United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR
FAILURE TO PROSECUTE
Kenneth J. Mansfield United States Magistrate Judge.
Plaintiffs Darvon Peter Silviera and Gail Lynn Palaualelo
(collectively, “Plaintiffs”) initiated this
action on April 25, 2017, against Defendants Bank of America,
N.A., Peter T. Stone, Derek C. Wong, Steven Idemoto,
(collectively, “Defendants”). See ECF
Court originally set the Rule 16 Scheduling Conference for
June 26, 2017. See ECF No. 5. On June 16, 2017, at
Plaintiffs' request to allow additional time to serve
Defendants, the Court continued the Rule 16 Scheduling
Conference to August 28, 2017. See ECF No. 8. On
August 28, 2017, in lieu of holding the Rule 16 Scheduling
Conference, the Court held a status conference with
Plaintiffs regarding their failure to serve the Complaint.
See ECF No. 9. The Court continued the Rule 16
Scheduling Conference to September 28, 2017. Id.
September 28, 2017, the Court held a further status
conference regarding service, again in lieu of holding the
Rule 16 Scheduling Conference. ECF No. 10. Plaintiffs were
not able to articulate any efforts they had made or intended
to make to serve the Complaint. The Court thus advised
Plaintiffs that it would be issuing an order to show cause
regarding their failure to serve the Complaint. Id.
Court issued the Order to Show Cause on September 29, 2017,
ordering Plaintiffs to show cause in writing by October 23,
2017, why the case should not be dismissed without prejudice.
See ECF No. 11. Plaintiffs have not filed a response
to the Order to Show Cause, nor have there been any further
filings in this matter.
must serve a proper summons and complaint on Defendants for
the Court to have jurisdiction over the Defendants.
See Fed. R. Civ. P. 4; Travelers Cas. & Sur.
Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir.
2009) (“A federal court is without personal
jurisdiction over a defendant unless the defendant has been
served in accordance with Fed.R.Civ.P. 4.” (citations
omitted)). Notwithstanding multiple status conferences to
discuss service, and an Order to Show Cause why this action
should not be dismissed for lack of service, Plaintiffs have
still not established that they have properly served any of
the Defendants. Nor have Plaintiffs provided the Court any
reason for their failure to do so.
within the inherent power of the court to sua sponte
dismiss a case for lack of prosecution. Ash v.
Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984); see
also Pagano v. OneWest Bank, F.S.B., CV. No.
11-00192 DAE-RLP, 2012 WL 74034, at *6 (D. Haw. Jan. 10,
2012) (citing 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 must weigh five
factors to determine whether to dismiss a case for lack of
prosecution or failure to comply with a court order: (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 the defendant; (4) the
availability of less drastic alternatives; and (5) the public
policy favoring the disposition of cases on their merits
(“Pagtalunan factors”). Pagtalunan
v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
1992)). For the reasons below, the Court finds that dismissal
of the claims against Defendants is appropriate given
Plaintiffs' failure to prosecute.
the public's interest in expeditious resolution of this
litigation weighs in favor of dismissal because this case has
been pending since April 2017, and Plaintiffs have failed to
perfect service on Defendants. Second, the Court's need
to manage its docket weighs strongly in favor of dismissal
because Plaintiffs' failure to prosecute this action has
interfered with the Court's ability to manage its docket.
To date, Plaintiffs fail to provide sufficient reasoning as
to why they are unable to properly serve Defendants.
the risk of prejudice to Defendants weighs heavily in favor
of dismissal. Defendants will suffer prejudice if this case
continues without Plaintiffs effecting service.
Plaintiffs' inaction has impaired Defendants' ability
to proceed to trial and threatens to interfere with the
resolution of this case. See Pagtalunan, 291 F.3d at
642 (citing Malone v. United States Postal Serv.,
833 F.2d 128, 131 (9th Cir. 1987)).
less drastic sanctions are not appropriate. The Court has
made multiple attempts to assist Plaintiffs in effecting
service, and has issued an Order to Show Cause warning
Plaintiffs that failure to respond would result in a
recommendation that this action be dismissed without
prejudice. See ECF No. 11 at 3. Nonetheless, the
record reflects that Plaintiffs have neither served
Defendants nor responded to this Court's Order to Show
Cause. The Court thus finds that it would be futile to
recommend a lesser sanction because Plaintiffs have
demonstrated that such action would not compel them to take
the necessary steps to prosecute this action.
the Court acknowledges that public policy favors disposition
of cases on their merits. Thus, this final factor weighs
against dismissal. This Court finds, however, that because
four of the factors weigh in favor of dismissal, this factor
is outweighed. Accordingly, dismissal is appropriate.
this Court's finding that Plaintiffs have failed to
prosecute this case and have failed to respond to this
Court's Order to Show Cause, the Court finds that these
failures do not provide sufficient grounds to support
dismissal with prejudice. The Court finds that four of the
five Pagtalunan factors weigh in favor of dismissal;
however, under these circumstances, these factors do not
weigh “strongly” in favor of dismissal. Cf.
In re Lagmay, CIV. NO. 15-00166 DKW/RLP, 2015 WL
5970667, at *2 (D. Haw. Oct. 13, 2015), aff'd sub
nom., Lagmay v. Nobriga, No. 15-17068, 2016 WL
7407294 (9th Cir. Dec. 22, 2016) (concluding that dismissal
with prejudice is appropriate when at least three of the
Pagtalunan factors weighed “strongly” in