Hemmy et al v. A-1 Auto Sales

Filing 7

ORDER DISMISSING CASE. Signed by JUDGE DERRICK K. WATSON on 11/18/2015. ~ the Court DISMISSES this action without prejudice and directs the Clerk of Court to close this case. (ecs, )CERTIFICATE OF SERV ICEParticipants 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

MINA ELIZABETH HEMMY
JOINTLY WITH MARK ANTHONY
DIAZ AS EXECUTOR(S) AND
BENEFICIARY OF A
CONSTRUCTIVE TRUST,

CIVIL NO. 15-00432 DKW RLP

ORDER DISMISSING CASE

Plaintiffs,
vs.
A-1 AUTO SALES, A-1
ACCEPTANCE CORPORATION
CONSISTING OF CALVIN COHEN
AS THE TRUSTEE,
Defendant.

ORDER DISMISSING CASE

On October 19, 2015, Plaintiffs pro se Mina Elizabeth Hemmy and Mark
Anthony Diaz filed a Complaint, Ex Parte Motion for Temporary Restraining Order
(“TRO”) and Application to Proceed in District Court Without Prepaying Fees or
Costs (“Application”). The Complaint sought an affirmative injunction compelling
Defendant A-1 Auto Sales and/or A-1 Acceptance Company to transfer an
automobile title to Plaintiffs based on Plaintiffs’ assertion that they have fully

satisfied the balance owing. In its October 20, 2015 Order, the Court dismissed the
Complaint with limited leave to amend, denied the Ex Parte Motion for a TRO, and
denied the Application as moot. See Dkt. No. 6. The Court granted Plaintiffs until
November 13, 2015 to file an amended complaint, but as of the date of this order,
Plaintiffs have failed to do so. Because Plaintiffs failed to comply with the Court’s
order, this action is dismissed without prejudice
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.
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.”
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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.
Plaintiffs are proceeding pro se, and, therefore, the Court liberally construes
their pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
Supreme Court has instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam)).
The Court’s October 20, 2015 Order was clear:
As result of the Court’s dismissal of the Complaint for lack of
subject matter jurisdiction, Plaintiffs’ Application to Proceed In
District Court Without Prepaying Fees or Costs is DENIED as
moot.
...
Because amendment may be possible, the Court GRANTS leave
to file an amended complaint, consistent with the terms of this
Order, by November 13, 2015. This Order limits Plaintiffs to
the filing of an amended complaint that attempts to cure the
specific deficiencies identified in this Order. New or different
theories, causes of action, or additional parties are not permitted.
If Plaintiffs choose to file an amended complaint, they are
CAUTIONED that they must clearly identify the basis for this
Court’s subject matter jurisdiction. Plaintiffs should also
clearly allege the following: (1) the constitutional or statutory
right Plaintiffs believe was violated; (2) the name of the
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defendant who violated that right; (3) exactly what that
defendant did or failed to do; (4) how the action or inaction of
that defendant is connected to the violation of Plaintiffs’ rights;
and (5) what specific injury Plaintiffs suffered because of that
defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72
(1976). Plaintiffs must repeat this process for each person or
entity named as a defendant. If Plaintiffs fail to affirmatively
link the conduct of each named defendant with the specific
injury suffered, the allegation against that defendant will be
dismissed for failure to state a claim.
Plaintiffs are CAUTIONED that if they elect to file an amended
complaint, they must pay the statutory filing fee or submit a fully
executed application to proceed without prepayment of fees or
costs.
Based upon the foregoing, Plaintiffs’ Ex Parte Motion for TRO
is DENIED, the Complaint is DISMISSED with limited leave to
amend, and the Application is DENIED as moot. Plaintiffs are
granted leave to file an amended complaint no later than
November 13, 2015. The Court cautions Plaintiffs 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 November 13, 2015 will result in the automatic
dismissal of this action.
October 20, 2015 Order at 17-18. The Court unambiguously advised Plaintiffs that
they must file an amended complaint by November 13, 2015, or risk dismissal of the
action. Plaintiffs’ failure to do so hinders the Court’s ability to move this case
forward and indicates that Plaintiffs do not intend to litigate this action diligently.
See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir.1999) (“The public’s

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interest in expeditious resolution of litigation always favors dismissal.”). This
factor favors dismissal.
The risk of prejudice to a defendant is related to a plaintiff’s reason for failure
to prosecute an action. See Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d
at 991). Plaintiffs offer no excuse or explanation for their failure to file an amended
complaint. When a party offers a poor excuse (or, in this case, no 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. However, it is the responsibility of the moving party to
prosecute the action at a reasonable pace and to refrain from dilatory and evasive
tactics. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991).
Plaintiffs have failed to discharge their responsibility to prosecute this action despite
the Court’s express warning about the possibility of dismissal in the October 20,
2015 Order. Under these circumstances, the public policy favoring the resolution
of disputes on the merits does not outweigh Plaintiffs’ failure to file an amended
complaint, pay the filing fee or submit an application to proceed without prepayment
of fees.
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The Court attempted to avoid outright dismissal of this action by granting
Plaintiffs until November 13, 2015 to file an amended complaint establishing this
Court’s jurisdiction. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 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 Plaintiffs’ failure to meaningfully
participate in their own litigation. Under the present circumstances, the Court
believes that less drastic alternatives are not appropriate. The Court acknowledges
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: November 18, 2015 at Honolulu, Hawai’i.

Mina Hemmy, et al. v. A-1 Auto Sales ; CV 15-00432 DKW-RLP; ORDER DISMISING CASE

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