De La Fuente v. Nago et al

Filing 33

ORDER DISMISSING CASE WITH PREJUDICE. Signed by JUDGE LESLIE E. KOBAYASHI on 07/07/2017. The claims in Plaintiff's Complaint that the Court previously dismissed without prejudice are HEREBY DISMISSED WITH PREJUDI CE. There being no remaining claims in this case, the Court DIRECTS the Clerk's Office to enter final judgment and close this case on July 28, 2017, unless Plaintiff files a motion for reconsideration of this Order by July 24, 2017. The final ju dgment shall be in favor of Defendants pursuant to the 3/28/17 Order and ths instant Order. (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
“ROCKY” ROQUE DE LA FUENTE,

)
)
Plaintiff,
)
)
vs.
)
)
SCOTT T. NAGO, in his
)
official capacity as Chief
)
Election Officer, State of
)
Hawaii,
)
)
Defendant.
)
_____________________________ )

CIVIL 16-00398 LEK-KJM

ORDER DISMISSING CASE WITH PREJUDICE
On July 19, 2016, pro se Plaintiff Roque De La Fuente
filed his Complaint for: 1) Violation of the Due Process Clause –
42 U.S.C. § 1983 – Undue Burden 2) Violation of the Equal
Protection Clause (“Complaint”) against Defendants Scott T. Nago,
in his official capacity as Chief Election Officer (“Nago”), and
the State of Hawai`i (“the State” and collectively “Defendants”).
[Dkt. no. 1.]

On March 28, 2017, this Court issued its Order

Granting in Part and Denying in Party Defendants’ Motion to
Dismiss (“3/28/17 Order”).

[Dkt. no. 25.1]

The 3/28/17 Order

dismissed all claims against the State with prejudice, and also
dismissed all claims insofar as they sought injunctive relief
related to the 2016 presidential election.
18.]

[3/28/17 Order at 17-

This Court dismissed the remainder of Plaintiffs’ claims
1

The 3/28/17 Order is also available at 2017 WL 1159094.

for violations of the First and Fourteenth Amendments to the
United States Constitution without prejudice.

[Id.]

Because it

was possible that Plaintiff’s claims could be cured by amendment,
this Court gave Plaintiff until May 9, 2017 to file a motion for
leave to file an amended complaint.

[Id. at 18.]

On May 9, 2017, Plaintiff filed a Motion for Leave to
Amend Original Complaint (“Motion for Leave”).

[Dkt. no. 28.]

On June 7, 2017, Plaintiff filed a Motion to Withdraw Motion for
Leave to File Amended Complaint (“Motion to Withdraw”).
no. 31.]

[Dkt.

The Motion to Withdraw noted that “Plaintiff

understands that withdraw[al] of his pending motion for leave to
file an amended complaint terminates any further litigation of
this action in this Court.”

[Motion to Withdraw at 1.]

In an

Entering Order filed on June 9, 2017, the magistrate judge
granted the Motion to Withdraw and deemed the Motion for Leave
withdrawn.

[Dkt. no. 32.]
There is no complaint pending in this case, Plaintiff

has not cured the defects that the Court identified in the
3/28/17 Order, and the Court therefore has the discretion to
dismiss this case with prejudice.

See Yourish v. Cal Amplifier,

191 F.3d 983, 988 (9th Cir. 1999) (holding that the plaintiff’s
failure to comply with a minute order setting a deadline to file
the amended complaint gave the district court the discretion to

2

dismiss the cause under Fed. R. Civ. P. 41(b)).2

After weighing

the five dismissal factors set forth in Dreith v. Nu Image, Inc.,
648 F.3d 779, 788 (9th Cir. 2011),3 the Court finds the public
interest in the 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 Court finds that Defendants will not be prejudiced by
dismissal, and there are no less drastic alternatives available
at this time.
The claims in Plaintiff’s Complaint that the Court
previously dismissed without prejudice are HEREBY DISMISSED WITH
PREJUDICE.

There being no remaining claims in this case, the

Court DIRECTS the Clerk’s Office to enter final judgment and
close this case on July 28, 2017, unless Plaintiff files a motion

2

Rule 41(b) states, in relevant part, that “[i]f 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.”
3

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 (citation and internal quotation marks
omitted).
3

for reconsideration of this Order by July 24, 2017.

The final

judgment shall be in favor of Defendants pursuant to the 3/28/17
Order and ths instant Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 7, 2017.

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

ROCKY ROQUE DE LA FUENTE VS. SCOTT T. NAGO, ETC.; CIVIL 16-00398
LEK-KJM; ORDER DISMISSING CASE WITH PREJUDICE

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