Hicks et al v. Makaha Valley Plantation Homeowners Assn. et al
Filing
161
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO PROSECUTE (ECF NO. 156 ) - Signed by JUDGE HELEN GILLMOR on 7/28/2016. "Plaintiff Deneen Hicks' Motion for Continuance (ECF No. 154 ) is DENIED< /B>. Defendants' Motion to Dismiss (ECF No. 156 ) is GRANTED. Fourteen days have passed without response to Defendant's Motion to Dismiss for lack of prosecution. The case is DISMISSED WITH PREJUDICE. Pursuant to Fed. R. Civ. P. 41(b), the Clerk of Court is directed to ENTER JUDGMENT and CLOSE THE CASE." (emt, )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). Charles A. Hicks, Deneen Hicks and Stacey Hicks served by first class mail at the address of record on July 29, 2016.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHARLES A. HICKS; DENEEN HICKS; )
and STACEY HICKS,
)
)
Plaintiffs,
)
)
)
vs.
)
ASSOCIATION OF APARTMENT OWNERS )
OF MAKAHA VALLEY PLANTATION and )
)
HAWAII FIRST, INC.,
)
)
)
Defendants.
_______________________________ )
Civil No. 14-00254 HG-KJM
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO
PROSECUTE (ECF NO. 156)
Defendants Association of Apartment Owners of Makaha Valley
Plantation and Hawaii First, Inc. filed (1) Motion to Dismiss for
Failure to Prosecute and Failure to Comply with Court Orders and
Court Rules and (2) Memorandum in Opposition to Plaintiff Deneen
Hicks’ Motion for Continuance. (ECF No. 156).
BACKGROUND
In May of 2014 Plaintiffs, Charles Hicks and Deneen Hicks
and their adult daughter Stacey Hicks, filed suit against the
Makaha Valley Plantation Homeowners Association and its managing
agent, Hawaii First, Inc.
Plaintiffs, proceeding Pro Se, allege
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housing discrimination by Defendants because of their race,
African American,
and Mr. Hicks’ disability.
The condominium
community where Plaintiffs resided is comprised of 572 units
located in Waianae, Hawaii.
Plaintiffs’ Amended Complaint stated claims of race and
disability discrimination in violation of the Fair Housing Act,
42 U.S.C. § 3601 et seq., and the Hawaii Discrimination in Real
Property Transactions Act, Haw. Rev. Stat. § 515 et seq.
(ECF
No. 40).
On August 8, 2015, the Magistrate Judge filed a Scheduling
Order pursuant to Rule 16 of the Federal Rules of Civil
Procedure.
(ECF No. 56).
The Scheduling Order established the
relevant trial-related deadlines and the trial date of July 12,
2016.
(Id.)
In the two years the matter has been pending, Plaintiffs
have requested and been allowed numerous instances of extra time
to file and respond to pleadings.
On May 31, 2016 Plaintiff Deneen Hicks filed a Pretrial
Statement which had 107 attachments labeled as exhibits.
The
format and contents of the filing raised a concern that the Pro
Se Plaintiffs were not clear as to how to put their case before
the jury. The voluminous filing contains many exhibits that would
not be admissible at trial.
There was no understandable
organization of the exhibits.
There was a list of 21 “documents
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and records to be introduced into evidence:” but the numbers did
not correspond to the numbers on the 107 “exhibits.”
Prior to the final pretrial conference scheduled for July 1,
2016, the Court scheduled a pretrial conference on June 28, to
begin discussion of the trial process and the various required
filings.
Beginning on June 28, 2016, the Court held four pre-trial
hearings to assist Plaintiffs in understanding the mechanics of a
trial and how to comply with the Local Rules and the Court’s
Orders.
Defendants had filed 11 Motions in Limine.
The Court
discussed each motion with the parties to avoid error at trial.
Plaintiffs did not file a concise statement of the case, proposed
jury instructions, a verdict form, or a trial brief.
Each hearing ranged between approximately one hour and two and a
half hours in length.
The Court permitted Plaintiff Stacey
Hicks, who was living in Georgia, to participate in the hearings
by telephone.
During one of the hearings it was agreed to move the trial
from July 12 to July 19, 2016.
The extra week provided
additional time for trial preparation.
As a result of the first three pretrial hearings the Court
issued two written orders detailing the rulings on the Motions in
Limine.
The orders were intended to make clear what evidence
would be admissible at trial.
(Trial Procedure Orders on
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Defendants’ Motions in Limine, ECF Nos. 150, 151)
Local Rule 51.1 provides the parties with instructions on
how to prepare jury instructions.
The rule is set forth in the
Rule 16 Scheduling Order of August 8, 2015 as a requirement for
filing jury instructions.
instructions.
Defendants.
Plaintiffs did not provide any jury
They did not respond to those proffered by
Plaintiffs cancelled the scheduled July 13th meeting
with Defendants to confer on jury instructions.
In the early morning of Thursday, July 14, 2016, the date of
the fourth pre-trial hearing, four days before Trial, Deneen
Hicks submitted an e-mail to the Court entitled “Motion for a
Continuance of Trial.”
(ECF No. 154).
Attached to the e-mail
was a document that appears to be a letter, dated Wednesday, July
13, 2016, from a nurse practitioner at the Waianae Coast
Comprehensive Health Center.
The letter stated:
DENEEN HICKS is a patient in our clinics. She is
experiencing medical and psychiatric challenges which
would prevent her from temporarily participating in
court proceedings. Ms. Hicks requires time for
treatment and recovery. She is highly motivated for
recovery and her prognosis is excellent. Recommended
she be allowed 60 days for recovery.
(Ex. A of Deneen Hicks’ Motion for Continuance, ECF No. 154).
Deneen Hicks’ e-mail did not mention Charles Hicks or Stacey
Hicks.
There was no additional information as to the nature of
the medical and psychiatric challenges Mrs. Hicks faced.
was no diagnosis or other information.
There
Medical treatment can
justify a delay of a trial, but the delay must be supported by a
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“detailed showing.”
See Moffitt v. Ill. State Bd. Of Educ., 236
F.3d 868, 874-76 (7th Cir. 2001).
After receiving the e-mail, the Court immediately filed a
Minute Order instructing all Parties to appear that day at the
2:00 p.m. previously scheduled hearing.
The Court indicated it
wished to review the particulars of Deneen Hicks’ request.
No. 151).
(ECF
The Order to Appear indicated that Mrs. Hicks’ e-mail
provided insufficient information for a determination as to
whether a continuance was warranted.
(Id.)
A copy of the Order
to Appear was sent to Charles and Deneen Hicks via e-mail.
Despite the Court’s Order, Charles and Deneen Hicks did not
appear at the Thursday, July 14, 2016 hearing.
They did not
respond to the multiple telephone calls made to them by the
Courtroom Manager.
Stacey Hicks participated by telephone, but
represented that she did not know where Charles and Deneen Hicks
were. (Id.)
At the Thursday, July 14, 2016 hearing, the Court issued an
ORDER TO SHOW CAUSE why Deneen Hicks’ request for a continuance
should not be denied.
(ECF No. 153).
The hearing on the ORDER
TO SHOW CAUSE was set for the next day, Friday, July 15, 2016.
Stacey Hicks was instructed to contact and inform Charles and
Deneen Hicks that they must appear at the July 15, 2016 hearing.
(Id.)
Copies of the ORDER TO SHOW CAUSE were sent to Charles and
Deneen Hicks, and Defendants via e-mail.
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The Order advised
Plaintiffs that a failure to prosecute or to comply with the
Court’s ORDER TO SHOW CAUSE could result in an involuntary
dismissal of the case.
(Id.)
Just prior to the Friday, July 15, 2016, hearing on the
ORDER TO SHOW CAUSE, Defendants filed (1) Motion to Dismiss for
Failure to Prosecute and Failure to Comply with Court Orders and
Court Rules and (2) Memorandum in Opposition to Plaintiff Deneen
Hicks’ Motion for Continuance.
(ECF No. 156).
Plaintiffs
Charles Hicks, Deneen Hicks, and Stacey Hicks did not appear at
the Friday hearing on the ORDER TO SHOW CAUSE.
(ECF No. 158).
The three Plaintiffs did not answer their individual telephone
numbers when multiple calls were made to them by the Courtroom
Manager.
(Id.)
ANALYSIS
Federal Rule of Civil Procedure 41(b) provides that a
defendant may move for dismissal of an action or claim for a
plaintiff's failure “to prosecute or to comply with [the Federal
Rules] or a court order.”
Fed. R. Civ. P. 41(b).
The
overarching theme of Rule 41(b) is to encourage a plaintiff to
prosecute his case with reasonable diligence.
Anderson v. Air
W., Inc., 542 F.2d 522, 524 (9th Cir. 1976).
Plaintiffs were given consideration of their pro se status
repeatedly throughout the two years the matter has been before
the Court.
The Plaintiffs have been warned at the hearings of
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the necessity of their appearance, the requirement to provide
necessary documents to proceed to trial, and about proper decorum
in Court.
Pro Se status does not excuse a litigant from
complying with evidentiary and procedural rules.
See United
States v. Rashed 166 F.3d 344, at *3 (9th Cir. Dec. 17, 1998).
The Federal Rules of Evidence, the Federal Rules of Civil
Procedure, and the Local Rules of this court apply to all parties
including those proceeding pro se.
Garcia v. Almieda 2007 WL
2758040 (E.D. Cal. Sept. 20, 2007).
Pro se parties are expected
to fully follow the Federal Rules of Evidence.
Guilfoyle v.
Educ. Credit Mgmt. Corp., 2015 WL 1442689, at *6 (E.D. Cal. March
25, 2015).
In determining whether to dismiss a claim pursuant to Rule
41(b), the Court must consider the following five factors:
(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 availability of less drastic alternatives; and
(5) the public policy favoring disposition of cases on their
merits.
The balance of the five factors weighs in favor of dismissal
for Plaintiffs’ failure to prosecute.
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(1) Expeditious Resolution of Litigation
The first factor weighs in favor of dismissal.
This case is more than two years old.
Plaintiffs had almost
12 months’ notice that the Trial would occur in July 2016. (ECF
No. 55).
They were required to diligently prosecute their case
and “take all steps necessary to bring [the] action to readiness
for pretrial and trial.”
LR 16.1.
Despite having been apprised
of the requisite trial deadlines, Plaintiffs repeatedly failed to
submit timely and necessary filings, such as a concise statement
of the case, a trial brief, a verdict form, and proposed jury
instructions.
Furthermore, Plaintiffs’ trial exhibits failed to
conform to the Local Rules concerning how exhibits may be
provided to the Court.
See LR 7.7; Briones v. Riviera Hotel &
Casino, 116 F.3d 379, 382 (9th Cir. 1997) (per curiam) (observing
that “pro se litigants are not excused from following court
rules”).
Plaintiff repeatedly failed to file the necessary pre-trial
documents and to submit their trial exhibits in proper form.
The
Court held four pre-trial hearings in this case in order to
assist the Plaintiffs in understanding the mechanics of a trial
and how to comply with the Local Rules and the Court’s Orders.
At the June 28, 2016 and July 1, 2016 pre-trial hearings, Charles
and Deneen Hicks arrived late for the proceedings.
At the first
hearing the Court did not comment of Plaintiffs’ tardiness.
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Deneen Hicks arrived 20 minutes late for the second hearing.
She
indicated Charles Hicks was not feeling well and that he would
arrive later.
Charles Hicks did arrive late and left before the
hearing was complete.
The Court asked for consideration of the
time devoted to the hearing by the parties, court staff, and
eventually, the jury.
The need for pro se plaintiffs to be
present to pursue their claims was also emphasized. (ECF No.
135).
At the third hearing on July 11, 2016, Plaintiff Stacey
Hicks did not appear via telephone during the morning session.
(ECF No. 147).
In the afternoon session of the July 11, 2016
hearing, the Court advised Stacey Hicks that her presence is
necessary for all hearings in the case, and warned her that
failure to be present at future hearings may result in a
dismissal of her claims.
(ECF No. 147).
Stacey Hicks, however,
disconnected before the conclusion of the afternoon session. (ECF
No. 147).
At that third hearing the Court also warned Charles
Hicks that his coming late, shouting, interrupting, walking in
and out of the courtroom during proceedings, as well as other
disruptive behavior, would not be tolerated. (ECF No. 147).
In the morning of July 14, 2016, the date on which the
fourth pre-trial hearing was scheduled for the afternoon, Deneen
Hicks sent an e-mail to the Court requesting a continuance on the
basis of “[m]edical necessity.” (ECF No. 154).
Upon receipt of
the request, the Court issued a Minute Order instructing all
9
Plaintiffs to appear at the July 14, 2016 hearing, so as to
address Deneen Hicks’ request.
(ECF No. 151).
The Minute Order
indicated that Deneen Hicks had provided insufficient information
about her need for a continuance.
The Minute Order permitted
Deneen Hicks to appear by telephone if she was unable to appear
in person.
(ECF No. 151).
Despite the Court’s order to appear and clarify the nature
of Deneen Hicks’ need for a continuance, Charles and Deneen Hicks
were not present at the July 14, 2016 hearing.
Stacey Hicks was present by telephone.
(ECF No. 153).
Plaintiffs did not submit
additional information supporting the significance and
substantiality of Deneen Hicks’ need for a continuance.
See Zhou
v. Belanger, 528 F. App'x 618, 622 (7th Cir. 2013) (permitting
the district court to require plaintiffs to provide a “detailed
showing” of the asserted medical condition).
At the July 14, 2016 hearing, the Court issued an ORDER TO
SHOW CAUSE that instructed all Plaintiffs to appear at a hearing
the next day on July 15, 2016.
(ECF No. 153).
The ORDER TO SHOW
CAUSE warned Plaintiffs that failure to comply or a failure to
prosecute could result in an involuntarily dismissal of the case.
(ECF No. 153). Despite the Court’s ORDER TO SHOW CAUSE, all three
Plaintiffs failed to appear at the July 15, 2016 hearing and did
not answer their individual cell phone numbers.
(ECF No. 158).
Plaintiffs’ failure to appear at the July 15, 2016 hearing
necessitated a cancellation of the Trial on July 19, and the
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summons of jurors for the Trial.
The Court was left with no
reason to believe that Plaintiffs would appear for Trial on July
19, 2016.
(ECF No. 158).
Plaintiffs have submitted non-compliant exhibits, failed to
file necessary pre-trial documents, cancelled their meet and
confer scheduled with Defendants to discuss joint jury
instructions, requested an unsupported eleventh-hour continuance,
and failed to appear at scheduled court hearings.
Plaintiffs
have not filed any pleadings or contacted the Court in the
fourteen days since their last missed hearing.
Plaintiffs have
substantially impeded a resolution of the case and prevented the
Court from adhering to its trial schedule.
Malone v. U.S. Postal
Serv., 833 F.2d 128, 131 (9th Cir. 1987).
Plaintiffs’ conduct has created an unreasonable delay in the
proceedings.
There is no indication that Plaintiffs take their
obligations to the Court and to Defendants seriously.
The Ninth
Circuit Court of Appeals has stated that “[t]he public's interest
in expeditious resolution of litigation always favors dismissal.”
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).
The Court finds that the Plaintiffs’ conduct has caused an
unreasonable delay that is due to lack of prosecution of their
claims.
Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996);
Columbia Falls Aluminum Co. v. Wausau Underwriters Ins. Co., 36
F. App'x 284, 286 (9th Cir. 2002).
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(2) Docket Management
The Court has expended two years and considerable resources
on this case.
Any further effort would consume limited judicial
resources and take the Court’s attention away from other active
cases.
See McDermott v. Palo Verde Unified Sch. Dist., 638 F.
App'x 636, 638 (9th Cir. 2016) (affirming dismissal and holding
that the plaintiff “interfered with the district court's ability
to manage its trial calendar, and a further delay of the trial
would thwart the public interest in the prompt resolution of
cases”).
(3) Prejudice to Defendants
The third factor weighs in favor of dismissal.
Defendants have provided evidence establishing that
Plaintiffs’ failure to prosecute has caused them significant
prejudice.
See Columbia Falls Aluminum Co. v. Wausau
Underwriters Ins. Co., 36 F. App'x 284, 286 (9th Cir. 2002).
Defendants have expended substantial time and resources in the
preparation for the multi-plaintiff, multi-claim trial.
W. Coast
Theater Corp., 897 F.2d at 1524 (recognizing time and money as
forms of prejudice).
Necessary Disclosure of Pending Litigation
The President of the Defendant Association of Apartment
Owners of Makaha Valley Plantation (“the AOAO”) provided a
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declaration.
In that declaration, he indicated that that the
AOAO has been required to disclose the pending status of the case
for the last two years.
The President attested that the AOAO has
been informed that the presence of the lawsuit has impaired,
affected terms and/or made it more difficult for units to be
purchased, sold, financed, and/or re-financed.
(Sowell Decl. at
¶ 7, ECF No. 160-1).
Insurance Premium Increase
The AOAO insurance broker provided a declaration indicating
that since the filing of the lawsuit, the insurance carrier of
the AOAO declined to renew its policy.
The change in insurance
carriers resulted in a substantial annual premium increase.
deductible increased from $2,500 to $75,000.
The
(Savio Decl. at ¶¶
6-7, ECF No. 160-2).
The Ninth Circuit Court of Appeals has held that a
plaintiff’s unreasonable delay creates a rebuttable presumption
that the defendants suffered prejudice.
Ash v. Cvetkov, 739 F.2d
493, 496 (9th Cir. 1984) (internal citations omitted).
Prejudice
may come in the forms of lost witness memory, lost evidence, or
the additional time and money that the defendants spend as a
result of the plaintiffs’ conduct.
W. Coast Theater Corp. v.
City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990); Nealey v.
Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1281 (9th
Cir. 1980).
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Plaintiffs’ unreasonable delay has caused Defendants to
suffer prejudice.
Allowing the case to continue would further
prejudice Defendants.
(4) Availability of Less Drastic Alternatives
The fourth factor weighs in favor of dismissal.
The Court has repeatedly utilized alternative methods to
encourage Plaintiffs to diligently prosecute their case and
comply with the Court’s orders and the Local Rules.
See Malone
v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) (favoring
dismissals that occur after the district court employs
alternative measures).
The Court held four pre-trial hearings to help Plaintiffs
understand the procedural and evidentiary rules associated with
the Trial.
For the first two hearings, Charles and Deneen Hicks
were late.
The Court advised Plaintiffs that they must be on
time for all hearings.
(ECF No. 135).
At the morning session of
the July 11, 2016 pre-trial hearing, Stacey Hicks was not present
and was unreachable by telephone.
In the afternoon session, the
Court reached Stacey Hicks and cautioned her that her failure to
appear at future hearings may constitute failure to prosecute and
warrant dismissal of her claims.
(ECF No. 147).
On July 14,
2016, the Court filed an ORDER TO SHOW CAUSE after Charles and
Deneen Hicks failed to appear at the previously scheduled July
14
14, 2016 pre-trial hearing.
(ECF No. 153).
The ORDER TO SHOW
CAUSE required Plaintiffs’ presence for a hearing on July 15,
2016, and warned all Plaintiffs that failure to prosecute or to
comply with the Court’s ORDER TO SHOW CAUSE could result in
involuntary dismissal.
(Id.) Plaintiffs did not appear at the
July 15, 2016 hearing.
(ECF No. 158).
The Court’s numerous
warnings to Plaintiffs have gone unheeded.
See Malone v. U.S.
Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) (recognizing that
“warning a plaintiff that failure to obey a court order will
result in dismissal can suffice to meet the ‘consideration of
alternatives’ requirement”).
Plaintiffs are pro se and are proceeding in forma pauperis.
There is no indication that monetary sanctions would be effective
in compelling diligent prosecution or compliance with the Court’s
orders or local rules.
Wade v. Ratella, 407 F.Supp.2d 1196, 1209
(S.D. Cal. 2005).
The Court finds that there are no viable alternatives to
dismissal.
Repeated attempts to advise Plaintiffs about the
importance of diligent prosecution have gone unheeded.
Plaintiffs have been afforded multiple opportunities to conform
their attendance, behavior, and submissions to this Court’s
orders and the Local Rules, to no avail.
Thompson v. Housing
Auth., 782 F.2d 829, 831-32 (9th Cir. 1986) (per curiam)
(affirming dismissal where district court provided plaintiff with
15
abundant opportunity to comply with its orders and local rules).
(5) Public Policy Favoring Disposition of Cases on their Merits
The fifth factor disfavors dismissal, Hernandez v. City of
El Monte, 138 F.3d 393, 399 (9th Cir. 1998), but carries limited
weight where, as here, the plaintiffs failed to work towards a
disposition on the merits.
Morris v. Morgan Stanley & Co., 942
F.2d 648, 652 (9th Cir. 1991) (recognizing that “[a]lthough there
is indeed a policy favoring disposition on the merits, it is the
responsibility of the moving party to move towards that
disposition at a reasonable pace, and to refrain from dilatory
and evasive tactics”).
Four of the five factors strongly favor dismissal.
Dismissal of the case for Plaintiffs’ failure to prosecute is
appropriate.
Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d
1007, 1022 (9th Cir. 2002) (holding that the public policy factor
favoring disposition on the merits is insufficient to overcome
weight of the other four factors).
1381, 1384-85 (9th Cir. 1996).
Al-Torki v. Kaempen, 78 F.3d
The five-factor test provides an
outline “for a district judge to think about what to do, not a
series of conditions precedent before the judge can do anything.”
Valley Eng'rs Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th
Cir. 1998).
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Plaintiffs have been provided with a fair opportunity to
present their case before a jury.
Plaintiffs have been
repeatedly advised that they, like all litigants, are bound by
Court deadlines, orders, and the Local Rules.
The Court has
explained relevant trial procedures for the pro se Plaintiffs’
benefit, and has afforded them leniency on many occasions.
Plaintiffs have chosen to abandon their case four days before
Trial.
Plaintiffs have not contacted the Court since their July
14, 2016 unsupported request, by one Plaintiff, for a
continuance.
CONCLUSION
Plaintiff Deneen Hicks’ Motion for Continuance (ECF No. 154)
is DENIED.
Defendants’ Motion to Dismiss (ECF No. 156) is GRANTED.
Fourteen days have passed without response to Defendant’s Motion
to Dismiss for lack of prosecution.
The case is DISMISSED WITH PREJUDICE.
//
//
//
//
//
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Pursuant to Fed. R. Civ. P. 41(b), the Clerk of Court is
directed to ENTER JUDGMENT and CLOSE THE CASE.
IT IS SO ORDERED.
Dated:
July 28, 2016, Honolulu, Hawaii.
___________________________________
Helen Gillmor
United States District Judge
Charles A. Hicks; Deneen Hicks; and Stacey Hicks v. Association
of Apartment Owners of Makaha Valley Plantation; and Hawaii
First, Inc., Civil No. 14-00254HG-KJM; ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND FAILURE TO COMPLY
WITH COURT ORDERS AND COURT RULES (ECF NO. 156) and DISMISSING
THE CASE WITH PREJUDICE.
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