United States District Court, D. Hawaii
ORDER DISMISSING ACTION
A. OTAKE UNITED STATES DISTRICT JUDGE
Aunty's Market China Town Hawaii LLC, Leticia Tamayo, and
Janet Howell (collectively “Plaintiffs”)
commenced this action on January 18, 2019. On February 11,
2019, the Magistrate Judge issued a Findings and
Recommendation to Dismiss the Complaint and Deny as Moot
Application to Proceed In Forma Pauperis
(“F&R”). ECF No. 6. The F&R recommended
that Plaintiffs be granted until March 11, 2019 to file an
Court issued an Order Adopting, as Modified, Magistrate
Judge's Findings and Recommendation on February 28, 2019
(“Order”). ECF No. 7. The Order extended the
deadline for Plaintiffs to file an amended complaint and an
in forma pauperis application or to pay the requisite filing
fee until March 29, 2019. Id. at 1. Plaintiffs
failed to comply with this deadline.
April 17, 2019, Plaintiffs filed a document titled
“REQUEST HEARING DATE AUGUST 2019.” ECF No. 9.
Although the Court determined that Plaintiffs failed to
advance a legitimate basis for the requested extension, it
granted Plaintiffs until May 17, 2019 to file an amended
complaint and another in forma pauperis application or the
requisite filing fee. ECF No. 10 at 4. The Court cautioned
that failure to timely comply with the requirements set forth
in the Order would result in the automatic dismissal of the
action. Id. at 5.
3, 2019, pro se Plaintiff Janet Howell
(“Plaintiff”) submitted three documents titled
“Complaint.” ECF No. 13. The Court addressed
these documents in its Order Dismissing Action
(“Dismissal Order”) filed on May 10, 2019. ECF
No. 15. The Court found that the filings did not comply with
the F&R and Order, failed to demonstrate that the Court
has jurisdiction, and did not set forth any viable claims.
Id. at 2-7. Although the Court questioned whether
further amendment could cure the aforementioned defects, it
afforded Plaintiff a final opportunity to correct the
deficiencies identified in the Dismissal Order and prior
orders. Id. at 7. The Court imposed a deadline of
May 31, 2019 to file a second amended complaint and file the
applicable filing fee or an in forma pauperis application.
Id. at 8. The Court again cautioned Plaintiff that
her failure to meet any of the outlined requirements would
result in the dismissal of this action. Id.
than preparing a compliant amended pleading, Plaintiff filed
seven motions between May 13 and May 30, 2019, most of which
sought the same relief previously requested and denied. One
such motion requested an extension of the deadline to file an
amended pleading. The Court denied a further extension
because the case has been pending since the beginning of the
year and Plaintiff did not provided a basis to continue
extending the deadline to file an amended pleading. ECF No.
22 at 2-4. The Court reminded Plaintiff that she must
diligently prosecute her case and strongly admonished that
Plaintiff's failure to meet deadlines and comply with
Court mandates would result in the dismissal of this action.
Id. at 4.
30, 2019, Plaintiff filed yet another Motion for Extension of
Time, seeking an extension until August 2019 to file an
amended pleading. ECF No. 25. The Court denied the motion for
the reasons previously articulated and because Plaintiff
failed to provide a basis for a further extension. ECF No.
date, Plaintiff has not filed a second amended complaint, nor
an in forma pauperis application or the filing
do not take failures to prosecute and failures to comply with
Court orders lightly. Federal Rule of Civil Procedure
(“FRCP”) 41(b) authorizes the Court to sua sponte
dismiss an action for failure “to prosecute or to
comply with [the federal] rules or a court order.”
Fed.R.Civ.P. 41(b); Hells Canyon Pres. Council v. U.S.
Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). Unless
the Court in its order for dismissal otherwise specifies, a
dismissal under this rule operates as an adjudication upon
the merits. Fed.R.Civ.P. 41(b).
determine whether dismissal is appropriate, the Court must
consider five factors: “(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.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
1992)). Although the Court recognizes that Plaintiff is
proceeding pro se, she is not exempt from complying with all
applicable rules. Local Rule 83.13 (“Pro se litigants
shall abide by all local, federal, and other applicable rules
of Plaintiff's violation of multiple orders and failure
to prosecute, the Court finds that the Pagtalunan
factors support dismissal of this action. The public's
interest in expeditious resolution of this litigation
strongly favors dismissal, Pagtalunan, 291 F.3d at
642 (quoting Yourish v. Cal. Amplifier, 191 F.3d
983, 990 (9th Cir. 1999)) (“The public's interest
in expeditious resolution of litigation always favors
dismissal.”) (quotations omitted), as does the
Court's need to manage its docket. Id. (citing
Ferdik, 963 F.2d at 1261). Moreover, there is no
risk of prejudice to Defendants, as they have yet to be
served. Finally, there are no less drastic alternatives
available at this time. This case cannot proceed without an
operative pleading and the Court has already given Plaintiff
two opportunities to amend her complaint plus multiple
extensions of time to do so. Instead of availing herself of
these opportunities, Plaintiff continues to paper the Court
with frivolous and incoherent motions, repeatedly requesting
relief that has already been denied.
Court acknowledges that the public policy favoring
disposition of cases on their merits weighs against
dismissal. However, considering the totality of the
circumstances and because all of the ...