Flores v. United States of America et al

Filing 7

ORDER DISMISSING CASE. Signed by JUDGE DERRICK K. WATSON on 12/6/2016. - The Court DISMISSES this action without prejudice 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

CIVIL NO. 16-00579 DKW-KSC

XAVIER FLORES,
Plaintiff,

ORDER DISMISSING CASE

vs.
UNITED STATES OF AMERICA;
AEROTEK; ALLEGIS GROUP
COMPANY; and CASEY THIGPEN,
Defendants.

ORDER DISMISSING CASE
On October 27, 2016, Plaintiff Xavier Flores, proceeding pro se, filed a
Complaint, Application to proceed in forma pauperis (“IFP Application”), Motion
For A Lawyer, and Motion For Service. The Complaint attempted to allege claims
against the United States of America; Aerotek; Allegis Group Company; and Casey
Thigpen, a recruiter for Aerotek, under Title VII, the Americans with Disabilities
Act, the Age Discrimination in Employment Act, and the Rehabilitation Act.
In a November 7, 2016 Order, the Court granted the IFP application, denied
the pending motions, and dismissed the Complaint, but granted Flores limited leave
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to file an amended complaint in accordance with the terms of the Court’s order by no
later than November 30, 2016. Dkt. No. 6. Flores has yet to file an amended
complaint or respond to the Court’s November 7, 2016 Order in any other fashion.
As a result, this action is dismissed without prejudice.
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 a plaintiff’s
action for failure to comply with an order requiring him 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
of cases on their merits.” Id. at 642 (citing Ferdik v. Bonzelet, 963 F.2d 1258,
1260-61 (9th Cir. 1992)).

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Upon careful consideration of these factors, the Court concludes that
dismissal is warranted under the circumstances.1 The Court’s November 7, 2016
Order was clear:
Because Flores fails to state a plausible claim under any of the
theories alleged, the Complaint is DISMISSED. Because
amendment may be possible, dismissal is with leave to amend, as
detailed below.
****
Failure to file an amended complaint by November 30, 2016
will result in the automatic dismissal of this action without
prejudice.
****
Based upon the foregoing, the Complaint is DISMISSED with
leave to amend, the IFP Application is GRANTED (Dkt. No. 2),
the Motion for A Lawyer is DENIED (Dkt. No. 3), and the
Motion for Service is DENIED as moot (Dkt. No. 4).
Flores is granted limited leave to file an amended complaint in
accordance with the terms of this order by no later than
November 30, 2016. The Court CAUTIONS Flores that
failure to file an amended complaint by November 30, 2016 will
result in the automatic dismissal of this action without prejudice.
11/7/16 Order at 12, 15-16 (Dkt. No. 6).
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As noted in the Court’s prior order, because Flores is appearing pro se, the Court liberally
construes his pleadings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although he is
proceeding pro se, Flores is familiar with his federal court filing and pleading responsibilities.
Flores has filed several actions in this district within the past year, the majority of which allege
similar claims against the United States relating to both his alleged national security qualifications
and his “Tentative Work Agreement.” See, e.g., Civil Nos. 15-00408 DKW-RLP;
15-00515DKW-RLP; 15-00538 HG-RLP; 16-00009 DKW-RLP; 16-00225 LEK-KJM;
16-00561LEK-KSC; and 16-00573 DKW-KJM.

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Flores’ failure to comply with the Court’s order hinders the Court’s ability to
move this case forward and indicates that he does not intend to litigate this action
diligently. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)
(“The public’s interest in expeditious resolution of litigation always favors
dismissal.”). This factor favors dismissal.
The risk of prejudice to a defendant is related to a plaintiff’s reason for failure
to prosecute an action. See Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d
at 991). Flores offers no excuse or explanation for his failure to file a First
Amended Complaint. When a party offers a poor excuse (or, in this case, no
excuse) for failing to comply with a court’s order, the prejudice to the opposing
party is sufficient to favor dismissal. See Yourish, 191 F.3d at 991-92. This factor
favors dismissal.
Public policy favoring the disposition of cases on their merits ordinarily
weighs against dismissal. However, it is the responsibility of the moving party to
prosecute the action at a reasonable pace and to refrain from dilatory and evasive
tactics. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991).
Flores failed to discharge his responsibility to prosecute this action despite the
Court’s express warnings about dismissal in its prior order. See Dkt. No. 6. Under
these circumstances, the public policy favoring the resolution of disputes on the

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merits does not outweigh Flores’ failure to file an amended complaint, as directed by
the Court in its November 7, 2016 Order.
The Court attempted to avoid outright dismissal of this action by granting
Flores the opportunity to amend his allegations and providing specific guidance on
how to do so. 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 Flores’ voluntary failure to
comply with the Court’s order. Under the present circumstances, less drastic
alternatives are not appropriate. 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 without
prejudice and directs the Clerk of Court to close this case.
IT IS SO ORDERED.
Dated: December 6, 2016 at Honolulu, Hawai‘i.

Flores v. United States, et al.; Civil No. 16-00579 DKW-KSC; ORDER DISMISSING CASE

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