Dunn et al v. Kuhio Auto Group /Kuhio Motors et al
ORDER DISMISSING CASE. Signed by JUDGE DERRICK K. WATSON on 11/7/2016. -- The Court DISMISSES this action and directs the Clerk of Court to close this case. (ecs, )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 HAWAI‘I
LORETTA B. DUNN; LAUREN M.
CIVIL NO. 16-00319 DKW-KJM
ORDER DISMISSING CASE
KUHIO MOTORS, INC. dba KUHIO
AUTO GROUP; RYAN MACKEY;
LANCE E ROHRER, et al.,
ORDER DISMISSING CASE
On June 16, 2016, Plaintiffs Loretta B. Dunn and Lauren M. Dunn,
proceeding pro se, filed a complaint against Kuhio Motors, Inc. dba Kuhio
Auto Group (“Kuhio Auto”) and Hyundai Motors America (“Hyundai”), alleging
primarily state law violations arising from the July 2015 trade-in of two used
vehicles and a financed-purchase of a new vehicle, which they contend was a
“lemon.” On October 11, 2016, the Court entered an order granting Defendants’
motions to dismiss1 and granting Plaintiffs leave to file an amended complaint by
The Order granted the following motions: Kuhio Auto’s Motion to Dismiss for Lack of Subject
Matter Jurisdiction (Dkt. No. 16); TD Auto and TD Bank’s Motion to Dismiss And Joinder In
Defendant Kuhio Auto Group’s Motion To Dismiss (Dkt. No. 22); Hyundai’s Motion to Dismiss
October 31, 2016. Dkt. No. 49. The Court cautioned Plaintiffs that failure to file
an amended complaint by October 31, 2016 would result in the dismissal of this
action without prejudice.
Instead of filing an amended complaint in this Court, Plaintiffs elected to file a
new civil action against these same defendants in the Fifth Circuit Court, State of
Hawaii on October 7, 2016. See Dunn v. Kuhio Motors , Inc., 5CC16-1-000152
(available at http://hoohiki.courts.hawaii.gov/#/case?caseId=5CC161000152).
Courts have the authority to 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 an action for
failure to comply with an order requiring the plaintiff 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
and Joinder to Kuhio Auto’s Motion to Dismiss for Lack of Subject Matter Jurisdiction (Dkt. No.
25); and Kuhio Auto’s Joinders to TD Defendants and Hyundai’s motions. (Dkt. Nos. 37 and 38).
of cases on their merits.” 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 specific circumstances presented and in light of
Plaintiffs’ election to initiate a civil action in Hawaii state court, apparently in lieu of
proceeding here. The Court’s October 11, 2016 Order was clear:
As discussed above, the Court GRANTS leave to file an
amended complaint, consistent with the terms of this Order, by
October 31, 2016. This Order limits Plaintiffs to the filing of
an amended complaint that attempts to cure the specific
deficiencies identified in this Order.
Failure to file an amended complaint by October 31, 2016 will
result in automatic dismissal of this action without prejudice.
Plaintiffs are granted leave to file an amended complaint,
consistent with the terms of this Order. Failure to file an
amended complaint by October 31, 2016 will result in the
dismissal of this action without prejudice.
10/11/16 Order at 12-14 (Dkt. No. 49).
The Court attempted to avoid outright dismissal of this action by granting
Plaintiffs leave and providing specific guidance regarding the filing of an amended
complaint. 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 adequate here, given Plaintiffs’ election to file a
new action in state court and failure to comply with the Court’s October 11, 2016
Order. The Court acknowledges that the public policy favoring disposition of cases
on their merits weighs against dismissal. On balance, however, because four
factors favor dismissal, this factor is outweighed.
On the basis of the foregoing, the Court DISMISSES this action and directs
the Clerk of Court to close this case.
IT IS SO ORDERED.
DATED: November 7, 2016 at Honolulu, Hawai‘i.
Dunn v. Kuhio Auto Group et al.; CV 16-00319 DKW-KJM; ORDER
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