Perez v. Cook et al

Filing 31

ORDER DISMISSING PLAINTIFFS COMPLAINT WITH PREJUDICE. Signed by JUDGE LESLIE E. KOBAYASHI on 09/25/2014. Plaintiff's Complaint, which this Court previously dismissed without prejudice, is HEREBY DISMISSED WITH PREJ UDICE. This Court DIRECTS the Clerk's Office to close the case (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on 09/26/2014

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NORBERTO PANGELINAN PEREZ,
JR., 920779 Makakilo Drive,
Apt. 14 Kapolei, Hawaii 96707
808-699-0227,

)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
)
DR. KIM COOK (EXECUTIVE
)
DIRECTOR) U.S. VETS 91-1039
)
Shangrila Way Kapolei 808)
672-2988, et al.,
)
)
Defendants.
_____________________________ )

CIVIL 14-00018 LEK-KSC

ORDER DISMISSING PLAINTIFF’S COMPLAINT WITH PREJUDICE
On January 17, 2014, pro se Plaintiff
Norberto Pangelinan Perez, Jr. (“Plaintiff”) filed a document
which this Court construed as Plaintiff’s Complaint.

On

August 19, 2014, this Court issued its Order Granting Defendants’
Motion to Dismiss (“8/19/14 Order”).1

[Dkt. no. 29.]

This Court

ruled that Plaintiff’s Complaint did not plead a basis for
federal jurisdiction because neither US Vets’s tax-exempt status
nor the fact that US Vets receives federal grants create federal
jurisdiction over Plaintiff’s claims.

The 8/19/14 Order stated

that, if Plaintiff chose to file an amended complaint, he was to
do so by September 19, 2014.
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The defendants in this action are Dr. Kim Cook,
Leonard Smith, and U.S. Vets Inc. (“US Vets,” all collectively
“US Vets Defendants”).

Plaintiff has not filed an amended complaint, or any
other document in this case, since this Court issued the 8/19/14
Order.

Plaintiff is on notice that, “if he fails to file his

amended complaint by September 19, 2014, or if the amended
complaint fails to cure the defects identified in this Order,
this Court may dismiss Plaintiff’s case with prejudice.”
[8/19/14 Order at 11 (emphasis omitted).]
Since Plaintiff has not filed an amended complaint to
correct the deficiencies in his Complaint by the deadline, this
Court has the discretion to dismiss Plaintiff’s Complaint with
prejudice.

See Yourish v. Cal. Amplifier, 191 F.3d 983, 988 (9th

Cir. 1999) (holding that the plaintiff’s failure to comply with a
minute order setting forth the deadline to file the amended
complaint gave the district court the discretion to dismiss the
case under Fed. R. Civ. P. 41(b)).2

After weighing the five

dismissal factors set forth in Dreith v. Nu Image, Inc., 648 F.3d
779, 788 (9th Cir. 2011),3 this Court finds that the public

2

Fed. R. Civ. P. 41(b) states, in pertinent 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.”
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The Ninth Circuit has
identified five factors that a district court must
consider before dismissing a case . . . : (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 other
(continued...)
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interest in the expeditious resolution of this litigation and
this Court’s interest in managing the docket strongly outweigh
the policy favoring disposition of cases on the merits.
Moreover, Defendants will not be prejudiced by dismissal, and
there are no less drastic alternatives available at this time.
Plaintiff’s Complaint, which this Court previously
dismissed without prejudice, is HEREBY DISMISSED WITH PREJUDICE.
This Court DIRECTS the Clerk’s Office to close the case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 25, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

NORBERTO PANGELINAN PEREZ, JR. VS. DR. KIM COOK, ETC., ET AL;
CIVIL 14-00018 LEK-KSC; ORDER DISMISSING PLAINTIFF’S COMPLAINT
WITH PREJUDICE

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(...continued)
party; (4) the public policy favoring the
disposition of cases on their merits; and (5) the
availability of less drastic sanctions.

Dreith, 648 F.3d at 788 (citations and quotation marks omitted).
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