United States District Court, D. Hawaii
AMBROSE S. FERNANDEZ, JR. Plaintiff,
STATE OF HAWAII, ET AL., Defendants.
ORDER DISMISSING REMAINING CLAIMS AND DIRECTING THAT
THE CASE BE CLOSED
E. Kobayashi United States District Judge
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”). [Dkt. no. 32.
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.]
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. 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
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.]
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.
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.
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.
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.
addition, after weighing the five dismissal factors set forth
in Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th
Cir. 2011),  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.
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.
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 ...