United States District Court, D. Hawaii
ORDER (1) DISMISSING CERTAIN CLAIMS WITHOUT
PREJUDICE; AND (2) DIRECTING SERVICE OF THE
Derrick K. Watson, United Suites District Judge.
October 19, 2018, Plaintiff Jessica Elaine Colon, proceeding
pro se, filed a Complaint against Century 21 Properties
Hawaii (Century 21), Abe Lee, and Sandra Sakuma (Century 21,
Lee, and Sakuma, together, “Defendants”). Dkt.
No. 1. Colon also filed an application to proceed in
forma pauperis (“IFP Application”). Dkt. No.
2. In a November 6, 2018 Order, the Court granted Colon's
IFP Application, dismissed certain claims brought in the
Complaint with leave to amend, and found one claim to have
been sufficiently alleged against Century 21 to survive
dismissal at this juncture. Dkt. No. 5. The November 6, 2018
Order gave Colon until December 7, 2018 to file an amended
complaint, which she failed to do.
December 17, 2018, a Scheduling Conference was held before
Magistrate Judge Kevin Chang. Dkt. No. 6. During that
conference, Colon informed the Magistrate Judge that she had
not received a copy of the November 6, 2018 Order. As a
result, Colon was given a copy of the November 6, 2018 Order
at the conference, advised to file an amended complaint, and
told that the Scheduling Conference would be continued until
February 19, 2019. At the conference, Colon also confirmed
that the Court already had her correct address and used that
address in serving the November 6, 2018 Order. A day later,
in light of Colon's statements at the Scheduling
Conference, this Court allowed Colon additional time to file
an amended complaint until January 7, 2019. Dkt. No. 7. The
Court, again, forewarned Colon that failure to file an
amended complaint by January 7, 2019 may result in the
dismissal of those claims the Court dismissed without
prejudice in the November 6, 2018 Order. The docket reflects
that a copy of the Order, setting January 7, 2019 as the
deadline to file an amended complaint, was mailed to Colon on
December 18, 2018. In addition, the docket does not reflect
that the foregoing mail has been returned as undeliverable.
as of the date of this Order, which is more than two weeks
after the January 7, 2019 deadline, Colon has failed to file
an amended complaint or otherwise respond to the November 6,
2018 Order. In light of the record of this case, the Court
can only conclude that Colon has chosen to proceed with the
Complaint she filed at the outset of this case and does not
intend to amend her claims.
that being so, because Colon set forth one cause of action
against Century 21 that survived screening of the Complaint,
Colon may proceed with that claim. At the same time, because
Colon has not attempted to amend claims that were
insufficiently pled, those claims are now dismissed without
further leave to amend. In addition, because Colon failed to
sufficiently allege any claims against Lee and Sakuma, those
defendants are dismissed from this action.
the Court rules as follows:
(1) Defendants Lee and Sakuma are DISMISSED from this action;
(2) Colon's claims of race, gender, and religious
discrimination under Title VII of the Civil Rights Act of
1964 are DISMISSED WITHOUT FURTHER LEAVE TO AMEND;
(3) Colon's claim of hostile work environment under Title
VII is likewise DISMISSED WITHOUT FURTHER LEAVE TO AMEND;
(4) Colon's claim of retaliation under Title VII against
Lee and Sakuma is DISMISSED WITHOUT FURTHER LEAVE TO AMEND;
(5) Colon may proceed with her claim of retaliation under
Title VII against Century 21.
Colon has been granted leave to proceed in forma
pauperis, and because her retaliation claim against
Century 21 may proceed, the Court finds that service of the
Summons and Complaint is appropriate. To facilitate service,
the Court ORDERS as follows:
Clerk's Office is directed to send to Plaintiff: one copy
of the Complaint, Dkt. No. 1; one summons; one USM-285 form;
one Notice of Lawsuit and Request for Waiver of Service of
Summons form (AO 398); two (2) Waiver of Service of Summons
forms (AO 399); an instruction sheet; and a copy of this
Order. The Clerk shall send a copy of this Order to the U.S.
shall complete the forms as directed and submit the following
documents to the U.S. Marshal in Honolulu, Hawaii: a
completed USM-285 form; a copy of the Complaint; the summons;
a completed Notice of Lawsuit and Request for Waiver of
Service of Summons ...