United States District Court, D. Hawaii
AMENDED OF DISMISSAL
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE.
September 17, 2018, Plaintiff DLMC, Inc., dba Kama'aina
Health Care Services (DLMC), initiated this action against
Benedicta Flores and Loving Care Health Provider, Inc.
(LCHP), alleging claims for violation of the Defend Trade
Secrets Act (DTSA), 18 U.S.C. § 1836(b)(3), and the
Hawai‘i Uniform Trade Secrets Act (HUTSA). Complaint,
Dkt. No. 1 (Compl.). DLMC also filed a Motion for Temporary
Restraining Order, seeking to enjoin Flores and LCHP from
appropriating DLMC's trade secrets and confidential
information. Motion for TRO, Dkt No. 3. In a December 19,
2018 Order, the Court denied the motion for TRO. Dkt. No. 24.
November 9, 2018, Flores filed a Motion to Dismiss, in which
LCHP joined, challenging this Court's subject matter
jurisdiction. Dkt. No. 18; Dkt. No. 20. DLMC did not file an
Opposition, and the hearing on the Motion to Dismiss,
scheduled for January 18, 2019, was vacated. On January 23,
2019, the Court issued an Order granting the Motion to
Dismiss. Dkt. No. 29. The Order dismissed DLMC's DTSA
claim, the only basis for this Court's subject matter
jurisdiction under 28 U.S.C. § 1331, but permitted DLMC
leave to amend its Complaint by February 8, 2019, consistent
with the Court's ruling. Id. at 7. As of the
date of this Amended Order, February 27, 2019, DLMC has not
filed an amended complaint, nor has it responded in any way
to the Court's January 23, 2019 Order. 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 the filing of 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 January 23, 2019 Order was clear:
Because DLMC has not opposed the Motion and, more
particularly, has not alleged facts to support the existence
of a protected trade secret in interstate commerce under the
DTSA, as required for this Court to exercise jurisdiction,
the Motion is granted with leave to amend.
[T]he Court cannot conclude that it has jurisdiction over the
DTSA claim or, hence, over this case.
Accordingly, the Court GRANTS leave to amend and allows
Plaintiff an opportunity to allege a DTSA, or other federal,
claim by February 8, 2019. The failure to do so will result
in the dismissal of DLMC's DTSC claim without leave to
January 23, 2019 Order at 2, 6, 7.
failure to file an amended complaint, as permitted by the
January 23, 2019 Order, hinders the Court's ability to
move this case forward and indicates that DLMC does not
intend to litigate this action diligently in this Court.
See Yourish v. California Amplifier, 191 F.3d 983,
990 (9th Cir. 1999) (“The public's interest in
expeditious resolution of litigation always favors
dismissal.”). This factor favors dismissal.
risk of prejudice to a defendant is related to a
plaintiff's reason for failure to prosecute an action.
See Pagtalunan, 291 F.3d at 642 (citing
Yourish, 191 F.3d at 991). DLMC offers no excuse or
explanation for its failure to file a First Amended
Complaint. When a party offers a poor excuse (or, in this
case, no excuse) for failing to comply with a court's
order, the prejudice to the ...