Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bralich v. Sullivan

United States District Court, D. Hawaii

September 17, 2019

PHILIP BRALICH, PH.D, Plaintiff,
v.
BARRY A. SULLIVAN, ESQ.; MARK PIESNER; CHRIS FRY; JOHN BATALI; WILLIAM O'GRADY; PETER MORRELI; CRAIG WEISSMAN; SAM PULLARA; SCOTT ZIEGLER; TWITTER; THROWNET A. CA-CORP.; THROWNET B. MA-CORP.; SALESFORCE.COM INC.; MICROSOFT; STANFORD UNIVERSITY; NUANCE COMMUNICATIONS, Defendants.

          ORDER GRANTING DEFENDANT SULLIVAN'S MOTION TO DISMISS THE THIRD AMENDED COMPLAINT, DISMISSING ALL CLAIMS AGAINST ALL DEFENDANTS, AND DISMISSING THE CASE

          ALAN C. KAY SR., UNITED STATES DISTRICT JUDGE.

         For the 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.

         BACKGROUND

         Plaintiff, 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 Am. Compl.).

         Sullivan 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.

         The 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.

         Plaintiff's 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”).

         Plaintiff 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.

         The 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.

         The 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.

         Plaintiff 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 2.

         On July 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.

         STANDARD

         Federal 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.