United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO DISMISS THIS ACTION
WITHOUT PREJUDICE 
RICHARD L. PUGLISI, UNITED STATES MAGISTRATE JUDGE
November 30, 2018, at 9:30 a.m., a hearing was held on this
Court's October 31, 2018 Order to Show Cause directing
Plaintiff, pro se, to show cause, if any, why this case
should not be dismissed for failure to prosecute this action
based on his failure to appear at the Rule 16 Scheduling
Conference and failure to file a scheduling conference
statement. At the hearing, Joachim P. Cox, Esq. appeared on
behalf of Defendants. Plaintiff did not appear at the hearing
or otherwise responded to the Court's Order to Show
Cause. As discussed below, the Court FINDS and RECOMMENDS
that this action be dismissed without prejudice.
Rule of Civil Procedure 41(b) authorizes involuntary
dismissal for failure “to prosecute or to comply with
[the federal] rules or a court order.” Fed.R.Civ.P.
41(b). Rule 41(b) grants courts the authority to sua
sponte dismiss actions for failure to prosecute or for
failure to comply with court orders. See,
e.g., Oyadomari v. Hiwatashi, No. 16-00569
DKW-RLP, 2016 WL 6986140, at *1 (D. Haw. Nov. 28, 2016)
(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.”)).
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 v. Galaza, 291 F.3d 639, 642 (9th
Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d
1258, 1260-61 (9th Cir. 1992)).
dismissal is appropriate given Plaintiff's failure to
prosecute and failure to comply with court orders. First, the
public's interest in expeditious resolution of this
litigation weighs heavily in favor of dismissal because this
case has been pending for nearly two years. Second, the
Court's need to manage its docket weighs strongly in
favor of dismissal because Plaintiff's failure to
prosecute this action has interfered with the Court's
ability to manage its docket. Plaintiff failed to appear at
the scheduling conference, failed to appear at the show cause
hearing, and has taken no action to advance this case. Third,
the risk of prejudice to Defendants weighs heavily in favor
of dismissal. Plaintiff's 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)).
Fourth, less drastic sanctions are not appropriate given
Plaintiff's failure to appear before the Court. It would
be futile to recommend a lesser sanction because it would not
compel Plaintiff to take the necessary steps to prosecute
this action. Accordingly, this factor supports dismissal.
Finally, although public policy generally favors disposition
on the merits, because four of the factors weigh heavily in
favor of dismissal, and under the particular facts of this
case, the Court concludes that dismissal of this action is
the Court concludes that dismissal is appropriate, the Court
also recommends that the dismissal be without prejudice.
There are several notations on the docket that show that
attempts to serve Plaintiff by mail at the addresses provided
have been unsuccessful. See ECF Nos. 8, 9, 10, 12,
13, 14, 18. Accordingly, it is unclear whether Plaintiff has
received actual notice of the Court's orders and filings
in this action. Additionally, Defendants indicated in their
Scheduling Conference Statement that a search on the state
court judiciary system shows a pending criminal matter on
Maui involving Zachary Parente. See ECF No. 15 at 4.
In light of these circumstances, the Court RECOMMENDS that
the dismissal of this action be without prejudice.
Court FINDS AND RECOMMENDS that this action be DISMISSED
WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure
41(b) for failure to prosecute.
SO FOUND AND RECOMMENDED.
 Within fourteen (14) days after a
party is served with a copy of the Findings and
Recommendation, that party may, pursuant to 28 U.S.C. §
636(b)(1), file written objections in the United States
District Court. A party must file any objections within the
fourteen-day period allowed if that party wants to have
appellate review of the Findings and ...