Palik v. Palik, et al

Filing 54

ORDER OF DISMISSAL WITHOUT PREJUDICE. Signed by Judge Lucy Koh on 6/17/14. (lhklc5S, COURT STAFF) (Filed on 6/17/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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ANTHONY J. PALIK,

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Plaintiff,
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v.
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MEGAN PALIK, a natural person and real party )
in interest; and HON. KENNETH J. MELKIAN, )
Judge of the El Dorado County Superior Court in )
his individual capacity,
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Defendants.
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)

Case No.: 13-CV-03630
ORDER OF DISMISSAL WITHOUT
PREJUDICE

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On May 29, 2014, the Court issued an Order to Show Cause why Plaintiff’s claims against
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Defendant Judge Melikian should not be dismissed for failure to prosecute. ECF No. 52. On June
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13, 2014, Plaintiff filed a timely response. ECF No. 53. However, Plaintiff’s response is
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inadequate and non-responsive. For the reasons below, the Court dismisses Plaintiff’s remaining
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claims for failure to prosecute.
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Plaintiff filed his complaint on August 5, 2013, naming his ex-wife Megan Palik and Judge
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Melikian as Defendants. ECF No. 1. Mr. Palik claims that Defendants violated his constitutional
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rights because Mr. Palik was unlawfully held in contempt for failing to pay child support
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payments. On September 10, 2013, Magistrate Judge Lloyd issued an Order to Show Cause
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regarding subject matter jurisdiction over Plaintiff’s claims against his ex-wife. ECF No. 25. After
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briefing, on April 15, 2014, Judge Lloyd issued a Report and Recommendation that all claims
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Case No.: 13-CV-03630
ORDER OF DISMISSAL WITHOUT PREJUDICE

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against Ms. Palik be dismissed for lack of subject matter jurisdiction, and that Plaintiff’s request to

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amend his complaint be denied. ECF No. 40. Judge Lloyd also noted that it was “unclear”

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whether Judge Melikian “has been properly served” and indicated that judicial immunity would

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likely bar Plaintiff’s claims against Judge Melikian. Id. at 4 & n.2. Judge Melikian has not

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appeared.

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On May 16, 2014, the Court adopted the Report and Recommendation in its entirety and

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thus dismissed all claims against Ms. Palik. Thus, only the claims against Judge Melikian

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remained. As to these remaining claims, the Court’s May 16, 2014 Order compelling Plaintiff to

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file by May 23, 2014 a response “explaining the status of service on Judge Melikian and why

United States District Court
For the Northern District of California

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Plaintiff’s remaining claims are not precluded by judicial immunity.” ECF No. 51 at 2. Plaintiff

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failed to respond.

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On May 29, 2014, the Court issued an Order to Show Cause. In the Order to Show Cause,

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the Court noted that Plaintiff had failed to respond to the Court’s May 16, 2014 Order compelling

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Plaintiff to explain the status of service on Judge Melikian and explain why Plaintiff’s remaining

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claims are not precluded by judicial immunity. In his June 13, 2014 response, Plaintiff still has not

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explained the status of service on Judge Melikian, saying only that Plaintiff “did not believe it was

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prudent to request a default against the state court judge until . . . the state court judge and state

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attorney general had been served with the amended complaint.” ECF No. 53 at 2. However, the

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Court’s May 16, 2014 Order expressly denied Plaintiff’s attempt to amend his complaint (ECF No.

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51 at 2), and Plaintiff identifies no additional efforts to effect service. Moreover, Plaintiff’s

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response fails to adequately address the Court’s inquiry regarding the effect of judicial immunity

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on Plaintiff’s remaining claims against Judge Melikian.

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“A district court may sua sponte dismiss an action for failure to prosecute.” McKeever v.

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Block, 932 F.2d 795, 797 (9th Cir. 1991). An involuntary dismissal depends on the following

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factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits and (5) the availability of less drastic sanctions.” Henderson v.

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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
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Case No.: 13-CV-03630
ORDER OF DISMISSAL WITHOUT PREJUDICE

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Here, consideration of the factors above warrants dismissal without prejudice of Plaintiff’s

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claims. Over ten months have passed since Plaintiff filed suit, and he has not responded to the

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Court’s requests for information about the status of service on Judge Melikian. Plaintiff’s response

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also fails to adequately address the Court’s inquiry regarding the effect of judicial immunity on

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Plaintiff’s remaining claims against Judge Melikian. The public’s interest in expeditious

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resolution, the court’s need to manage its docket, and the risk of prejudice to Judge Melikian favor

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dismissal. The Court has considered other possible sanctions, but concludes that Plaintiff’s

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conduct warrants dismissal. Plaintiff has failed to comply with multiple requests from the Court.

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Furthermore, the Court notes that Plaintiff has been represented by counsel throughout this case

United States District Court
For the Northern District of California

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and is himself a licensed attorney.
Accordingly, it is hereby ORDERED that Plaintiff’s remaining claims are DISMISSED

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WITHOUT PREJUDICE for failure to prosecute. The June 18, 2014 hearing on the Order to Show

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Cause is VACATED as moot. The Clerk shall close the case file.

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IT IS SO ORDERED.

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Dated: June 17, 2014

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 13-CV-03630
ORDER OF DISMISSAL WITHOUT PREJUDICE