Wilkinson v. Association of Apartment Owners of the Villa on Eaton Square

Filing 114

FINDINGS AND RECOMMENDATION TO DISMISS ACTION. Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 11/17/2017. This Court RECOMMENDS that the action be DISMISSED pursuant to FRCP 41(b). (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 the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) CIVIL NO. 16-00175 DKW-KSC
)
) FINDINGS AND RECOMMENDATION TO
) DISMISS ACTION
Plaintiffs,
)
vs.
)
)
AOAO VILLA ON EATON SQUARE, ET )
)
AL.,
)
)
Defendants.
)
_______________________________ )
CHERYL WILKINSON; MICHAEL
WARREN,

FINDINGS AND RECOMMENDATION TO DISMISS ACTION
On November 16, 2017, the Court held a Further Order to
Show Cause hearing.

Plaintiffs Michael Warren and Cheryl

Wilkinson (collectively “Plaintiffs”) failed to appear.

Because

it is clear that they are unwilling to prosecute this case and
will continue to disregard deadlines, orders, and rules, the
Court RECOMMENDS that this action be DISMISSED for the reasons
articulated below.
BACKGROUND
As the parties and the Court are familiar with the
history of this case, the Court includes only those facts
pertinent to the recommendation of dismissal.
On June 13, 2017, the Court authorized the withdrawal
of Plaintiffs’ former counsel.

Doc. No. 86.

Mr. Warren appeared

by phone at the hearing on the motion to withdraw.

Plaintiffs

were notified that they are personally responsible for complying

with all court orders and time limitations established by the
applicable rules.
On August 4, 2017, the Court held a hearing on
Defendants’ motion to compel, which sought an order compelling
Plaintiffs to produce signed medical authorization forms.
Plaintiffs did not respond to the motion and did not appear at
the hearing.

The Court granted the motion and ordered Plaintiffs

to sign, date and furnish the relevant medical authorization
forms to defense counsel by August 14, 2017.

Doc. No. 88 (August

4, 2017 oral ruling); Doc. No. 89 (August 11, 2017 order
memorializing oral ruling).

The Court cautioned Plaintiffs that

their failure to comply with the Order might result in the
imposition of sanctions, including dismissal of this action.
Doc. No. 89.
On September 6, 2017, this Court issued an Order to
Show Cause (“OSC”) why this case should not be dismissed for
failure to prosecute and failure to comply with the Court’s
August 11, 2017 Order.

Doc. No. 93.

The Court cautioned

Plaintiffs that failure to appear at the OSC hearing would result
in a recommendation that this action be dismissed.

Id.

On September 12, 2017, in response to a reminder from
defense counsel that medical authorization forms had yet to be
provided, Ms. Wilkinson texted grainy photographs of two of the
three medical authorization forms.

2

Doc. No. 98 at 7, Ex. I.

During the course of communications between defense counsel and
Ms. Wilkinson, Ms. Wilkinson represented that Plaintiffs had
retained Missouri counsel.
On September 29, 2017, Mr. Warren requested a status
conference and he submitted documentation regarding his
relocation to Missouri.

Doc. Nos. 99 & 101.

Despite having

requested the October 2, 2017 status conference and being
notified of the same, Plaintiffs failed to appear.

Mr. Warren

had to be contacted by phone and the Court was unable to reach
Ms. Wilkinson.

Contrary to Ms. Wilkinson’s representation to

defense counsel, Mr. Warren informed the Court that Plaintiffs
were still attempting to retain counsel.1
The Court continued the OSC hearing from October 6 to
October 23, 2017 to facilitate Plaintiffs’ efforts to obtain
counsel.

Plaintiffs never responded to the OSC and they failed

to appear at the October 23, 2017 OSC hearing.
On October 23, 2017, the Court issued a Further OSC:
The Court HEREBY ORDERS Plaintiffs to provide
Defendants with original signed medical
authorizations by November 15, 2017. Digital
formats will not suffice. This is Plaintiffs’
final opportunity to comply with the August 11,
2017 Order. Failure to do so will result in a
recommendation that sanctions issue, including but
not limited to dismissal of this action.

1

To date, no attorneys have appeared, or attempted to
appear, on Plaintiffs’ behalf.
3

A further OSC hearing will be held on
November 16, 2017 at 9:45 a.m. Plaintiffs are
ordered to appear at this hearing. If they wish
to appear telephonically, they must submit a
written request by November 9, 2017. As before,
Plaintiffs are warned that their failure to appear
will result in a recommendation that this action
be dismissed. If Plaintiffs comply with the
November 15, 2017 deadline, the further OSC
hearing will be vacated.
Doc. No. 103.
On November 10, 2017, Defendants filed a Notice of
Bankruptcy Petition Filed by Plaintiffs.2

Doc. No. 111.

On November 14, 2017, the Court received an email3 from
Mr. Warren indicating that he and Ms. Wilkinson would sign
medical authorization forms.

The Court issued the following

Entering Order (“EO”) in response:
EO: On 10/23/17, the Court issued a Further Order
to Show Cause [103], which ordered Plaintiffs to
provide Defendants with original signed medical
authorizations by 11/15/17. The Court cautioned
Plaintiffs that it was Plaintiffs’ final
opportunity to comply with the Court’s 8/11/17
Order and that failure to do so would result in a
recommendation that sanctions issue, including but
not limited to dismissal of this action. On
11/14/17, the Court received an email from
Plaintiff Michael Warren stating that he and
Plaintiff Cheryl Wilkinson “have agreed to and
granted permission to have our medical records
from January 2013 to present released to the

2

Insofar as this action was initiated by Plaintiffs (the
debtors), 11 U.S.C. § 362(a)’s automatic stay provisions do not
apply. In re Miller, 397 F.3d 726, 729 (9th Cir. 2005) (“The
automatic stay is applicable only to proceedings against the
debtor.”).
3

Defense counsel were also recipients of the email.
4

lawyer team only. If you require our written
permission on a specific form, please forward the
forms to me for us to fill out and return.” Based
on this email, sent 22 days after the issuance of
the Further OSC, Plaintiffs will not meet the
11/15/17 deadline to provide original signed
medical authorizations. Even though Plaintiffs
were twice served with the Further OSC, by first
class mail and by email, they waited until the
11th hour to respond. This dilatory conduct is
unacceptable. Plaintiffs have previously assured
Defendants that they would provide[] executed
medical authorization forms, but have yet to take
any meaningful steps to do so. Because Plaintiffs
have neither sought nor received an extension of
time to provide the original signed medical
authorizations, failure to provide the same by
tomorrow will constitute yet another violation of
a Court order.
In the Further OSC, the Court also ordered
Plaintiffs to appear at the 11/16/17 OSC hearing
and directed that any request to appear
telephonically be submitted, in writing, by
11/9/17. At present, the Court intends to proceed
with the OSC hearing. Plaintiffs having failed to
request telephonic appearance, the Court expects
Plaintiffs to appear in person. As the Court
warned in the Further OSC, “failure to appear [at
the hearing] will result in a recommendation that
this action be dismissed.” Doc. No. 103.
Finally, although Plaintiffs claim to have moved
to the mainland, they have not filed a change of
address, in violation of Local Rule 83.1(h).
Local Rule 83.1(h) (“A pro se party shall
similarly 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.”). Parties who
fail to comply with this requirement may be
subject to sanctions, “including but not limited
to monetary fines, dismissal of the case, or entry
of judgment.” Id.

5

Doc. No. 112.

Plaintiffs did not communicate with the Court or

defense counsel in any form following the issuance of the EO, and
have yet to produce original signed medical authorizations to
defense counsel.
On November 16, 2017, the Court held the Further OSC
hearing.

Plaintiffs failed to appear.
DISCUSSION
Courts do not take failures to prosecute and failures

to comply with Court orders lightly.

Federal Rule of Civil

Procedure (“FRCP”) 41(b) authorizes the Court to sua sponte
dismiss an action for failure “to prosecute or to comply with
[the federal] rules or a court order.”4

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

Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683,
689 (9th Cir. 2005).

Unless the Court in its order for dismissal

otherwise specifies, a dismissal under this rule operates as an
adjudication upon the merits.

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

To determine whether dismissal is appropriate, the
Court must consider five factors:

“(1) the public’s interest in

expeditious resolution of litigation; (2) the court’s need to

4

FRCP 37(b)(2)(A)(v) would also provide a basis to dismiss
this action. Fed. R. Civ. P. 37(b)(2)(A)(v) (“If a party . . .
fails to obey an order to provide or permit discovery, including
an order under Rule 26(f), 35, or 37(a), the court where the
action is pending may issue further just orders. They may
include . . . dismissing the action or proceeding in whole or in
part.”).
6

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.”

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)

(citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
1992)).

Although the Court recognizes that Plaintiffs are

proceeding pro se, they are not exempt from complying with all
applicable rules.

Local Rule 83.13 (“Pro se litigants shall

abide by all local, federal, and other applicable rules and/or
statutes.”).
In view of Plaintiffs’ repeated violation of Court
orders and rules, and failure to prosecute, the Court finds that
the Pagtalunan factors support dismissal of this action.
A.

Public’s Interest in Expeditious Resolution
The public’s interest in expeditious resolution of this

litigation strongly favors dismissal.

Pagtalunan, 291 F.3d at

642 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th
Cir. 1999)) (“The public’s interest in expeditious resolution of
litigation always favors dismissal.”) (quotations omitted).
Plaintiffs’ inaction, failure to comply with Court-imposed
deadlines and orders, and failure to prosecute, are preventing
the timely progression and resolution of this action.

7

B.

The Court’s Need to Manage its Docket
For the same reasons discussed above, the second factor

weighs heavily in favor of dismissal.

Plaintiffs’ failure to

comply with Court orders and appear at proceedings has interfered
with the Court’s ability to manage its docket.

The Court, not

Plaintiffs, should control the pace of the docket.
F.3d at 990.

Yourish, 191

Indeed, “[i]t is incumbent upon the Court to manage

its docket without being subject to routine noncompliance of
litigants such as [Plaintiffs].”

Pagtalunan, 291 F.3d at 642

(citing Ferdik, 963 F.2d at 1261).
C.

The Risk of Prejudice to Defendants
Like factors one and two, the risk of prejudice to

Defendants weighs in favor of dismissal.

Plaintiffs’ conduct

will impair Defendants’ ability to proceed to trial and threatens
to interfere with the rightful decision of the case.

Id.

Defendants have made countless efforts since 2016 to secure
executed medical authorization forms from Plaintiffs.

These

authorization forms are necessary to conduct discovery regarding
Plaintiffs’ claims.

Due to Plaintiffs’ inaction, Defendants have

been unable to obtain relevant information critical to the
preparation of their defense.

The progression of this case has

been severely hindered by Plaintiffs’ dilatory conduct.

The

continued burden to Defendants, caused by the delays, would be
unduly prejudicial.
8

D.

Availability of Less Drastic Alternatives
Under the present circumstances, the Court believes

that less drastic alternatives would be ineffective.

Plaintiffs

have had multiple opportunities to provide executed medical
authorization forms to Defendants, but have neglected to do so.5
The Court has afforded Plaintiffs multiple opportunities to
comply with the August 11, 2017 Order, and has scheduled hearings
to allow Plaintiffs to explain their failures, all the while
warning them about the consequences of their disobedience.

It is

only after providing multiple opportunities to cure violations
with negative results, as detailed below, that the Court
recommends dismissal.
•

The Court’s August 4, 2017 oral ruling ordered Plaintiffs to
provide the medical authorization forms by August 14, 2017.6

•

The Court’s August 11, 2017 Order reiterated the August 14,
2017 deadline and warned Plaintiffs that disobedience of the
order may result in the imposition of sanctions, including
dismissal.

•

The September 6, 2017 OSC ordered Plaintiffs to appear on
October 6, 2017 to show cause why the case should not be
dismissed for failure to prosecute and failure to comply
with the August 11, 2017 Order. The Court cautioned
Plaintiffs that failure to appear at the OSC hearing would
result in a recommendation of dismissal.

5

Even prior to the August 11, 2017 Order, they had agreed
to provide the forms to Defendants.
6

Although Plaintiffs did not appear at the hearing,
defense counsel met and conferred with Plaintiffs’ former counsel
prior to filing the motion to compel, and had even offered an
extension of time to provide the forms.
9

•

At the October 2, 2017 status conference, which was
calendared at Mr. Warren’s request, Plaintiffs failed to
appear and only Mr. Warren could be contacted by phone.

•

The Court continued the October 6, 2017 OSC hearing until
October 23, 2017 to provide Plaintiffs with additional time
to retain counsel. Plaintiffs did not appear at the
continued OSC hearing.

•

The October 23, 2017 Further OSC granted Plaintiffs a final
opportunity to provide the medical authorization forms by
November 15, 2017. The Court again cautioned that failure
to do so would result in a recommendation that sanctions
issue, including but not limited to dismissal. Plaintiffs
were additionally warned that their failure to appear at the
Further OSC hearing on November 16, 2017 would result in a
recommendation that this action be dismissed.

•

Plaintiffs expressed their willingness to provide the
medical authorization forms on November 14, 2017, but did
not produce them by the November 15, 2017 deadline, nor
anytime thereafter. Plaintiffs did not appear at the
Further OSC hearing and never requested permission to appear
telephonically. The November 14, 2017 EO informed
Plaintiffs that they were expected to appear in person at
the Further OSC hearing and reminded them that the Court
would recommend dismissal if they failed to appear.
The foregoing series of events demonstrates that any

attempt to compel Plaintiffs’ appearance at hearings or
compliance with Court orders is an exercise in futility.

Lesser

sanctions would not effectively address Plaintiff’s contumacy.
Even four threats of dismissal could not compel Plaintiffs to
obey Court orders, appear at hearings, or prosecute their case.
Accordingly, this factor supports dismissal.7

7

To bolster its recommendation, the Court notes that
Plaintiffs have yet to file a notice with their updated contact
information. Local Rule 83.1(h) (“A pro se party shall similarly
10

E.

Public Policy Favoring Disposition of Cases on Their Merits
Finally, the Court concedes that the public policy

favoring disposition of cases on their merits weighs against
dismissal.

However, considering the totality of the

circumstances and because all of the preceding factors favor
dismissal, this factor is outweighed.
In sum, given that four of the five Pagtalunan factors
favor dismissal, this action should be dismissed for failure to
comply with Court orders and rules, and for failure to prosecute.
CONCLUSION
Based on the foregoing, this Court RECOMMENDS that the
action be DISMISSED pursuant to FRCP 41(b).

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.”). Parties who fail to comply
with this requirement may be subject to sanctions, “including but
not limited to monetary fines, dismissal of the case, or entry of
judgment.” Id. Although the Court does not have a current
mailing address for Plaintiffs, it has served orders via first
class mail to the address on record. The November 14, 2017 EO
was additionally served via email. Defendants have also served
Plaintiffs with the relevant orders via first class mail and
email. Doc. Nos. 90, 95, 106.
11

IT IS SO FOUND AND RECOMMENDED.
Dated:

Honolulu, Hawaii, November 17, 2017.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

CIVIL NO. 16-00175 DKW-KSC; WILKINSON, ET AL. V. AOAO VILLA ON EATON SQUARE,
ET AL.; FINDINGS AND RECOMMENDATION TO DISMISS ACTION

12