Legg vs. McCarter; et al.

Filing 11

ORDER DISMISSING CASE re 1 - Signed by JUDGE DERRICK K. WATSON on 12/20/2017. "On the basis of the foregoing, the Court DISMISSES this action without prejudice and directs the Clerk of Court to close 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). Paul Bradley Legg served by first class mail to the address of record on December 20, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
PAUL BRADLEY LEGG,
Plaintiff,

CIVIL NO. 17-00511 DKW-KJM
ORDER DISMISSING CASE

vs.
RICKY McCARTER, et al.,
Defendants.

On October 11, 2017, Plaintiff Paul Bradley Legg, proceeding pro se, filed
several documents, which the Court liberally construed as a Complaint, alleging
fraud and numerous other grievances against several individuals and entities due to
the “seizure” of certain real property. See Compl., Dkt. No. 1-1. On November 6,
2017, Legg filed an Application to proceed in forma pauperis (“IFP Application”).1
In a November 13, 2017 Order, the Court granted Legg’s IFP Application and
dismissed the Complaint, but granted Legg limited leave to file an amended
complaint by no later than December 15, 2017. Dkt. No. 6 (11/13/17 Order).
Legg has yet to file an amended complaint or request additional time in which to do

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On October 11, 2017, the district court issued a deficiency order, directing Legg to either pay the
applicable filing fee or to submit a completed in forma pauperis application within twenty-eight
days. Dkt. No. 3.

so, or to otherwise respond coherently to the Court’s November 13, 2017 Order.2
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.”). More specifically, 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)). Upon careful
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On December 18, 2017, the Court received a letter from Legg (Dkt. No. 10), stating that “I am
taking your suggestion to exhaust my administra[tive] remedy by entering the Hawaii State
Judiciary federated Court as a ‘Special Appearance’ of a ‘Private Party of Interest’ without
waiving rights, or consent to jurisdiction for the purpose of retrieval of my House(s), estate, and its
properties.” He also asks “leave of the Federal District Court to make settlement in the State
Federated Court, and remove the bank sponsored former Tenants, and exhaust my Administrative
remedy as a ‘Private party of Interest.’” As best the Court can discern, the December 18 letter
does not specifically reference the Court’s 11/13/17 Order, the filing of any amended complaint, or
the proceedings in this civil action. The Court takes no action with respect to any request made in
the December 18, 2017 letter.
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consideration of these factors, the Court concludes that dismissal without prejudice
is warranted under the circumstances.
The Court’s November 13, 2017 Order was clear:
[B]ecause because Legg fails to state a claim, several defendants
are immune from suit, and the Court is without subject matter
jurisdiction, the Court DISMISSES the Complaint and GRANTS
Legg limited leave to file an amended complaint in accordance
with the terms of this order by December 15, 2017.
****
Because Legg fails to state a plausible claim for relief, the
Complaint is dismissed. Because amendment may be possible,
dismissal is with leave to amend, as further described below.
****
The dismissal of the Complaint is without prejudice, and Legg is
granted leave to amend to attempt to cure the deficiencies
identified above. . . . Failure to file an amended complaint by
December 15, 2017 will result in the automatic dismissal of this
action without prejudice.
Based upon the foregoing, the Complaint is DISMISSED with
leave to amend (Dkt. No. 1), the IFP Application is GRANTED
(Dkt. No. 4), and both the Motion for Leave to Amend and the
Motion for Service are DENIED as moot (Dkt. No. 5).
Legg is granted limited leave to file an amended complaint in
accordance with the terms of this order by December 15, 2017.
The Court CAUTIONS Legg that failure to file an amended
complaint by December 15, 2017 will result in the automatic
dismissal of this action without prejudice.
11/13/17 Order at 1–2, 12, 16–18.
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Legg’s failure to comply with the November 13, 2017 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). Legg 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).
Legg failed to discharge his responsibility to prosecute this action despite the
Court’s express warnings about dismissal in its prior order. See 11/13/17 Order at
16–18. Under these circumstances, the public policy favoring the resolution of

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disputes on the merits does not outweigh Legg’s failure to file an amended
complaint, as directed by the Court in its November 13, 2017 Order.
The Court attempted to avoid outright dismissal of this action by granting
Legg 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 Legg’s voluntary failure to
comply with the Court’s Order, and apparent election to instead “exhaust his
administrat[ive] remedy by entering the Hawaii State Judiciary federated Court as a
‘Special Appearance’ of a ‘Private Party of Interest[.]’” 12/18/17 Letter, Dkt. No.
10. 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.

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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 20, 2017 at Honolulu, Hawai‘i.

Legg v. McCarter, et al., Civil No. 17-00511 DKW-KJM; ORDER DISMISSING CASE

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