United States District Court, D. Hawaii
ORDER DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO
MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE
September 25, 2019, pro se Appellant Adam Lee
(“Appellant”) filed in the United States
Bankruptcy Court for the District of Hawaii
(“Bankruptcy Court”) his appeal of the Bankruptcy
Court's September 18, 2019 “Amended Notice of Entry
of Order of Judgment, ” which provided notice that on
August 29, 2019, the Bankruptcy Court (1) entered an
“Order Granting First Interim Application By General
Counsel to Chapter 7 Trustees for Allowance of Compensation
and Reimbursement of Expenses, ” and (2) modified such
order. ECF No. 1-1. The Bankruptcy Court transmitted the
Appeal to this court on September 27, 2019. ECF No. 1.
has since failed to comply with court briefing deadlines and
orders to respond and/or appear in this case. As a result,
and as explained below, the court DISMISSES this action with
prejudice pursuant to Federal Rule of Civil Procedure 41(b)
for failure to prosecute.
forth above, the Bankruptcy Court transmitted Appellant's
appeal to this court on September 27, 2019. ECF No. 1. On
October 12, 2019, Appellee Enver W. Painter, Jr.
(“Appellee”) filed a Motion to Dismiss the Appeal
arguing that this court lacks appellate jurisdiction. ECF No.
3. Pursuant to an October 15, 2019 Entering Order, this court
directed the parties to file briefing on the jurisdictional
issue only and held in abeyance briefing on the merits of the
appeal. ECF No. 4. The court directed Appellant to file his
opposition by November 4, 2019, and Appellee to file an
optional reply by November 12, 2019. Id.
failed to file an opposition. On November 8, 2019, the court
ordered Appellant to file a written response by November 25,
2019 stating whether he intends to oppose the Motion to
Dismiss and if so, why he failed to meet the November 4, 2019
deadline (“Order to Show Cause”). ECF No. 6. The
court warned Appellant that failure to file a response by
November 25, 2019 may result in automatic dismissal of his
appeal for failure to prosecute. Id.
failed to file a response to the Order to Show Cause. On
November 29, 2019, the court ordered Appellant to appear
personally on January 3, 2020 to show cause why this action
should not be dismissed for failure to prosecute, or if he
does not wish to proceed with this action, to file a notice
of dismissal by January 2, 2020 (“Order Setting OSC
Hearing”). ECF No. 7.
same day each order was filed, a copy was mailed to Appellant
at the address he provided on his appeal: 4348 Waialae Ave.
#285, Honolulu, Hawaii 96816. No mailing was returned to the
court as undeliverable.
neither filed a notice of dismissal nor appeared for the
January 3, 2020 hearing.
Rule of Civil Procedure 41(b) authorizes a court to dismiss
an action for failure “to prosecute or to comply with
[the federal] rules or a court order.” See also
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).
And “[i]t is within the inherent power of the court to
sua sponte dismiss a case for lack of prosecution.”
Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)
(citing Link v. Wabash R.R. Co., 370 U.S. 626,
630-33 (1962)). To determine whether dismissal is warranted,
the court must consider: “(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 the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.” In re Phenylpropanolamine (PPA)
Prods. Liability Litig., 460 F.3d 1217, 1226 (9th Cir.
2006) (citations omitted); see also Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
these factors, the court finds that dismissal with prejudice
is warranted. First, given Appellant's utter failure to
participate in this action, despite numerous warnings by the
court, the public's interest in expeditious resolution of
litigation strongly favors dismissal. Specifically, Appellant
failed to (1) file an opposition to Appellee's Motion to
Dismiss, (2) respond to the Order to Show Cause, (3) appear
at the January 3, 2020 Order to Show Cause hearing, and (4)
notify the court in any manner whatsoever as to his
intentions regarding this action. Second, Appellant's
failure to participate interferes with the court's
ability to manage its docket-this case has been placed in
limbo, with the court deferring a ruling on whether it even
has jurisdiction and having no assurances that Appellant
intends to proceed with this action going forward. Thus, this
factor strongly favors dismissal. Third, the risk of
prejudice to Appellee weighs in favor of
dismissal-Appellant's inaction has impaired
Appellee's ability to proceed toward the resolution of
this action. Fourth, imposing less drastic sanctions would be
futile given Appellant's failure to respond to all prior
court orders and failure to appear or otherwise indicate his
intention to proceed with this action, despite the
court's warning that such failures could result in
dismissal. Thus, the fourth factor strongly favors dismissal.
Finally, although public policy generally favors disposition
of cases on their merits, under the circumstances, this
factor is outweighed by the other four factors favoring
court therefore finds that this action should be dismissed
due to Appellant's failure to prosecute. See In re
Eisen, 31 F.3d 1447, 1451-56 (9th Cir. 1994) (discussing
factors and affirming dismissal of for failure to prosecute);
see also In re Scarlett, 745 Fed.Appx. 5 (9th Cir.
2018) (Mem.) (citing In re Eisen and affirming
district court's dismissal of bankruptcy appeal for
failure to prosecute where district court warned that
appellant's failure to comply with court-ordered filing
deadlines would result in dismissal of his appeal). Rule
41(b) provides that “[u]nless the dismissal order
states otherwise, a dismissal under this subdivision (b) . .
. operates as an adjudication on the merits.” And based
on the circumstances here-Appellant's utter failure to
participate, Appellee's expenditure of time and money to
defend this appeal, and the futility of imposing lesser
sanctions-the court finds that dismissal with prejudice is
warranted. See, e.g., Amina v. WMC Mortg.
Corp., 554 Fed.Appx. 555, 555 (9th Cir. 2014) (Mem.)
(affirming dismissal with prejudice for failure to prosecute
where Plaintiffs “repeatedly” failed to comply
with obligations in prosecuting case despite being warned
that if they failed to comply ...