Sidman v. Young Brothers, Limited et al

Filing 44

ORDER DISMISSING CASE. Signed by JUDGE DERRICK K. WATSON on 7/28/2015. ~ the Court DISMISSES this action without prejudice and directs the Clerk of Court to close this case. (ecs, )CERTIFICATE OF SERVI CEParticipants 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 HAWAI`I

CIVIL NO. 15-00049 DKW-BMK

DANIEL SIDMAN,

Plaintiff,

ORDER DISMISSING CASE

vs.

YOUNG BROTHERS, LIMITED, a
domestic profit corporation; AON RISK
SOLUTIONS, a.k.a. AON RISK
SERVICES NORTHEAST, INC. a
foreign profit corporation, a.k.a. AON
RISK SERVICES, INC., a domestic
profit corporation,
Defendants.

ORDER DISMISSING CASE
On February 23, 2015, Plaintiff Daniel Sidman, a licensed attorney
proceeding pro se, filed a complaint against Defendants Aon Risk Services, Inc. of
Hawaii, Aon Risk Services Northeast, Inc. (“Aon”), and Young Brothers, Limited
for a scratch on his vehicle’s windshield that allegedly occurred during transport by
Young Brothers, and the denial of his subsequent insurance claim by Aon. On
June 29, 2015, the Court granted Aon’s Motion to Dismiss, and denied as moot

Sidman’s Second Application to Proceed In District Court Without Prepaying Fees
or Costs. The Court granted Sidman leave to file an amended complaint by July 20,
2015. As of the date of this order, Sidman has not filed an amended complaint, nor
paid the required filing fee or submitted an application to proceed without
prepayment of fees, and has not sought an extension of time in which to do so. Nor
has he sought reconsideration of the Court’s June 29, 2015 Order. Because Sidman
has failed to comply with the Court’s order, this action is dismissed without
prejudice.1
DISCUSSION
Federal Rule of Civil Procedure 41(b) grants district courts the authority to
sua sponte dismiss actions for failure to prosecute or for failure to comply with court
orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962) (“The power to
invoke this sanction is necessary in order to prevent undue delays in the disposition
of pending cases and to avoid congestion in the calendars of the District Courts.”).
The Court has discretion to dismiss a plaintiff’s action for failure to comply with an
order requiring him to file an amended pleading within a specified time period.

1

On July 17, 2015, Sidman filed a Limited Cross-Motion for Summary Judgment (dkt. no. 42),
asking the Court to deny Young Brothers’ Motion for Summary Judgment (dkt. no. 21). Because
the Court has already denied Young Brothers’ Motion for Summary Judgment as moot (dkt. no.
40), and because there is no pending complaint in this matter, Sidman’s Limited Cross-Motion for
Summary Judgment against Young Brothers is DENIED as moot.

2

Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). Before dismissing an
action for failure to prosecute, the Court must weigh: “(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 defendants/respondents; (4) the availability of less drastic
alternatives; and (5) the public policy favoring disposition of cases on their merits.”
Id. at 642 (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)).
Upon careful consideration of these factors, the Court concludes that dismissal is
warranted under the circumstances.
The Court’s June 29, 2015 Order was clear:
Sidman is granted to leave to file an amended complaint no later
than July 20, 2015. The Court cautions Sidman that failure to
file an amended complaint, along with the required filing fee or a
fully executed application to proceed without prepayment of fees
by July 20, 2015, will result in the dismissal of this action.
June 29, 2015 Order at 13-14. The Court unambiguously advised Sidman that he
must file an amended complaint and pay the required filing fee by July 20, 2015, or
risk dismissal of the action. Sidman’s failure to do so hinders the Court’s ability to
move this case forward and indicates that Sidman does not intend to litigate this
action diligently. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th
Cir.1999) (“The public’s interest in expeditious resolution of litigation always
favors dismissal.”). This factor favors dismissal.
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The risk of prejudice to a defendant is related to the plaintiff’s reason for
failure to prosecute an action. See Pagtalunan, 291 F.3d at 642 (citing Yourish, 191
F.3d at 991). Sidman offers no excuse or explanation for his failure to file an
amended complaint. When a party offers a poor excuse for failing to comply with a
court’s order, the prejudice to the opposing party is sufficient to favor dismissal. See
Yourish, 191 F.3d at 991-92. This factor favors dismissal.
Public policy favoring the disposition of cases on their merits ordinarily
weighs against dismissal. It is the responsibility of the moving party to prosecute
the action at a reasonable pace, however, and to refrain from dilatory and evasive
tactics. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991).
Sidman has failed to discharge his responsibility to prosecute this action despite the
Court’s express warning about the possibility of dismissal in the June 29, 2015
Order. Under these circumstances, the public policy favoring the resolution of
disputes on the merits does not outweigh Sidman’s failure to file an amended
complaint, pay the filing fee or submit an application to proceed without prepayment
of fees.
The Court attempted to avoid outright dismissal of this action by giving
Sidman until July 20, 2015 to file an amended complaint establishing this Court’s
subject matter jurisdiction. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th
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Cir. 1986) (“The district court need not exhaust every sanction short of dismissal
before finally dismissing a case, but must explore possible and meaningful
alternatives.”). Alternatives to dismissal are not appropriate given Sidman’s failure
to meaningfully participate in his own litigation. Under the present circumstances,
the Court believes that less drastic alternatives are not appropriate. The Court
concedes that the public policy favoring disposition of cases on their merits weighs
against dismissal. However, because four factors favor dismissal, this factor is
outweighed.
CONCLUSION
On the basis of the foregoing, the Court DISMISSES this action without
prejudice and directs the Clerk of Court to close this case.
IT IS SO ORDERED.
DATED: July 28, 2015 at Honolulu, Hawai’i.

Daniel Sidman v. Young Brothers Limited, et al.; Civil No. 15-00049 DKW-BMK;
ORDER DISMISSING CASE

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