 2016 Order.
Court attempted to avoid outright dismissal of this action by
granting Flores the opportunity to amend his allegations and
providing specific guidance on how to do so. See
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
(“The district court need not exhaust every sanction
short of dismissal before finally dismissing a case, but must
explore possible and meaningful alternatives.”).
Alternatives to dismissal are not adequate here, given
Flores' voluntary failure to comply with the Court's
order. Under the present circumstances, less drastic
alternatives are not appropriate. The Court acknowledges that