United States District Court, D. Hawaii
CURTIS P. CHUN, Plaintiff,
HAWAII STATE FAMILY COURT RULES UNDER THE HONORABLE JUDGE STEVEN M. NAKASHIMA, Defendant.
ORDER DISMISSING CASE
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
June 13, 2018 Order, the Court granted Chun's Application
to proceed in forma pauperis and dismissed his First
Amended Complaint with limited leave to amend. Dkt. No. 12
(6/13/18 Order). On July 12 and again on July 26, 2018, the
Court granted Chun's requests for extensions of time,
Dkt. Nos. 16 and 20, and twice extended the deadline for
filing his Second Amended Complaint, ultimately until August
13, 2018, cautioning him that “no further extensions
will be granted absent good cause shown” and that the
failure the file an amended complaint by the deadline may
“result in the dismissal of this action without
prejudice.” Dkt. Nos. 17 and 21. Despite the extensions
of time, Chun has yet to file an amended complaint or respond
to the Court's June 13, 2018 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.”). More specifically, 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)). Upon careful consideration of these factors, the
Court concludes that dismissal without prejudice is warranted
under the circumstances.
Court's 6/13/18 Order was clear:
[B]ecause Chun fails to state a plausible claim for relief,
the FAC is DISMISSED. Because amendment of certain claims
may be possible, Chun is granted limited leave to
attempt to cure the deficiencies noted in this Order, with
Portions of the FAC are dismissed without prejudice, and Chun
is granted leave to amend to attempt to cure the deficiencies
identified above. Chun's claims against Judge Nakashima
are dismissed with prejudice. The Court cautions
Chun that he may not re-allege those claims in any amended
The amended complaint must designate that it is the
“Second Amended Complaint” and may not
incorporate any part of the prior complaint. Rather, any
specific allegations must be retyped or rewritten in their
entirety. Chun may include only one claim per count. Failure
to file an amended complaint by July 16,
2018 will result in the automatic dismissal of this
action without prejudice.
Based upon the foregoing, Chun's IFP Application is
GRANTED (Dkt. No. 7), and the FAC is DISMISSED with limited
leave to amend (Dkt. No. 9).
Chun is granted leave to file an amended complaint in
accordance with the terms of this Order by July 16,
2018. To be clear, claims dismissed with
prejudice may not be re-alleged in an amended complaint.
The Court CAUTIONS Chun that failure to file an amended
complaint by July 16, 2018 may result in the
automatic dismissal of this action without prejudice.
Order at 12-14.
12, 2018, the Court granted Chun's request and extended
the deadline for filing his Second Amended Complaint to July
30, 2018. “The Court caution[ed] Chun that failure to
file an amended complaint by 7/30/18 may result in the
automatic dismissal of this action without prejudice.”
7/12/18 Entering Order, Dkt. No. 17. The Court granted Chun a
further extension on July 26, 2018, and advised that
“[n]o further extensions will be granted absent good
cause shown. The Court caution[ed] Chun that failure to file
an amended complaint by 8/13/18 may result in the automatic
dismissal of this action without prejudice.” 7/26/18
Entering Order, Dkt. No. 21. Chun's failure to comply
with the 6/13/18 Order, and the 7/12/18 and 7/26/18 Entering
Orders hinders the Court's ability to move this case
forward and indicates that he does not intend to litigate