United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT
SULLIVAN'S MOTION TO DISMISS THE THIRD AMENDED COMPLAINT,
DISMISSING ALL CLAIMS AGAINST ALL DEFENDANTS, AND DISMISSING
C. KAY SR., UNITED STATES DISTRICT JUDGE.
reasons set forth below, the Court GRANTS Defendant Barry A.
Sullivan's Motion to Dismiss Third Amended Complaint, ECF
No. 142. The Court further sua sponte dismisses all claims
against all defendants. The case is hereby DISMISSED.
proceeding pro se, filed this action in state court on July
31, 2015. See ECF No. 1-1 (original state court
complaint). Plaintiff filed an amended complaint on March 3,
2016. ECF No. 1-2 at 1 (First Am. Compl.). On August 4, 2016,
the state court granted Defendant Barry Sullivan's motion
for a more definite statement and gave Plaintiff until August
12, 2016 to file a second amended complaint. ECF No. 45-3 at
65-69. Because Plaintiff did not do so, Sullivan filed a
motion to dismiss. ECF No. 47-4 at 1-10. The state court
denied the motion without prejudice and quashed attempted
service of process of Plaintiff's late-filed second
amended complaint on Sullivan. ECF No. 50-6 at 50-52.
Plaintiff filed a request for leave to file a third amended
complaint, which was granted by the state court on January
31, 2017. ECF No. 51-2 at 1-2, 104-05. Plaintiff filed his
Third Amended Complaint on March 1, 2017. ECF No. 51-3 (Third
removed this action to federal court on May 4, 2017. ECF No.
66-5 at 93; see also ECF No. 1, CV 17-000203 ACK-RLP
(D. Haw. 2017). This Court remanded the case back to state
court on October 30, 2017, finding that Sullivan's
removal was untimely. ECF No. 8, CV 17-00547. While this case
was removed, the parties filed numerous motions, of which the
Court deferred consideration in light of the pending motion
to remand. Id. After remand, Defendant Microsoft
filed its own Notice of Removal on November 3, 2017. ECF No.
1. Plaintiff filed a motion to remand on November 17, 2017,
which this Court denied on January 23, 2018. ECF Nos. 24, 81.
Court ordered that the motions filed during the first removal
be reinstated in the instant matter. ECF No. 8. The Court
construed the two motions Plaintiff filed to be seeking entry
of default and referred them to the magistrate judge. ECF No.
84. Those motions were denied on February 23, 2018. ECF Nos.
115, 116. The Court then determined to first resolve
Defendant Craig Weissman and Defendant Salesforce.com
Inc.'s Motions to Dismiss, to which Defendants Microsoft
and Chris Fry (collectively, “the Salesforce
Defendants”) filed substantive joinders. ECF Nos. 9
(“Weissman Mot.”), 10 (“Salesforce
Mot.”), 11 (“Fry Joinder”), 13
(“Microsoft Joinder”). The remaining motions
carried into Defendant Stanford and Nuance
Communications' Motions to Dismiss, which were scheduled
to be heard before this Court on April 23, 2018. ECF Nos. 99,
138. On March 20, 2018, discovery was stayed pending
resolution of the motions to dismiss. ECF No. 123.
previously filed responses to these motions were also
reinstated in the instant case. ECF Nos. 17 (“Opp. to
Salesforce”), 18 (“Opp. to Fry”), 19
(“Opp. to Weissman”), 22 (“Opp. to
Microsoft”). Plaintiff already filed responses to
Stanford and Nuance's motions. ECF Nos. 20, 21. On
February 1, 2018, Plaintiff filed a “Further Response
and Further Evidence to Counter Initial Motions.” ECF
No. 92 (“Pl. Supp. Resp.”). Replies were filed on
March 23, 2018. ECF Nos. 125 (“Weissman” Reply);
126 (“Salesforce Reply”).
also filed a Motion to Reinclude Twitter in the List of
Defendants, ECF No. 97, which the Court granted on April 3,
2018. ECF No. 130. The Court reserved determination of the
time frame in which Plaintiff must amend his pleading to add
Twitter back as a defendant pending its resolution of the
motions to dismiss scheduled for hearing on April 23, 2018.
ECF No. 130.
Court held a hearing on the Salesforce Defendants'
Motions and Joinders on April 9, 2018. ECF No. 132. By Order
dated April 10, 2018, the Court dismissed Weismann from the
action with prejudice for lack of personal jurisdiction;
dismissed Plaintiff's patent infringement claim with
prejudice; dismissed Plaintiff's RICO claims against the
Salesforce Defendants without prejudice and with leave to
amend; dismissed Plaintiff's Hawaii Uniform Trade Secrets
Act (“HUTSA”) misappropriation claims against
Salesforce, Weissman, and Microsoft without prejudice and
with leave to amend, but denied Fry's Joinder on this
issue; and dismissed Plaintiff's fraud claims against the
Salesforce Defendants without prejudice and with leave to
amend. ECF No. 134. The Court ordered an amended complaint
correcting the deficiencies in his pleading be filed within
30 days of the date of the Order addressing the matters to be
heard at the April 23, 2018 hearing. ECF No. 134.
Court held a hearing on Stanford University and Nuance
Communications' Motions to Dismiss on April 23, 2018. ECF
No. 138. By Order dated April 23, 2018, the Court granted
both Motions, dismissing Defendants Stanford and Nuance with
prejudice for lack of personal jurisdiction, subject to
discovery revealing a basis for personal jurisdiction over
them. ECF No. 139. The Court further specified that it
provided Plaintiff 30 days from the date of the Order, dated
April 23, 2018, for Plaintiff to file an amended complaint to
add Twitter back as a defendant and to address the
deficiencies noted in the Salesforce Order, ECF Nos. 130 and
134. ECF No. 139.
did not file an amended complaint. More than a year passed.
On June 5, 2019, Defendant Sullivan filed a Motion to Dismiss
the Third Amended Complaint in its entirety, with prejudice
and without leave to amend as against all Defendants,
pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure. ECF No. 142. The Court set the matter for hearing
on October 8, 2019. ECF No. 142. Plaintiff filed a Response
to Defendant Sullivan's Motion on June 14, 2019, stating:
“I do not object to the Motion to Dismiss . . ., not
because I have acquiesced in any of my positions or claims,
but only because I am tired of it.” ECF No. 144 at 2.
Defendant Sullivan filed his Reply on June 24, 2019, noting
the lack of opposition and requesting the Motion be resolved
without a hearing pursuant to Local Rule 7.2. ECF No. 145 at
15, 2019, the Court acknowledged Plaintiff's statement
that he “do[es] not object to the Motion to dismiss,
” and Defendant Sullivan's request that the Motion
to Dismiss the Third Amended Complaint, ECF No. 142, be
decided without a hearing. ECF No. 146. The Court vacated the
October 8, 2019 hearing date and took the matter under
consideration without a hearing pursuant to Local Rule
7.2(d). Id. The Court explicitly stated in its
Minute Order that the “Motion to Dismiss seeks
dismissal as to all named Defendants” and therefore
provided any party an opportunity to object “to this
Court's deciding the Motion to Dismiss as a non-hearing
motion.” Id. No objections were filed.
Rule of Civil Procedure 41(b) provides, in relevant part:
“If the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss
the action or any claim against it.” In addition,
courts have the “inherent power” to
“dismiss sua sponte for lack of prosecution.”
Link v. Wabash R. Co.,370 U.S. 626, 630-31, 82
S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962); see also
Chambers v. NASCO, Inc.,501 U.S. 32, 44, 111 S.Ct.
2123, 2132, 115 L.Ed.2d 27 (1991) (holding the Court
“may act sua sponte to dismiss a suit for failure to
prosecute”); Hells Canyon Pres. Council v. U.S.
Forest Serv.,403 F.3d 683, 689 (9th Cir. 2005) (holding
that under some circumstances “courts may dismiss under
Rule 41(b) sua sponte”). “The authority of a
federal trial court to dismiss a plaintiff's action with
prejudice because of his failure to prosecute cannot
seriously be doubted.” Link v. Wabash R. Co.,
370 U.S. at 629; see also Al-Torki v. Kaempen, 78