Cataluna v. Vanderford et al

Filing 141

ORDER DISMISSING CASE WITH PREJUDICE. Signed by JUDGE LESLIE E. KOBAYASHI on 01/25/2016. -- Plaintiff's claims in this case are dismissed, and she is not permitted to file a second amended complaint. This Court DIRECTS the Clerks Office to close this case on February 16, 2016, unless this Court orders otherwise. (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 were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARY GOLD CABALUNA,

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Plaintiff,
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vs.
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VINCENT VANDERFORD, ET AL.,
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Defendants.
_____________________________ )

CIVIL 14-00480 LEK-RLP

ORDER DISMISSING CASE WITH PREJUDICE
Pro se Plaintiff Mary Gold Cabaluna (“Plaintiff”) filed
her Amended Complaint in this action on November 7, 2014.
nos. 5, 5-1.1]

[Dkt.

On December 17, 2015, this Court issued its Order

Granting in Part and Denying in Part Motion to Dismiss
Plaintiff’s Claims Against Defendants State of Hawai`i and
Hawai`i Public Housing Authority in Amended Complaint [ECF
Nos. 5, 5-1] (“12/17/15 Order”).

[Dkt. no. 140.]

In the

12/17/15 Order, this Court dismissed Plaintiff’s claim pursuant
to the Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq.,
against Defendants State of Hawai`i and Hawai`i Public Housing
Authority (collectively “State Defendants”) without prejudice.
In other words, this Court allowed Plaintiff to file a second
amended complaint that included: 1) her FHA claim; 2) a state law
housing discrimination claim based on the same facts as the FHA

1

Plaintiff’s Amended Complaint has been divided into two
docket numbers because it is almost 200 pages long.

claim – assuming that she attempted to allege such a claim in the
Amended Complaint; and 3) her harassment claim against Defendant
Vincent Vanderford (“Vanderford”).
The 12/17/15 Order gave Plaintiff until January 20,
2016 to file her second amended complaint, and the order
cautioned her that, if she failed to do so, this Court would
dismiss her FHA claim with prejudice – in other words, without
leave to amend.

The 12/17/15 Order also informed Plaintiff that,

if it dismissed her FHA claim with prejudice, it would also
decline to exercise supplemental jurisdiction over her state law
claims pursuant to 28 U.S.C. § 1367.

[12/17/15 Order at 12.]

Plaintiff did not file a second amended complaint, nor
has she filed anything in this case since this Court issued the
12/17/15 Order.

Because of Plaintiff’s failure to comply with

the 12/17/15 Order, this Court has the discretion to dismiss her
Amended 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.

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.”
2

Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011),3 this Court
finds that the public 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, the defendants will not be prejudiced by

dismissal because: the State Defendants sought dismissal with
prejudice in their motion to dismiss the Amended Complaint; and
Vanderford has never appeared in this case.

Finally, this Court

finds that there are no less drastic alternatives available at
this time.
Plaintiff’s FHA claim, which this Court previously
dismissed without prejudice, is HEREBY DISMISSED WITH PREJUDICE.
There being no remaining federal law claim, this Court declines
to exercise supplemental jurisdiction over Plaintiff’s state law
claims.

Plaintiff’s state law housing discrimination claim –

assuming that the Amended Complaint alleged one – and Plaintiff’s
harassment claim are therefore DISMISSED WITH PREJUDICE.

3

The

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
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).
3

dismissal of Plaintiff’s state law claims is with prejudice
insofar as she cannot pursue those claims in this action.

This

Court expresses no opinions about the merits of Plaintiff’s state
law claims, if she brought them in state court.
This means that all of Plaintiff’s claims in this case
are dismissed, and she is not permitted to file a second amended
complaint.

Plaintiff therefore does not have any claims pending

in this case.
This Court DIRECTS the Clerk’s Office to close this
case on February 16, 2016, unless this Court orders otherwise.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 25, 2016.

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

MARY GOLD CABALUNA VS. VINCENT VANDERFORD, ET AL; CIVIL 14-00480
LEK-RLP; ORDER DISMISSING CASE WITH PREJUDICE

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