Rucker v. Venture Airlines
Filing
165
ORDER GRANTING DEFENDANT AIR VENTURES HAWAII, LLC'S MOTION TO DISMISS SECOND AMENDED COMPLAINT (ECF NO. 149 ) WITH PREJUDICE - Signed by JUDGE HELEN GILLMOR on 12/6/2017. "Defendant's Motion to Dismiss (ECF No. 149) is GRANTED. Plaintiff's Second Amended Complaint is DISMISSED WITH PREJUDICE. The Clerk of the Court is ordered to CLOSE THE CASE." (emt, )CERTIFICATE OF SERVICEPartici pants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Katrina Rucker shall be served by first class mail to the address of record on December 7, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KATRINA RUCKER,
Plaintiff,
vs.
AIR VENTURES HAWAII, LLC,
Defendant.
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Civ. No. 16-00492 HG-RLP
ORDER GRANTING DEFENDANT AIR VENTURES HAWAII, LLC’S MOTION TO
DISMISS SECOND AMENDED COMPLAINT (ECF No. 149) WITH PREJUDICE
In September 2016, Plaintiff Katrina Rucker filed a lawsuit
against Defendant Air Ventures Hawaii, LLC.
Plaintiff alleges
she went on an airplane sight-seeing tour operated by the
Defendant and hit her head on the door of the plane when
entering.
Plaintiff claims Defendant was negligent and seeks
damages.
Plaintiff is proceeding pro se.
ongoing for more than fourteen months.
Proceedings have been
Plaintiff has continually
failed to follow both the Federal Rules of Civil Procedure and
the Local Rules for the District of Hawaii throughout the
proceedings.
Plaintiff has filed more than ten frivolous Motions and made
numerous subpoena requests in violation of the rules.
1
Plaintiff
has been monetarily sanctioned for failure to follow the
applicable rules and has not paid the sanction.
Plaintiff has
repeatedly failed to comply with Court orders and delayed
proceedings.
Defendant filed a Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 41(b) for Plaintiff’s consistent failure to
comply with the Local Rules, the Federal Rules of Civil
Procedure, and the Court’s orders.
Defendant’s Motion to Dismiss (ECF No. 149) is GRANTED.
Plaintiff’s Second Amended Complaint is DISMISSED WITH
PREJUDICE.
PROCEDURAL HISTORY
On September 6, 2016, Plaintiff, proceeding pro se, filed a
Complaint.
(ECF No. 1).
The next day, on September 7, 2016, Plaintiff filed an
AMENDED COMPLAINT.
(ECF No. 6).
On September 16, 2016, the District Court issued a
Deficiency Order as Plaintiff failed to pay the required filing
fee or file an Application to Proceed in District Court Without
Prepayment of Fees.
(ECF No. 7).
On October 5, 2016, Plaintiff paid the filing fee.
8).
On the same date, Plaintiff filed a MOTION TO AMEND
2
(ECF No.
COMPLAINT.
(ECF No. 9).
Also on October 5, 2016, Plaintiff filed a Motion for
Plaintiff to Use PACER and ECF/Electronic Filing System.
(ECF
No. 10).
On October 6, 2016, the Magistrate Judge issued a Minute
Order denying Plaintiff’s request to file documents using the
electronic filing system.
(ECF No. 12).
On October 24, 2016, Plaintiff filed a MOTION FOR
RECONSIDERATION RE: PLAINTIFF’S REQUEST TO FILE DOCUMENTS
ELECTRONICALLY.
(ECF No. 14).
On October 27, 2016, the Magistrate Judge issued an ORDER
DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF PLAINTIFF’S
REQUEST TO FILE DOCUMENTS ELECTRONICALLY.
(ECF No. 16).
On November 14, 2016, Plaintiff filed a NOTICE OF
PLAINTIFF’S UNAVAILABILITY DATES DUE TO SURGERY.
(ECF No. 20).
On November 18, 2016, the Parties filed a CONSENT TO
JURISDICTION BY UNITED STATES MAGISTRATE JUDGE.
(ECF No. 23).
On December 6, 2016, the Magistrate Judge held a hearing on
Plaintiff’s Motion to File an Amended Complaint.
The Magistrate Judge granted the Motion.
(ECF No. 26).
Plaintiff was given
leave until December 13, 2016 to file her Second Amended
Complaint.
(Id.)
Plaintiff did not file her Second Amended Complaint by
December 13, 2016.
3
On December 20, 2016, Plaintiff filed a Second Motion to
Amend Complaint.
(ECF No. 34).
On December 21, 2016, the Magistrate Judge issued a Minute
Order denying Plaintiff’s Second Motion to Amend Complaint.
No. 35).
(ECF
The Magistrate Judge extended the deadline for
Plaintiff to file her Second Amended Complaint to December 27,
2016.
(Id.)
On December 29, 2016, Plaintiff filed her SECOND AMENDED
COMPLAINT.
(ECF No. 36).
On January 18, 2017, Plaintiff filed a MOTION TO CANCEL
SETTLEMENT CONFERENCE AND ALL ATTEMPTS AT MEDIATION.
(ECF No.
38).
On the same date, the Magistrate Judge issued a Minute Order
denying Plaintiff’s Motion to Cancel Settlement Conference and
All Attempts at Mediation.
(ECF No. 37).
The Magistrate Judge
permitted Plaintiff to appear by telephone at the settlement
conference set for January 23, 2017.
(Id.)
On January 23, 2017, the Parties appeared at a settlement
conference.
(ECF No. 41).
A settlement was not reached.
(Id.)
On March 7, 2017, Plaintiff filed a MOTION TO FREEZE
DEFENDANT’S ASSETS.
(ECF No. 51).
On the same date, Plaintiff filed a MOTION FOR THE USE OF
ONLY KING’S ENGLISH DURING TRIAL AND DEPOSITIONS.
(ECF No. 52).
On March 8, 2017, the Magistrate Judge issued a Minute Order
4
denying Plaintiff’s Motion to Freeze Defendant’s Assets and
Plaintiff’s Motion for the Use of Only King’s English During
Trial and Depositions.
(ECF No. 53).
On March 10, 2017, Plaintiff filed the following motions:
(1)
MOTION FOR DEPOSITION TRANSPARENCY AND
PROTECTIVE ORDER (ECF No. 54);
(2)
MOTION TO PRESERVE EVIDENCE (ECF No. 55);
(3)
2nd MOTION TO FREEZE DEFENDANT’S ASSETS (ECF
No. 56);
(4)
MOTION FOR JUDGE AND CLERK TRANSPARENCY (ECF
No. 57).
On March 13, 2017, the Magistrate Judge issued the following
orders:
(1)
ORDER DENYING PLAINTIFF’S MOTION FOR
DEPOSITION TRANSPARENCY AND PROTECTIVE ORDER
(ECF No. 59);
(2)
ORDER DENYING PLAINTIFF’S MOTION TO PRESERVE
EVIDENCE (ECF No. 61);
(3)
ORDER DENYING PLAINTIFF’S SECOND MOTION TO
FREEZE DEFENDANT’S ASSETS (ECF No. 62); and,
(4)
ORDER DENYING PLAINTIFF’S MOTION FOR JUDGE
AND CLERK TRANSPARENCY. (ECF No. 60).
Also on March 13, 2017, Plaintiff filed a document entitled,
“MOTION FOR TEMPORARY ORDERS IMMEDIATELY HOLDING ALL DEPOSITIONS
AND ALL SUBPOENAS AND REQUEST FOR A HEARING WITH ORAL ARGUMENTS.”
(ECF No. 63).
On the same date, the Magistrate Judge issued a Minute Order
construing Plaintiff’s filing as a Motion to Stay Discovery.
5
(ECF No. 64).
The Magistrate Judge set a status conference on
Plaintiff’s Motion for March 15, 2017.
(ECF Nos. 64, 65).
The
Parties were permitted to appear at the status conference by
telephone.
(Id.)
On March 15, 2017, the Magistrate Judge held a Status
Conference.
(ECF No. 66).
The Magistrate Judge called Plaintiff
twice at the telephone number she provided and she did not
answer.
(Id.)
Following the hearing, the Magistrate Judge set a
hearing on Plaintiff’s Motion to Stay Discovery for May 5, 2017.
(ECF No. 67).
On March 18, 2017, Plaintiff sent letters to the Magistrate
Judge accusing employees of the Clerk’s Office of discrimination,
abuse of power, and failure to provide specific reasons for
declining to file certain documents she submitted.
(ECF Nos. 68,
69).
On March 24, 2017, the Magistrate Judge issued a Minute
Order addressing Plaintiff’s letters and found that there was no
basis for Plaintiff’s complaints regarding the Clerk’s Office.
(ECF No. 70).
On April 13, 2017, Defendant filed an Opposition to
Plaintiff’s Motion to Stay Discovery.
(ECF No. 77).
On April 17, 2017, Plaintiff filed a MOTION TO FINE
DEFENDANT FOR UNETHICAL BEHAVIOR.
(ECF No. 79).
On April 18, 2017, the Magistrate Judge issued a Minute
6
Order denying Plaintiff’s Motion to Fine Defendant for Unethical
Behavior.
(ECF No. 82).
On April 21, 2017, Plaintiff filed an APPLICATION FOR
SUBPOENAS.
(ECF No. 86).
On April 24, 2017, Plaintiff filed a SECOND MOTION TO FINE
DEFENDANT FOR UNETHICAL BEHAVIOR.
(ECF No. 84).
On the same date, the Magistrate Judge issued a Minute Order
denying Plaintiff’s Second Motion to Fine Defendant for Unethical
Behavior.
(ECF No. 83).
On April 28, 2017, the Defendant filed a MOTION TO QUASH
PLAINTIFF KATRINA RUCKER’S SUBPOENAS DATED APRIL 14, 2017.
(ECF
No. 91).
Defendant also filed a NOTICE OF OBJECTIONS TO PLAINTIFF
KATRINA RUCKER’S SUBPOENAS DATED APRIL 14, 2017.
(ECF No. 92).
Also on April 28, 2017, Starr Adjustment Services, Inc.
filed a Motion to Quash a Subpoena filed by Plaintiff.
89).
(ECF No.
Starr Adjustment Services, Inc.’s Motion was filed as a
Miscellaneous Case No. MC 17-00133DKW-KSC.
(ECF No. 89).
On May 3, 2017, Plaintiff submitted a letter requesting
issuance of subpoenas.
(ECF No. 95).
On May 5, 2017, the Magistrate Judge held a hearing on
Plaintiff’s Motion to Stay Discovery.
(ECF NO. 94).
On May 15, 2017, the Magistrate Judge issued an ORDER
DENYING PLAINTIFF KATRINA RUCKER’S MOTION FOR TEMPORARY ORDERS
7
IMMEDIATELY HOLDING ALL DEPOSITIONS AND ALL SUBPOENAS AND REQUEST
FOR HEARING WITH ORAL ARGUMENT FILED MARCH 13, 2017.
(ECF No.
97).
On June 19, 2017, Plaintiff filed a REQUEST TO ATTEND ALL
HEARINGS/CONFERENCES/MEETINGS REQUIRED BY THE COURT VIA PHONE.
(ECF No. 106).
On June 21, 2017, the Magistrate Judge issued a Minute Order
denying Plaintiff’s Request.
(ECF No. 108).
On June 27, 2017, the Magistrate Judge held a hearing on
Defendant’s Motion to Quash Plaintiff Katrina Rucker’s Subpoenas
Dated April 14, 2017.
(ECF No. 109).
On June 28, 2017, the Magistrate Judge issued an ORDER
GRANTING (1) DEFENDANT’S MOTION TO QUASH PLAINTIFF’S SUBPOENAS
DATED APRIL 14, 2017 AND (2) STARR ADJUSTMENT SERVICES, INC.’S
MOTION TO QUASH SUBPOENA DATED APRIL 18, 2017.
(ECF No. 110).
On July 10, 2017, Plaintiff filed a LETTER REQUEST FOR
ISSUANCE OF SUBPOENAS.
(ECF No. 112).
On July 21, 2017, Plaintiff filed a document entitled,
“PLAINTIFF’S REQUEST FOR MEDICAL ACCOMMODATIONS AND REMOVAL OF
ALL MISCELLANEOUS CASES.”
(ECF No. 113).
On July 25, 2017, the Magistrate Judge issued a Minute Order
denying Plaintiff’s Request.
(ECF No. 114).
On July 27, 2017, Defendant filed DEFENDANT AIR VENTURES
HAWAII, LLC’S MOTION FOR ATTORNEY’S FEES.
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(ECF No. 117).
On August 7, 2017, Plaintiff filed a document entitled,
“PLAINTIFF’S MOTION TO RECUSE KEVIN CHANG AS PRESIDING JUDGE FOR
CIVIL CASE NUMBER 16-00492 AND HEARING REQUEST.”
(ECF No. 120).
On August 10, 2017, Plaintiff filed a second “MOTION TO
RECUSE KEVIN CHANG AS PRESIDING JUDGE.”
(ECF No. 122).
On September 7, 2017, Defendant filed a MEMORANDUM IN
OPPOSITION TO PLAINTIFF KATRINA RUCKER’S MOTION TO RECUSE.
(ECF
No. 124).
On September 13, 2017, Plaintiff filed a document entitled,
“MOTION FOR DEFENDANT TO DEFINE CONDITIONS FOR ACUIRING
EVIDENCE.”
(ECF No. 125).
On the same date, Plaintiff filed a document entitled,
“MOTION FOR DEFENDANT TO RELEASE INTERRATORIES TO PLAINTIFF.”
(ECF No. 126).
Also on September 13, 2017, Plaintiff filed a MOTION FOR A
UNITED STATES DISTRICT JUDGE.
(ECF No. 127).
On September 14, 2017, Defendant filed DEFENDANT AIR
VENTURES HAWAII, LLC’S SUBMISSION OF UNCITED LEGAL AUTHORITY IN
REFERENCE TO PLAINTIFF KATRINA RUCKER’S MOTION TO RECUSE KEVIN
CHANG AS PRESIDING JUDGE FOR CIVIL CASE NUMBER 16-00492 FILED
AUGUST 7, 2017.
(ECF No. 128).
On September 15, 2017, the Magistrate Judge issued a Minute
Order denying Plaintiff’s “MOTION FOR DEFENDANT TO DEFINE
CONDITIONS FOR ACUIRING EVIDENCE” and “MOTION FOR DEFENDANT TO
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RELEASE INTERRATORIES TO PLAINTIFF.”
(ECF No. 129).
On the same date, the Magistrate Judge issued a Minute Order
construing Plaintiff’s Motion for a United States District Judge
as a revocation of Plaintiff’s consent to have the case
adjudicated by the Magistrate Judge.
(ECF No. 130).
Following the Minute Order, on September 15, 2017, the case
was reassigned to United States District Judge Helen Gillmor.
(ECF No. 131).
On September 19, 2017, the Magistrate Judge issued an ORDER
GRANTING DEFENDANT’S MOTION FOR ATTORNEY’S FEES.
(ECF No. 133).
On September 20, 2017, Plaintiff filed a document entitled,
“CERTIFICATE OF SERVICE: HAWAII BAR ASSOCIATION COMPLAINT AGAINST
STEPHEN DYER.”
(ECF No. 134).
On September 27, 2017, the Magistrate Judge issued a Minute
Order denying as moot Plaintiff’s “Motion to Recuse Kevin Chang
as Presiding Judge.”
(ECF No. 135).
On the same date, Plaintiff filed a third “MOTION TO RECUSE
KEVIN CHANG AS PRESIDING JUDGE FOR CIVIL CASE NUMBER 16-00492 AND
HEARING REQUEST.”
(ECF No. 136).
On September 28, 2017, the Magistrate Judge issued another
Minute Order denying Plaintiff’s “Motion to Recuse Kevin Chang as
Presiding Judge.”
(ECF No. 138).
On October 3, 2017, Plaintiff sent a letter to the
Magistrate Judge entitled “PLAINTIFF’S RESPONSE TO JUDGE’S
10
REQUEST FOR ADVICE ON RECUSAL HEARING.”
(ECF No. 140).
On the same date, Magistrate Judge Chang issued an ORDER OF
RECUSAL.
(ECF No. 141).
as the Magistrate Judge.
Magistrate Judge Puglisi was reassigned
(ECF No. 142).
On October 11, 2017, Defendant filed DEFENDANT AIR VENTURES
HAWAII, LLC’S MOTION TO DISMISS SECOND AMENDED COMPLAINT.
(ECF
No. 149).
On November 3, 2017, Plaintiff filed a document entitled,
“PLAINTIFF’E RESPONSE TO DEFENDANT’S REQUEST TO DISMISS SECOND
AMMNEDED COMPLAINT.”
(ECF No. 153).
On November 20, 2017, Defendant filed DEFENDANT AIR VENTURES
HAWAII, LLC’S REPLY IN SUPPORT OF MOTION TO DISMISS SECOND
AMENDED COMPLAINT FILED 10/11/2017.
(ECF No. 164).
STANDARD OF REVIEW
District Courts retain broad discretion to control their
dockets and in the exercise of that power may impose sanctions
including, where appropriate, dismissal.
Thompson v. Housing
Authority of City of Los Angeles, 782 F.2d 829, 831 (9th Cir.
1986) (per curiam).
Federal Rule of Civil Procedure 41(b) provides:
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
11
venue, or failure to join a party under Rule 19 —
operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b) grants district courts discretion to
dismiss an action for failure to comply with federal or local
rules of civil procedure, failure to prosecute, or failure to
comply with the court’s orders.
Hells Canyon Pres. Council v.
U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).
The Local Rules of Practice for the United States District
Court for the District of Hawaii also authorize dismissal when a
party fails to comply with the rules.
District of Hawaii Local
Rule 11.1 (“Failure of counsel or of a party to comply with any
provision of these rules is a ground for imposition of sanctions,
including a fine, dismissal, or other appropriate sanction.”).
ANALYSIS
A case may be dismissed involuntarily for failure to comply
with the federal rules of procedure, failure to comply with the
local rules of procedure, or failure to comply with a court order
pursuant to Federal Rule of Civil Procedure 41(b).
Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ghazali v. Moran, 46
F.3d 52, 53 (9th Cir. 1995) (per curiam).
To determine if dismissal is warranted, the District Court
must consider:
(1)
the public’s interest in expeditious resolution of
litigation;
12
(2)
the court’s need to manage its docket;
(3)
the risk of prejudice to the defendant;
(4)
the availability of less drastic alternatives; and,
(5)
the public policy favoring disposition of cases on
their merits.
In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460
F.3d 1217, 1226 (9th Cir. 2006).
1.
Public’s Interest In Expeditious Resolution Of
Litigation
The Ninth Circuit Court of Appeals has stated that “the
public’s interest in expeditious resolution of litigation always
favors dismissal.”
Yourish v. Cal. Amplifier, 191 F.3d 983, 990
(9th Cir. 1999).
In this case, proceedings commenced on September 6, 2016.
Plaintiff has caused unreasonable delays in the fourteen months
of proceedings up through November 2017.
On December 6, 2016, the Magistrate Judge held a hearing on
Plaintiff’s Motion to Amend Complaint.
(ECF No. 26).
The
Magistrate Judge granted Plaintiff leave to her file her Second
Amended Complaint by December 13, 2016.
(Id.)
Plaintiff did not
comply with the Magistrate Judge’s order.
On December 20, 2016, a week after the deadline for
Plaintiff to file her Second Amended Complaint, Plaintiff filed a
Second Motion to Amend Complaint.
13
(ECF No. 34).
The Magistrate
Judge denied Plaintiff’s Second Motion, but he granted her an
extension of time to file her Second Amended Complaint by
December 27, 2016.
(ECF No. 35).
Plaintiff again failed to
comply with the Magistrate Judge’s order.
Plaintiff filed her
Second Amended Complaint two days late, on December 29, 2016.
(ECF No. 36).
Plaintiff delayed proceedings significantly over the
fourteen months by filing frivolous motions that were neither
based in law or fact.
Plaintiff filed numerous Motions in
violation of the Federal Rules of Civil Procedure and the Local
Rules for Practice in the United States District Court for the
District of Hawaii.
Plaintiff has continued to file frivolous
Motions that wasted judicial resources despite notice that her
Motions violated the rules.
On January 18, 2017, Plaintiff filed a Motion to Cancel
Settlement Conference.
(ECF No. 38).
The Magistrate Judge
denied the Motion but allowed Plaintiff to participate at the
settlement conference by telephone.
(ECF No. 37).
On March 7, 2017, Plaintiff filed a “Motion to Freeze
Defendant’s Assets” and a “Motion for Use of Only King’s
English.”
(ECF Nos. 51, 52).
Both Motions were frivolous, had
no basis in law or fact, and were denied.
(ECF No. 53).
Three days later, Plaintiff filed additional frivolous
Motions.
On March 10, 2017, Plaintiff filed a “Motion for
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Deposition Transparency and Protective Order,” a “Motion to
Preserve Evidence,” a “Second Motion to Freeze Defendant’s
Assets,” and a “Motion for Judge and Clerk Transparency.”
(ECF
Nos. 54, 55, 56, 57).
On March 13, 2017, the Magistrate Judge issued four separate
Orders denying Plaintiff’s Motions.
(ECF Nos. 59, 60, 61, 62).
The Magistrate Judge’s Orders explained that Plaintiff’s Motions
failed to comply with the rules and had no basis in law or fact.
Plaintiff attempted to delay proceedings further on March
13, 2017, by filing a Motion entitled “MOTION FOR TEMPORARY
ORDERS IMMEDIATELY HOLDING ALL DEPOSITIONS AND ALL SUBPOENAS AND
REQUEST FOR A HEARING WITH ORAL ARGUMENT.”
(ECF No. 63).
The
Magistrate Judge held a Status Conference as to Plaintiff’s
Motion but she failed to attend the hearing and did not answer
calls at the telephone number she provided to the Court.
No. 66).
(ECF
The Magistrate Judge continued the hearing until May 5,
2017.
The Magistrate Judge denied Plaintiff’s Motion on May 15,
2017.
(ECF No. 97).
Plaintiff filed additional frivolous Motions in April 2017.
On April 17, 2017, Plaintiff filed a “Motion to Fine Defendant
for Unethical Behavior.”
(ECF No. 79).
The Magistrate Judge
issued a Minute Order the following day denying Plaintiff’s
Motion and explaining that despite prior warnings, Plaintiff
continued to violate the Federal Rules of Civil Procedure and the
15
Local Rules.
The Minute Order stated,
The Court has previously warned Plaintiff that she must
comply with all applicable rules and statutes in
presenting motions to the Court. This Motion fails to
comply with the Local Rules and Plaintiff has failed to
cite any legal authority to support her request. As
the Court has explained on multiple occasions,
Plaintiff’s pro se status does not excuse her from
complying with all applicable rules and statutes.
Local Rule 83.13. Plaintiff is cautioned that her
continued violation of the rules may result in the
imposition of sanctions.
(Minute Order dated April 18, 2017, ECF No. 82).
Three days later, on April 21, 2017, Plaintiff filed a
Second “Motion to Fine Defendant for Unethical Behavior.”
(ECF
No. 84).
On April 24, 2017, the Magistrate Judge issued a Minute
Order denying Plaintiff’s Second Motion to Fine Defendant for
Unethical Behavior.
(ECF No. 83).
The Minute Order warned
Plaintiff that continued violation of the rules may result in
sanctions.
The Magistrate Judge explained,
As is Plaintiff’s usual practice, she has not cited a
single legal authority for the relief sought and she
has not complied with any applicable rules. The Court
has now admonished Plaintiff on multiple occasions that
she must comply with all applicable rules and statutes.
In its 4/18/17 Entering Order, the Court cautioned
Plaintiff that her continued violation of the rules may
result in the imposition of sanctions.
Plaintiff is HEREBY WARNED that the next motion she
files that does not comply with all applicable rules
and statutes and that does not cite a legal basis for
relief will result in the imposition of sanctions
against her. Plaintiff’s stream of meritless and
unsupported motions are wasting valuable judicial
resources and causing a disproportionate of time to be
16
expended....
(Minute Order dated April 24, 2017, ECF No. 83).
Despite the Magistrate Judge’s warning, Plaintiff continued
to file documents and Motions that did not comply with the rules.
On May 3, 2017 and July 10, 2017, Plaintiff sent letters
requesting issuance of subpoenas in violation of the rules.
Nos. 95, 112).
(ECF
On July 21, 2017, Plaintiff filed a Motion,
entitled “PLAINTIFF’S REQUEST FOR MEDICAL ACCOMODATIONS AND
REMOVAL OF ALL MISCELLANEOUS CASES,” in violation of the rules.
(ECF No. 114).
On September 13, 2017, Plaintiff filed more frivolous
Motions that were in violation of the rules.
The Motions were
entitled, “MOTION FOR DEFENDANT TO DEFINE CONDITIONS FOR ACUIRING
EVIDENCE” and “MOTION FOR THE DEFENDANT TO RELEASE INTERRATORIES
TO PLAINTIFF” (ECF Nos. 125, 126).
the Motions.
The Magistrate Judge denied
(ECF NO. 129).
On September 19, 2017, the Magistrate Judge issued an ORDER
GRANTING DEFENDANT’S MOTION FOR ATTORNEY’S FEES.
(ECF No. 133).
The Magistrate Judge ordered Plaintiff to pay $1,842.50 in
attorneys’ fees to Defendant as a result of her tactics in
issuing subpoenas that “imposed an undue burden on Defendant, ...
were inconsistent with existing law, and ... were for an improper
purpose.”
(Order at p. 4, ECF No. 133).
The Magistrate Judge
explained that Plaintiff’s subpoenas failed to comply with the
17
Federal Rules of Civil Procedure because “Plaintiff failed to
obtain the signature of the Clerk of Court; she failed to
personally serve the subpoenas; and the subpoenas were unduly
burdensome and failed to allow reasonable time to comply.”
(Id.)
Plaintiff was ordered to pay the fees by October 9, 2017.
Defendant has stated that Plaintiff has not complied with the
Magistrate Judge’s Order.
(Def.’s Motion at p. 9, ECF No. 149-1;
Pla.’s Response at p. 2, ECF No. 153).
It is beyond dispute that Plaintiff has caused undue delay
in the proceedings.
Plaintiff missed multiple deadlines and made
untimely requests for extensions and stays of discovery.
Plaintiff has filed numerous burdensome, meritless motions that
have wasted judicial resources.
in favor of dismissal.
The first factor weighs heavily
ST Ventures, LLC v. KBA Assets and
Acquisitions, 699 Fed. Appx. 631, 632 (9th Cir. Oct. 17, 2017)
(finding the plaintiff’s missed deadlines, requests for
extensions, unreasonable delay, and disorganization favor
dismissal).
2.
The Court’s Need To Manage Its Docket
The trial judge is in the best position to determine if the
delay in a particular case interferes with docket management and
the public interest.
Pagtalunan, 291 F.3d at 642.
Here, Plaintiff has improperly filed numerous documents
18
including letters, notices, certificates of service, and
subpoenas.
(See e.g., ECF Nos. 20, 38, 42, 43, 68, 69, 85, 86).
Plaintiff has attempted to file documents in violation of the
rules and sent correspondence to the Court through improper
means.
On March 10, 2017, the Clerk of Court sent a letter to
Plaintiff to explain that her attempts to file discovery
materials were in violation of the Federal Rules of Civil
Procedure.
(ECF No. 58).
In response, on March 18, 2017, Plaintiff sent letters to
the Magistrate Judge accusing employees of the Clerk’s Office of
discrimination, abuse of power, and failure to provide specific
reasons for declining to file certain documents she submitted.
(ECF Nos. 68, 69).
On March 24, 2017, the Magistrate Judge issued a Minute
Order addressing Plaintiff’s letters and found that there was no
basis for Plaintiff’s complaints regarding the Clerk’s Office.
(ECF No. 70).
Plaintiff continued to burden the Clerks Office and the
Court with her improper filings.
On April 24, 2017, the Clerk of
Court sent a letter to Plaintiff to inform her that the subpoenas
she submitted did not comply with the rules.
(ECF No. 87).
On
September 27, 2017, Plaintiff sent a correspondence by e-mail to
the Magistrate Judge’s Chambers in violation of the rules.
19
(ECF
No. 137).
Plaintiff’s numerous late, meritless, and frivolous filings
and Motions have interfered with the Court’s ability to manage
its docket.
Plaintiff’s filings have consumed an inordinate
amount of the Court’s resources and time.
The Court must be able
to manage its docket without being subject to continuous,
repeated noncompliance by a pro se plaintiff.
Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
The second factor also weighs heavily in favor of dismissal.
3.
The Risk Of Prejudice To The Defendant
To establish prejudice, a defendant must prove that
plaintiff’s actions impaired the defendant’s ability to proceed
to trial or threatened to interfere with the rightful decision of
the case.
Malone v. United States Postal Serv., 833 F.2d 128,
131 (9th Cir. 1987).
Unnecessary, lengthy delay by the plaintiff
creates a presumption of prejudice to the defendant.
Pagtalunan,
291 F.3d at 643; In re PPA, 460 F.3d at 1227.
Here, Plaintiff’s actions have impaired the Defendant’s
ability to proceed to trial.
Plaintiff’s numerous, meritless
pleadings have created consistent delays and incurred Defendant
significant attorneys’ fees.
Plaintiff has been ordered to pay a
portion of Defendant’s attorneys’ fees on account of her repeated
failure to comply with the rules.
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Plaintiff has not paid the
attorneys’ fees.
There is significant risk that Defendant will
face continued prejudice based on Plaintiff’s unreasonable
delays.
The third factor supports dismissal pursuant to Fed. R. Civ.
P. 41(b).
4.
The Availability Of Less Drastic Alternatives
Plaintiff has been warned numerous times that dismissal may
be warranted based on her continued failure to comply with the
rules and Court orders.
Despite the warnings, Plaintiff has
continued to file frivolous motions with no basis in law or fact
in violation of both the Federal Rules of Civil Procedure and the
Local Rules.
Plaintiff has refused to comply with Court orders
and continues to violate the rules.
Plaintiff has not paid the
monetary sanctions imposed on September 19, 2017 as of the date
of this Order.
The Court has already imposed less drastic alternatives and
there are no other alternatives possible.
See Namohala v. Maeda,
Civ. No. 11-cv-00786JMS-KSC, 2014 WL 584256, *5 (D. Haw. Feb. 11,
2014).
5.
The fourth factor favors dismissal.
Public Policy Favoring Disposition Of Cases on Their
Merits
Public policy favors disposition of cases on the merits and
this factor will nearly always weigh against dismissal.
21
Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998).
The fifth factor, however, must be balanced against the weight of
the other four factors in determining if dismissal is appropriate
pursuant to Fed. R. Civ. P. 41(b).
Namohala, 2014 WL 584256, *5.
Here, the first four factors all favor dismissal of the
case.
The public policy in favor of adjudication on the merits
does not outweigh the other factors.
Plaintiff’s continued
delaying tactics, failure comply with the rules, refusal to
comply with Court orders, and waste of judicial resources has
prevented an adjudication on the merits.
Dismissal is warranted pursuant to Federal Rule of Civil
Procedure 41(b).
CONCLUSION
Defendant’s Motion to Dismiss (ECF No. 149) is GRANTED.
Plaintiff’s Second Amended Complaint is DISMISSED WITH
PREJUDICE.
The Clerk of the Court is ordered to CLOSE THE CASE.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, December 6, 2017.
Katrina Rucker v. Air Ventures Hawaii, LLC; Civ. No. 16-00492 HGRLP; ORDER GRANTING DEFENDANT AIR VENTURES HAWAII, LLC’S MOTION
TO DISMISS SECOND AMENDED COMPLAINT (ECF No. 149) WITH PREJUDICE
22
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