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Fernandez v. State

United States District Court, D. Hawaii

May 22, 2017

AMBROSE S. FERNANDEZ, JR. Plaintiff,
v.
STATE OF HAWAII, ET AL., Defendants.

          ORDER DISMISSING REMAINING CLAIMS AND DIRECTING THAT THE CASE BE CLOSED

          Leslie E. Kobayashi United States District Judge

         On November 19, 2015, pro se Plaintiff Ambrose S. Fernandez, Jr. (“Plaintiff”) filed a document that has been construed as his Complaint. [Dkt. no. 1.] On March 14, 2017, this Court issued its Order Granting in Part and Denying in Part Defendant the State of Hawaii's Motion for Judgment on the Pleadings, or in the Alternative, to Dismiss for Failure to Prosecute (“3/14/17 Order”).[1] [Dkt. no. 32.[2]

         The 3/14/17 Order dismissed all of Plaintiff's tort claims against all Defendants with prejudice, but denied the State's Motion to the extent that the State sought judgment on the pleadings as to Plaintiff's claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182, et seq., and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794. [3/14/17 Order at 8-9.] The 3/14/17 Order also noted that Plaintiff appeared to have abandoned the case, and this Court ordered Plaintiff to appear at a hearing on May 1, 2017 to show cause why the case should not be dismissed for failure to prosecute (“Show Cause Hearing”). [Id. at 10-11.]

         The Clerk's Office served the 3/14/17 Order on Plaintiff via first class mail to an address on Wilder Avenue (“Wilder Address”). Plaintiff's address of record in this case, however, is an address on University Avenue (“University Address”). See Complaint at pg. 1. Plaintiff never notified this district court that he changed his address.[3] The Clerk's Office attempted to serve the Amended Rule 16 Scheduling Order, filed January 17, 2017 (“1/17/17 Scheduling Order”), on Plaintiff at his University Address, but it was returned by the United States Post Office (“the Post Office”). The Post Office provided the Wilder Address as Plaintiff's current address. [Dkt. no. 31.] The Clerk's Office resent the 1/17/17 Scheduling Order to Plaintiff at the Wilder Address, and the Clerk's Office served the 3/14/17 Order on Plaintiff at the Wilder Address. Neither of those two orders were returned by the Post Office, and Plaintiff is presumed to have received them.[4]

         On April 20, 2017, this Court issued an entering order rescheduling the Show Cause hearing for May 15, 2017 (“4/20/17 EO”). [Dkt. no. 34.] The Clerk's Office attempted to serve the 4/20/17 EO on Plaintiff via certified mail, return receipt requested, at the Wilder Address. [Dkt. nos. 35, 36.] However, on May 16, 2017, it was returned as undeliverable. [Dkt. no. 38.]

         Plaintiff failed to appear at the Show Cause Hearing. [Minutes, filed 5/15/17 (dkt. no. 37).] This Court also notes that Plaintiff did not file any document responding to the 3/14/17 Order. In fact, Plaintiff did not file a response to the State's Motion, has not filed anything in this case since January 15, 2016, and failed to appear before the magistrate judge at either the scheduling conference on February 29, 2016 or the trial re-setting conference on January 17, 2017. See 3/14/17 Order at 1, 4.

         Plaintiff's failure to appear at the May 15, 2017 Show Cause Hearing hypothetically could be due to the fact that he did not receive the 4/20/17 EO. However, there is no indication in the record that Plaintiff attempted to appear on May 1, 2017 - the original date specified for the Show Cause Hearing in the 3/14/17 Order. Further, Plaintiff did not notify this district court either that the University Address was no longer valid or that the Wilder Address was no longer valid, as Local Rule 83.1 required him to do. Because of Plaintiff's failure to submit the required notices that he changed his address, this Court has no way to contact him.

         Viewing the record in this case as a whole, this Court FINDS that Plaintiff has failed to show good cause for his failure to prosecute this case. Fed.R.Civ.P. 41(b) states:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as an adjudication on the merits.

         The State did file a motion to dismiss the action for failure to prosecute, and Plaintiff has not shown good cause for his failure to prosecute the case.

         In addition, after weighing the five dismissal factors set forth in Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011), [5] this Court FINDS that the public interest in the expeditious resolution of this litigation and this Court's interest in managing the docket strongly outweigh the policy favoring disposition of cases on the merits. Moreover, this Court FINDS that Defendants will not be prejudiced by dismissal because only the State - which requested dismissal for failure to prosecute - has appeared in this action, and there are no less drastic alternatives available at this time.

         This Court therefore CONCLUDES that all of Plaintiff's remaining claims in this case - i.e. his ADA claim and his Section 504 claim - must be DISMISSED because of Plaintiff's failure to prosecute the case. The dismissal of Plaintiff's remaining claims is WITHOUT PREJUDICE to the filing of a separate case asserting these claims because this Court CONCLUDES that there is no basis in the record for a dismissal with prejudice.

         This Court emphasizes that, although Plaintiff may choose to bring his ADA and Section 504 claims in a new case, he has no remaining claims, and he cannot file an amended complaint in this case. This Court ...


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