United States District Court, D. Hawaii
ORDER DISMISSING CASE
Derrick K. Watson United States District Judge
Brian Shaughnessy, proceeding pro se, filed a Complaint
against WellCare Health Insurance, Inc., dba Ohana Health
Plan (“Ohana”), alleging claims for violation of
42 U.S.C. § 1983, breach of contract, and emotional
distress based on the denial of medical services and benefits
under his Medicaid plan administered by Ohana. In a February
16, 2017 Order, the Court granted Ohana's Motion to
Dismiss the Complaint, but granted Shaughnessy limited leave
to file an amended complaint in accordance with the terms of
the Court's Order by no later than March 17, 2017. Dkt.
No. 18 (2/16/17 Order). Shaughnessy has yet to file an
amended complaint or respond to the Court's February 16,
2017 Order in any other fashion. As a result, this action is
dismissed without prejudice.
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 February 16, 2017 Order was clear:
The Court GRANTS Shaughnessy leave to file an amended
complaint, consistent with the terms of this Order, by March
17, 2017. He is granted limited leave to attempt to cure the
deficiencies noted above with respect to Count I (Section
1983); Count II (breach of contract); and Count III
(emotional distress claims-NIED and/or IIED).
* * * *
Claims dismissed with prejudice may not be re-alleged in an
amended complaint. Claims dismissed without prejudice that
are not re-alleged in an amended complaint may be deemed
voluntarily dismissed. . . . The amended complaint must
designate that it is the “First Amended
Complaint” and may not incorporate any part of the
original Complaint. Rather, any specific allegations must be
retyped or rewritten in their entirety. Failure to file an
amended complaint by March 17, 2017 will result in automatic
dismissal of this action without prejudice.
* * * *
For the foregoing reasons, Ohana's Motion to Dismiss is
GRANTED. Shaughnessy is granted limited leave to file an
amended complaint, consistent with the terms of this Order.
Shaughnessy is cautioned that failure to file an amended
complaint by March 17, 2017 will result in dismissal of this
action without prejudice.
2/16/17 Order at 16-17.
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). Shaughnessy 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). Shaughnessy failed to
discharge his responsibility to prosecute this action despite
the Court's express warnings about dismissal in its prior
order. See 2/16/17 Order at 16-17. Under these
circumstances, the public policy favoring the resolution of