Cabaluna et al v. Human Health Service, Secretary Of et al

Filing 26

ORDER DISMISSING CASE WITH PREJUDICE. Signed by JUDGE LESLIE E. KOBAYASHI on 08/05/2015. Plaintiffs' Complaint, which this Court previously dismissed without prejudice, is HEREBY DISMISSED WITH PREJUDICE. This Cour t DIRECTS the Clerk's Office to close the case on September 2, 2015, unless Plaintiffs file a motion for reconsideration of this Order by August 26, 2015 (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 served by first class mail on 08/06/2015

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

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Plaintiffs,
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vs.
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SECRETARY OF HUMAN HEALTH
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SERVICE, ET AL.,
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Defendants.
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_____________________________ )

CV 15-00112 LEK-RLP

ORDER DISMISSING CASE WITH PREJUDICE
On April 2, 2015, pro se Plaintiff Mary Gold Cabaluna
(“Cabaluna”) filed a “Letter of Complaint” (“Complaint”) on
behalf of her minor daughter, T.T.

On April 30, 2015, this Court

issued its Order Dismissing Complaint and Denying Application to
Proceed in District Court Without Prepaying Fees or Costs
(“4/30/15 Order”).

[Dkt. no. 5.]

In the 4/30/15 Order, this

Court concluded that, because there is no indication that
Cabaluna is an attorney licensed to practice in this district,
she cannot bring claims pro se on behalf of T.T.

This Court

therefore dismissed the Complaint, but gave T.T. leave to file an
amended complaint through a licensed attorney.

[Id. at 6-7.]

On May 11, 2015, Cabaluna filed a document titled
“Amended Complaint,” [dkt. no. 13,] which this Court construed as
her “Proposed Complaint,” on behalf of herself and T.T.
(collectively “Plaintiffs”).

[Order Striking Proposed Complaint

Filed on May 11, 2015, filed 5/26/15 (dkt. no. 18) (“5/26/15
Order”), at 1.]

This Court struck the Proposed Complaint

because: 1) its claims on behalf of Cabaluna did not state a
claim upon which relief can be granted; and 2) Cabaluna continued
to attempt to bring claims on behalf of T.T.
The 5/26/15 Order directed Plaintiffs to file any
amended complaint by June 26, 2015.

This Court cautioned

Plaintiffs that, if they failed to file their amended complaint
by June 26, 2015 or if they filed an amended complaint which did
not address the issues identified in the 5/26/15 Order, this
Court would dismiss the case with prejudice and direct the
Clerk’s Office to close the case.

[Id. at 6-7.]

This Court

subsequently extended the deadline to July 27, 2015.

[Order

Granting in Part and Denying in Part Motion Filed on June 19,
2015, filed 6/25/15 (dkt. no. 25), at 1.]
Since Plaintiffs have not filed an amended complaint to
correct the deficiencies in the Complaint by the deadline, this
Court has the discretion to dismiss the 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

2

Fed. R. Civ. P. 41(b)).1

After weighing the five dismissal

factors set forth in Dreith v. Nu Image, Inc., 648 F.3d 779, 788
(9th Cir. 2011),2 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 Plaintiffs
did not serve the Complaint, and there are no less drastic
alternatives available at this time.
Plaintiffs’ Complaint, which this Court previously
dismissed without prejudice, is HEREBY DISMISSED WITH PREJUDICE.
This Court DIRECTS the Clerk’s Office to close the case on
September 2, 2015, unless Plaintiffs file a motion for
reconsideration of this Order by August 26, 2015.
IT IS SO ORDERED.
1

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

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).
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DATED AT HONOLULU, HAWAII, August 5, 2015.

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

MARY GOLD CABALUNA VS. SECRETARY OF HUMAN HEALTH SERVICES, ET AL;
CIVIL 15-00112 LEK-RLP; ORDER DISMISSING CASE WITH PREJUDICE

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