Fernandez v. State of Hawai'i et al
ORDER DISMISSING REMAINING CLAIMS AND DIRECTING THAT THE CASE BE CLOSED. Signed by JUDGE LESLIE E. KOBAYASHI on 05/22/2017. (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 May 23, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
AMBROSE S. FERNANDEZ, JR.
STATE OF HAWAII, ET AL.,
CIVIL 15-00487 LEK-KSC
ORDER DISMISSING REMAINING CLAIMS
AND DIRECTING THAT THE CASE BE CLOSED
On November 19, 2015, pro se Plaintiff Ambrose S.
Fernandez, Jr. (“Plaintiff”) filed a document that has been
construed as his Complaint.
[Dkt. no. 1.]
On March 14, 2017,
this Court issued its Order Granting in Part and Denying in Part
Defendant the State of Hawaii’s Motion for Judgment on the
Pleadings, or in the Alternative, to Dismiss for Failure to
Prosecute (“3/14/17 Order”).1
[Dkt. no. 32.2]
The 3/14/17 Order dismissed all of Plaintiff’s tort
claims against all Defendants with prejudice, but denied the
State’s Motion to the extent that the State sought judgment on
the pleadings as to Plaintiff’s claims under the Americans with
Defendant State of Hawai`i (“the State”) filed its Motion
for Judgment on the Pleadings, or in the Alternative, to Dismiss
for Failure to Prosecute (“Motion”) on September 28, 2016. [Dkt.
no. 22.] The State is the only defendant that has appeared in
this case. [3/14/17 Order at 3.]
The 3/14/17 Order is also available at 2017 WL 988103.
Disabilities Act (“ADA”), 42 U.S.C. § 12182, et seq., and
Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C.
[3/14/17 Order at 8-9.]
The 3/14/17 Order also noted
that Plaintiff appeared to have abandoned the case, and this
Court ordered Plaintiff to appear at a hearing on May 1, 2017 to
show cause why the case should not be dismissed for failure to
prosecute (“Show Cause Hearing”).
[Id. at 10-11.]
The Clerk’s Office served the 3/14/17 Order on
Plaintiff via first class mail to an address on Wilder Avenue
Plaintiff’s address of record in this case,
however, is an address on University Avenue (“University
See Complaint at pg. 1.
Plaintiff never notified
this district court that he changed his address.3
Office attempted to serve the Amended Rule 16 Scheduling Order,
filed January 17, 2017 (“1/17/17 Scheduling Order”), on Plaintiff
at his University Address, but it was returned by the United
States Post Office (“the Post Office”).
The Post Office provided
the Wilder Address as Plaintiff’s current address.
Local Rule 83.1 states, in pertinent part:
A pro se party shall . . . file and serve on all
other parties who have appeared in the action any
change of address, and the effective date of the
change. The notice required by this rule shall be
filed within fourteen (14) days of the change.
Failure to comply with this rule may result in
sanctions, including but not limited to monetary
fines, dismissal of the case, or entry of a
The Clerk’s Office resent the 1/17/17 Scheduling Order to
Plaintiff at the Wilder Address, and the Clerk’s Office served
the 3/14/17 Order on Plaintiff at the Wilder Address.
those two orders were returned by the Post Office, and Plaintiff
is presumed to have received them.4
On April 20, 2017, this Court issued an entering order
rescheduling the Show Cause hearing for May 15, 2017 (“4/20/17
[Dkt. no. 34.]
The Clerk’s Office attempted to serve the
4/20/17 EO on Plaintiff via certified mail, return receipt
requested, at the Wilder Address.
[Dkt. nos. 35, 36.]
on May 16, 2017, it was returned as undeliverable.
Plaintiff failed to appear at the Show Cause Hearing.
[Minutes, filed 5/15/17 (dkt. no. 37).]
This Court also notes
that Plaintiff did not file any document responding to the
In fact, Plaintiff did not file a response to the
State’s Motion, has not filed anything in this case since
There is no evidence in the record to rebut the
presumption that Plaintiff received the 1/17/17 Scheduling Order
and the 3/14/17 Order, which were sent, with the proper postage,
to the address provided for Plaintiff by the Post Office. See,
e.g., Fernandez v. Harrington, Case No. LA CV 10-05681-VBF-PJW,
2015 WL 11216743, at *3 (C.D. Cal. Feb. 24, 2015) (“to rebut the
presumption that petitioner’s legal assistant received the R&R in
the ordinary course of the mail shortly after the Clerk’s Office
mailed it with proper address and proper postage, petitioner must
present ‘clear and convincing evidence’ that for some reason he
did not receive it” (some citations omitted) (citing In re
Bucknum, 951 F.2d 204, 207 (9th Cir. 1991))).
January 15, 2016, and failed to appear before the magistrate
judge at either the scheduling conference on February 29, 2016 or
the trial re-setting conference on January 17, 2017.
Order at 1, 4.
Plaintiff’s failure to appear at the May 15, 2017 Show
Cause Hearing hypothetically could be due to the fact that he did
not receive the 4/20/17 EO.
However, there is no indication in
the record that Plaintiff attempted to appear on May 1, 2017 –
the original date specified for the Show Cause Hearing in the
Further, Plaintiff did not notify this district
court either that the University Address was no longer valid or
that the Wilder Address was no longer valid, as Local Rule 83.1
required him to do.
Because of Plaintiff’s failure to submit the
required notices that he changed his address, this Court has no
way to contact him.
Viewing the record in this case as a whole, this Court
FINDS that Plaintiff has failed to show good cause for his
failure to prosecute this case.
Fed. R. Civ. P. 41(b) states:
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. Unless the dismissal order states otherwise,
a dismissal under this subdivision (b) and any
dismissal not under this rule – except one for
lack of jurisdiction, improper venue, or failure
to join a party under Rule 19 – operates as an
adjudication on the merits.
The State did file a motion to dismiss the action for failure to
prosecute, and Plaintiff has not shown good cause for his failure
to prosecute the case.
In addition, after weighing the five dismissal factors
set forth in Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th
Cir. 2011),5 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.
Court FINDS that Defendants will not be prejudiced by dismissal
because only the State – which requested dismissal for failure to
prosecute – has appeared in this action, and there are no less
drastic alternatives available at this time.
This Court therefore CONCLUDES that all of Plaintiff’s
remaining claims in this case – i.e. his ADA claim and his
Section 504 claim – must be DISMISSED because of Plaintiff’s
failure to prosecute the case.
The dismissal of Plaintiff’s
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).
remaining claims is WITHOUT PREJUDICE to the filing of a separate
case asserting these claims because this Court CONCLUDES that
there is no basis in the record for a dismissal with prejudice.
This Court emphasizes that, although Plaintiff may
choose to bring his ADA and Section 504 claims in a new case, he
has no remaining claims, and he cannot file an amended complaint
in this case.
This Court therefore DIRECTS the Clerk’s Office to
close the case immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 22, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
AMBROSE S. FERNANDEZ, JR. VS. STATE OF HAWAII, ET AL; CIVIL
15-00487 LEK-KSC; ORDER DISMISSING REMAINING CLAIMS AND DIRECTING
THAT THE CASE BE CLOSED
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