King v. Pacific Guardian Life Insurance et al

Filing 10

ORDER DISMISSING PLAINTIFF'S VERIFIED COMPLAINT WITHOUT PREJUDICE. Signed by JUDGE LESLIE E. KOBAYASHI on 05/16/2016. (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
DONALD KING,

)
)
Plaintiff,
)
)
vs.
)
)
PACIFIC GUARDIAN LIFE
)
INSURANCE, ET AL.,
)
)
)
Defendants.
_____________________________ )

CIVIL 16-00103 LEK-KSC

ORDER DISMISSING PLAINTIFF’S VERIFIED COMPLAINT WITHOUT PREJUDICE
Pro se Plaintiff Donald W. King (“Plaintiff”) filed his
“Verified Conplant, Class Action.

Civil Rights Action.

Jury

Demand” (“Verified Complaint”) and an application to proceed in
forma pauperis (“Application”) on March 8, 2016.
2.]]

[Dkt. nos. 1,

Also on March 8, 2016, Chief United States District Judge

J. Michael Seabright issued an order setting the Rule 16
Scheduling Conference for May 9, 2016 before the magistrate
judge.

[Dkt. no. 3.]
This Court filed an order denying Plaintiff’s

Application on March 23, 2016 (“3/23/16 Order”).

[Dkt. no. 7.]

The Court ordered Plaintiff to either pay the required filing fee
or file an amended application by no later than May 9, 2016.1

1

This Court noted that the Plaintiff’s Application may be
incomplete and that, if he provided complete information, this
Court may be able to find that Plaintiff is unable to pay, or
give security for, court fees. [3/23/16 Order at 3.]

The Court cautioned Plaintiff that, if he failed to pay the
filing for or file an amended application, “this action may be
automatically dismissed.”

[3/23/16 Order at 3-4.]

The Clerk’s

Office sent the 3/23/16 Order to Plaintiff at the address
provided on his Verified Complaint, but it was returned as
undeliverable.

[Dkt. no. 8.]

Plaintiff has not submitted a

notice of a change of address, as required by Local Rule 83.1(h).
As of the date of this Order, Plaintiff has neither
filed an amended application nor paid the required filing fee.
Further, Plaintiff failed to appear at the May 9, 2016 Rule 16
Scheduling Conference.

[Minutes, filed 5/9/16 (dkt. no. 9).]

This Court may dismiss Plaintiff’s action based on his
failure either to pay the required filing fee or to file an
amended application.

See, e.g., Starks v. Land Title of Nev.,

Inc., 586 F. App’x 401 (9th Cir. 2014) (affirming dismissal of
pro se litigant’s action for failure to pay required filing fee
because the plaintiff failed to provide sufficient information to
allow the district court to verify her eligibility to proceed in
forma pauperis).

Plaintiff’s failure either to pay the filing

fee or to file an amended application is also a violation of the
3/23/16 Order.

In addition, Plaintiff failed to appear at the

scheduling conference.

This Court may therefore dismiss

Plaintiff’s case pursuant to Fed. R. Civ. P. 16(f)(1), which
states, in pertinent part:
2

On motion or on its own, the court may issue any
just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other
pretrial conference; [or]
. . . .
(C) fails to obey a scheduling or other
pretrial order.
After weighing the five dismissal factors set forth in Bautista
v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000),2 the
Court finds that the public interest in expeditious resolution of
this litigation and the court’s interest in managing the docket
strongly outweigh the policy favoring disposition of cases on the
merits.

Moreover, the defendants apparently have not yet been

served and will not be prejudiced by dismissal, and there are no
less drastic alternatives available at this time.
On the basis of the foregoing, Plaintiff’s Verified
Complaint is HEREBY DISMISSED WITHOUT PREJUDICE.

This Court

DIRECTS the Clerk’s Office to enter judgment and close the case
immediately.
IT IS SO ORDERED.

2

The Ninth Circuit has delineated five factors a district
court must weigh in determining whether to dismiss a case for
failure to comply with a court order: “1) the public interest;
2) the court’s need to manage the docket; 3) the risk of
prejudice to the defendant; 4) the public policy favoring
disposition of cases on their merits; and 5) the availability of
less drastic alternatives.” Bautista, 216 F.3d at 841 (citation
omitted).
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DATED AT HONOLULU, HAWAII, May 16, 2016.

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

DONALD W. KING VS. GUARDIAN LIFE INSURANCE, ET AL; CIVIL 16-00103
LEK-KSC; ORDER DISMISSING PLAINTIFF’S VERIFIED COMPLAINT WITHOUT
PREJUDICE

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