Patrakis v. Nest Labs
DISMISSAL ORDER - Signed by JUDGE DERRICK K. WATSON on 12/7/2017. "This action is DISMISSED with prejudice for Plaintiff's failure to amend his pleadings to state a cognizable claim. See In re Phenylpropanolamine (PPA) Cases, 460 F.3d 1217, 1226 (9th Cir. 2006). This dismissal shall count as a strike under 28 U.S.C. §1915(g), unless it is overturned on appeal. See Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015). The Clerk is DIRECTED to en ter judgment and terminate this case." (emt, )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). Michael Phillip Patrakis 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
MICHAEL PHILLIP PATRAKIS,
NEST LABS and TONY FADELL,
CIV. NO. 17-00454 DKW-KSC
On October 19, 2017, the Court dismissed Plaintiff’s Complaint pursuant to
28 U.S.C. § 1915(e) for Plaintiff’s failure to state a claim on which relief can be
granted.1 The Court granted Plaintiff until November 17, 2017 to file an amended
pleading that cured the Complaint’s noted deficiencies. Order, ECF No. 7.
Plaintiff has neither filed an amended complaint nor requested an extension of the
deadline to do so. It appears that he has abandoned this action. See Knapp v.
Hogan, 738 F.3d 1106, 1110 (9th Cir. 2015).
The Court may dismiss Plaintiff’s claims with or without prejudice for his
failure to comply with the October 19, 2017 Order to amend the Complaint. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) (holding plaintiff’s
Plaintiff is incarcerated at the Federal Detention Center-Honolulu (“FDC”) awaiting trial
in United States v. Patrakis, No. 1:17-cr-00109-LEK (D. Haw. 2017).
failure to comply with minute order to file amended complaint gave district court
discretion to dismiss case under Fed. R. Civ. P. 41(b)).2 The Ninth Circuit
identifies five factors that a 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 v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011); Ferdik v. Bonzelet,
963 F.2d 1258, 1260 (9th Cir. 1992).
The public interest in the expeditious resolution of this litigation, the Court’s
interest in managing its docket, the noted lack of merit of Plaintiff’s claims, and the
lack of prejudice to the unserved Defendants strongly weigh in favor of dismissal
of this action. Plaintiff was afforded an opportunity to amend his claims but has
failed to do so. Alternatives to dismissal have therefore been provided without
success, and the Court declines to provide further opportunities that appear futile.
This action is DISMISSED with prejudice for Plaintiff’s failure to amend his
pleadings to state a cognizable claim. See In re Phenylpropanolamine (PPA)
Cases, 460 F.3d 1217, 1226 (9th Cir. 2006). This dismissal shall count as a strike
under 28 U.S.C. §1915(g), unless it is overturned on appeal. See Coleman v.
Fed. R. Civ. P. 41(b) states, in pertinent part: “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.”
Tollefson, 135 S. Ct. 1759, 1763 (2015). The Clerk is DIRECTED to enter
judgment and terminate this case.
IT IS SO ORDERED.
DATED: December 7, 2017 at Honolulu, Hawai`i.
/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge
Michael Patrakis v. Nest Labs and Tony Fadell; Civil No. 17-00454 DKW KSC;
Patrakis v. Nest Labs, 1:17-cv-00454 DKW-KSC; Dfcy Dsml Ords ‘17 Patrakis 17-454 dkw (dsm fail amd)
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