Bralich v. Sullivan et al

Filing 148

ORDER GRANTING DEFENDANT SULLIVAN'S MOTION TO DISMISS THE THIRD AMENDED COMPLAINT, DISMISSING ALL CLAIMS AGAINST ALL DEFENDANTS, AND DISMISSING THE CASE re: 142 - Signed by JUDGE ALAN C. KAY on 9/17/2019. "For the foregoing reasons, the Court GRANTS Defendant Sullivan's Motion to Dismiss as unopposed in its entirety, and Plaintiff's claims are DISMISSED with prejudice and without leave to amend as against Defendant Sulliv an under Federal Rule of Civil Procedure 41(b). The Court further acts sua sponte to DISMISS Plaintiff's claims for lack of prosecution with prejudice and without leave to amend as against all Defendants." (jo)COURT'S CERTIFICATE of Service - Non-Registered CM/ECF Participants will be served by First Class Mail on September 18, 2019 to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PHILIP BRALICH, PH.D,
Plaintiff,
vs.
BARRY A. SULLIVAN, ESQ.;
MARK PIESNER; CHRIS FRY;
JOHN BATALI; WILLIAM
O’GRADY; PETER MORRELI;
CRAIG WEISSMAN; SAM PULLARA;
SCOTT ZIEGLER; TWITTER;
THROWNET A. CA-CORP.;
THROWNET B. MA-CORP.;
SALESFORCE.COM INC.;
MICROSOFT; STANFORD
UNIVERSITY; NUANCE
COMMUNICATIONS,
Defendants.

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ORDER GRANTING DEFENDANT SULLIVAN’S MOTION TO DISMISS THE THIRD
AMENDED COMPLAINT, DISMISSING ALL CLAIMS AGAINST ALL DEFENDANTS,
AND DISMISSING THE CASE
For the reasons set forth below, the Court GRANTS
Defendant Barry A. Sullivan’s Motion to Dismiss Third Amended
Complaint, ECF No. 142.

The Court further sua sponte dismisses

all claims against all defendants.

The case is hereby

DISMISSED.
BACKGROUND
Plaintiff, proceeding pro se, filed this action in
state court on July 31, 2015.

See ECF No. 1-1 (original state

court complaint).
March 3, 2016.

Plaintiff filed an amended complaint on

ECF No. 1-2 at 1 (First Am. Compl.).

On

August 4, 2016, the state court granted Defendant Barry
Sullivan’s motion for a more definite statement and gave
Plaintiff until August 12, 2016 to file a second amended
complaint.

ECF No. 45-3 at 65-69.

Because Plaintiff did not do

so, Sullivan filed a motion to dismiss.

ECF No. 47-4 at 1-10.

The state court denied the motion without prejudice and quashed
attempted service of process of Plaintiff’s late-filed second
amended complaint on Sullivan.

ECF No. 50-6 at 50-52.

Plaintiff filed a request for leave to file a third amended
complaint, which was granted by the state court on January 31,
2017.

ECF No. 51-2 at 1-2, 104-05.

Amended Complaint on March 1, 2017.

Plaintiff filed his Third
ECF No. 51-3 (Third Am.

Compl.).
Sullivan removed this action to federal court on
May 4, 2017.

ECF No. 66-5 at 93; see also ECF No. 1, CV 17-

000203 ACK-RLP (D. Haw. 2017).

This Court remanded the case

back to state court on October 30, 2017, finding that Sullivan’s
removal was untimely.

ECF No. 8, CV 17-00547.

While this case

was removed, the parties filed numerous motions, of which the
Court deferred consideration in light of the pending motion to
remand.

Id.

After remand, Defendant Microsoft filed its own

Notice of Removal on November 3, 2017.
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ECF No. 1.

Plaintiff

filed a motion to remand on November 17, 2017, which this Court
denied on January 23, 2018.

ECF Nos. 24, 81.

The Court ordered that the motions filed during the
first removal be reinstated in the instant matter.

ECF No. 8.

The Court construed the two motions Plaintiff filed to be
seeking entry of default and referred them to the magistrate
judge.
2018.

ECF No. 84.

Those motions were denied on February 23,

ECF Nos. 115, 116.

The Court then determined to first

resolve Defendant Craig Weissman and Defendant Salesforce.com
Inc.’s Motions to Dismiss, to which Defendants Microsoft and
Chris Fry (collectively, “the Salesforce Defendants”) filed
substantive joinders.

ECF Nos. 9 (“Weissman Mot.”), 10

(“Salesforce Mot.”), 11 (“Fry Joinder”), 13 (“Microsoft
Joinder”).

The remaining motions carried into Defendant

Stanford and Nuance Communications’ Motions to Dismiss, which
were scheduled to be heard before this Court on April 23, 2018.
ECF Nos. 99, 138.

On March 20, 2018, discovery was stayed

pending resolution of the motions to dismiss.

ECF No. 123.

Plaintiff’s previously filed responses to these
motions were also reinstated in the instant case.

ECF Nos. 17

(“Opp. to Salesforce”), 18 (“Opp. to Fry”), 19 (“Opp. to
Weissman”), 22 (“Opp. to Microsoft”).

Plaintiff already filed

responses to Stanford and Nuance’s motions.

ECF Nos. 20, 21.

On February 1, 2018, Plaintiff filed a “Further Response and
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Further Evidence to Counter Initial Motions.”
Supp. Resp.”).

ECF No. 92 (“Pl.

Replies were filed on March 23, 2018.

ECF

Nos. 125 (“Weissman” Reply); 126 (“Salesforce Reply”).
Plaintiff also filed a Motion to Reinclude Twitter in
the List of Defendants, ECF No. 97, which the Court granted on
April 3, 2018.

ECF No. 130.

The Court reserved determination

of the time frame in which Plaintiff must amend his pleading to
add Twitter back as a defendant pending its resolution of the
motions to dismiss scheduled for hearing on April 23, 2018.

ECF

No. 130.
The Court held a hearing on the Salesforce Defendants’
Motions and Joinders on April 9, 2018.

ECF No. 132.

By Order

dated April 10, 2018, the Court dismissed Weismann from the
action with prejudice for lack of personal jurisdiction;
dismissed Plaintiff’s patent infringement claim with prejudice;
dismissed Plaintiff’s RICO claims against the Salesforce
Defendants without prejudice and with leave to amend; dismissed
Plaintiff’s Hawaii Uniform Trade Secrets Act (“HUTSA”)
misappropriation claims against Salesforce, Weissman, and
Microsoft without prejudice and with leave to amend, but denied
Fry’s Joinder on this issue; and dismissed Plaintiff’s fraud
claims against the Salesforce Defendants without prejudice and
with leave to amend.

ECF No. 134.

The Court ordered an amended

complaint correcting the deficiencies in his pleading be filed
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within 30 days of the date of the Order addressing the matters
to be heard at the April 23, 2018 hearing.

ECF No. 134.

The Court held a hearing on Stanford University and
Nuance Communications’ Motions to Dismiss on April 23, 2018.
ECF No. 138.

By Order dated April 23, 2018, the Court granted

both Motions, dismissing Defendants Stanford and Nuance with
prejudice for lack of personal jurisdiction, subject to
discovery revealing a basis for personal jurisdiction over them.
ECF No. 139.

The Court further specified that it provided

Plaintiff 30 days from the date of the Order, dated April 23,
2018, for Plaintiff to file an amended complaint to add Twitter
back as a defendant and to address the deficiencies noted in the
Salesforce Order, ECF Nos. 130 and 134.

ECF No. 139.

Plaintiff did not file an amended complaint.
than a year passed.

More

On June 5, 2019, Defendant Sullivan filed a

Motion to Dismiss the Third Amended Complaint in its entirety,
with prejudice and without leave to amend as against all
Defendants, pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure.

ECF No. 142.

on October 8, 2019.

The Court set the matter for hearing

ECF No. 142.

Plaintiff filed a Response to

Defendant Sullivan’s Motion on June 14, 2019, stating: “I do not
object to the Motion to Dismiss . . ., not because I have
acquiesced in any of my positions or claims, but only because I
am tired of it.”

ECF No. 144 at 2.
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Defendant Sullivan filed

his Reply on June 24, 2019, noting the lack of opposition and
requesting the Motion be resolved without a hearing pursuant to
Local Rule 7.2.

ECF No. 145 at 2.

On July 15, 2019, the Court acknowledged Plaintiff’s
statement that he “do[es] not object to the Motion to dismiss,”
and Defendant Sullivan’s request that the Motion to Dismiss the
Third Amended Complaint, ECF No. 142, be decided without a
hearing.

ECF No. 146.

The Court vacated the October 8, 2019

hearing date and took the matter under consideration without a
hearing pursuant to Local Rule 7.2(d).

Id.

The Court

explicitly stated in its Minute Order that the “Motion to
Dismiss seeks dismissal as to all named Defendants” and
therefore provided any party an opportunity to object “to this
Court’s deciding the Motion to Dismiss as a non-hearing motion.”
Id.

No objections were filed.
STANDARD
Federal Rule of Civil Procedure 41(b) provides, in

relevant 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.”

In addition,

courts have the “inherent power” to “dismiss sua sponte for lack
of prosecution.”

Link v. Wabash R. Co., 370 U.S. 626, 630-31,

82 S. Ct. 1386, 1388-89, 8 L. Ed. 2d 734 (1962); see also
Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S. Ct. 2123, 2132,
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115 L. Ed. 2d 27 (1991) (holding the Court “may act sua
sponte to dismiss a suit for failure to prosecute”); Hells
Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689
(9th Cir. 2005) (holding that under some circumstances “courts
may dismiss under Rule 41(b) sua sponte”).

“The authority of a

federal trial court to dismiss a plaintiff's action with
prejudice because of his failure to prosecute cannot seriously
be doubted.”

Link v. Wabash R. Co., 370 U.S. at 629; see also

Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996)
(“Dismissal with prejudice and default on counterclaims, for
willful and inexcusable failure to prosecute, are proper
exercises of discretion under Federal Rules of Civil Procedure
41(b), 16(f), and the inherent power of the court.”).
To determine if dismissal is warranted, the District
Court must consider five factors:
(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 defendants;
(4) the public policy favoring the disposition of
cases on their merits; and
(5) the availability of less drastic sanctions.
In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994); see also In re

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Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217,
1226 (9th Cir. 2006).
DISCUSSION
The Court first addresses the ability of a single
defendant to move for dismissal of an entire action, including
claims against nonmoving defendants.

The Court finds that

Defendant Sullivan may lack the authority to seek dismissal of
the entire action under Rule 41(b).

The Court’s sua sponte

power, however, does provide authority to dismiss the entire
action.

The Court construes Defendant Sullivan’s Motion as

moving the Court to dismiss the action as against him, and
requesting the Court exercise its sua sponte power to dismiss
the action as against nonmoving Defendants.
The Court finds that the application of the five
factors relevant to the failure to prosecute warrant a dismissal
in this case.

The Court dismisses the action as to all

Defendants.
I.

The Authority of Defendant Sullivan to Seek Dismissal
of the Action as Against Nonmoving Defendants
The text of Rule 41(b) states that “a defendant may

move to dismiss the action or any claim against it.”
added).

(Emphasis

It is not obvious from the face of the statute whether

this language means:

(1) that a defendant is permitted to move

to dismiss the action against it, or any claim against it; or
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(2) that a defendant is permitted to move to dismiss the action
in its entirety, or any claim against it specifically.

If a

defendant may only seek dismissal of an action against it under
Rule 41(b), and not of the action in its entirety, then
Defendant Sullivan may not obtain through his motion alone the
dismissal of the action “in its entirety . . . as against all
Defendants.”

ECF No. 142-1 at 1.

This Circuit has considered the definition of “action”
in the context of Rule 41(a) and held that an action can refer
to either an action in its entirety or an action as against an
individual defendant.

Rule 41(a) provides for voluntarily

dismissals by a plaintiff, and under this statute a plaintiff
may only dismiss “actions, not [] individual claims.”

Hells

Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687
(9th Cir. 2005) (emphasis in original).

The Hells Canyon court

acknowledged that a literal reading of the phrase “[d]ismissal
of [a]ctions” would permit “dismissal only of an entire action
against all defendants.”

Id. (emphasis in original).

But

rather than adopt that literal reading, the court instead
interpreted Rule 41(a) to also “allow the dismissal
of all claims against one defendant.”

Id. (emphasis in

original); see also Pedrina v. Chun, 987 F.2d 608, 609 (9th Cir.
1993) (finding the word “action” in Rule 41(a)(1) meant
“dismissals of the plaintiff’s entire case,” but could also
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include dismissals of “the entirety of claims against any single
defendant”).
The Court finds it meaningful that Rule 41(a) relates
to the ability of a plaintiff to dismiss its own claims.
However, the Ninth Circuit’s definition of the term “action” in
Rule 41(a) does not appear to apply to Rule 41(b) to provide a
defendant the ability to dismiss claims that do not relate
directly to it.

The Court notes there is a scarcity of cases

directly construing Rule 41(b) in this regard.

The Court is

hesitant to read a definition of the term “action” into Rule
41(b), which would permit a single defendant the ability to
dismiss claims against other nonmoving defendants.

Instead, it

appears a defendant may only move to dismiss the claims brought
against it.1/

To hold otherwise would seem to contradict the

principles of standing.

See generally Mantin v. Broad. Music,

Inc., 248 F.2d 530, 531 (9th Cir. 1957) (considering a motion to
dismiss under Rule 12(b)(6) and holding that “moving defendants,
obviously, had no standing to seek dismissal of the action as to
the nonmoving defendants.”).

The specific inclusion of the

See, for example, Hocker v. CitiMortgage, Inc., No. 1:09-CV-00973, 2012 WL
174967, at *5 (M.D. Pa. Jan. 20, 2012) (denying a motion to dismiss “the
action” under Rule 41(b) where the motion sought dismissal of claims against
nonmoving defendants).
1/

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phrase “against it” in the text of Rule 41(b) supports this
holding.2/
Although the Court now rules that a defendant may only
seek dismissal of an action against it under Rule 41(b), the
Court may still exercise its sua sponte power to reach a
dismissal as against all Defendants in this case.

Defendant

Sullivan raises this in his Motion, and the Court therefore
construes his Motion as requesting the Court exercise its sua
sponte power.

Mot. at 6 & n.2.

Therefore, regardless of

Defendant Sullivan’s standing to seek dismissal of the action as
against nonmoving Defendants, the Court exercises its sua sponte
power to consider the failure of plaintiff to prosecute this
action as against all Defendants.3/
II.

Application the Five Factors

On the other hand, it may be argued to the contrary by applying the rule of
the last antecedent. This canon of statutory interpretation provides that “a
limiting clause or phrase . . . should ordinarily be read as modifying only
the noun or phrase that it immediately follows.” Lockhart v. United States,
136 S. Ct. 958, 962, 194 L. Ed. 2d 48 (2016) (quoting Barnhart v. Thomas, 540
U.S. 20, 26, 124 S. Ct. 376, 380, 157 L. Ed. 2d 333 (2003)) (alteration in
original). Applying the rule of the last antecedent to the phrase “a
defendant may move to dismiss the action or any claim against it” results in
an interpretation that “against it” modifies only “any claim” and not “the
action.” Thus, a defendant may move to dismiss the action, or it may move to
dismiss any claim against it.
3/ The Court reiterates that on July 15, 2019, the Court acknowledged
Plaintiff’s statement that he “do[es] not object to the Motion to dismiss,”
and Defendant Sullivan’s request that the Motion to Dismiss the Third Amended
Complaint, ECF No. 142, be decided without a hearing. ECF No. 146. The
Court vacated the October 8, 2019 hearing date and took the matter under
consideration without a hearing pursuant to Local Rule 7.2(d). Id. The
Court explicitly stated in its Minute Order that the “Motion to Dismiss seeks
dismissal as to all named Defendants” and therefore provided any party an
opportunity to object “to this Court’s deciding the Motion to Dismiss as a
non-hearing motion.” Id. No objections were filed.
2/

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a. The Public’s Interest in Expeditious Resolution of
Litigation
This matter was first filed on March 3, 2016 –
approximately three and a half years ago.

ECF No. 1-2 at 1.

While the matter initially involved active motion practice as
evidenced by the extensive procedural history, supra, it has
since become dormant.

Plaintiff was granted 30 days to file an

amended complaint from the Court’s April 23, 2018 Order.
No. 139.

ECF

After this Court’s April 23, 2018 Order, no party

filed anything on this docket until the present Motion to
Dismiss was filed by Defendant Sullivan more than thirteen
months later.

Plaintiff’s more than year-long silence

constitutes an unreasonable delay.

See In re Eisen, 31 F.3d

1447, 1451 (9th Cir. 1994) (stating dismissal under Rule 41(b)
requires a finding of unreasonable delay).
“[T]he public's interest in expeditious resolution of
litigation always favors dismissal.”

Yourish v. California

Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).

Because Plaintiff

has failed to move this case forward at all in the prior
thirteen months, this factor weighs strongly in favor of
dismissal.
b. The Court’s Need to Manage Its Docket
The Court provided Plaintiff 30 days to file an
amended complaint beginning on April 23, 2018.
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ECF No. 139.

Plaintiff has not done so to date.

The Court's need to manage

its docket favors dismissal because it is incumbent upon the
Court to manage its docket without being subject to routine
noncompliance with its ordered deadlines, especially where
Plaintiffs did not notify the Court of the reason for the delay
or request a continuance.

Pagtalunan v. Galaza, 291 F.3d 639,

642 (9th Cir. 2002) (“It is incumbent upon the Court to manage
its docket without being subject to routine noncompliance of
litigants . . .”).
c. The Risk of Prejudice to the Defendants
Where there has been an unreasonable delay, there is a
presumption of prejudice.
Cir. 1994).

In re Eisen, 31 F.3d 1447, 1452 (9th

“Unnecessary delay inherently increases the risk

that witnesses' memories will fade and evidence will become
stale.”

Pagtalunan, 291 F.3d at 643.

The presumption of

prejudice from an unreasonable delay is rebuttable.

In re

Eisen, 31 F.3d at 1452.
Not only has Plaintiff failed to rebut the presumption
of prejudice here, but he has conceded that he does not oppose
dismissal of the case.

ECF No. 144 at 2.

Therefore, this

factor weighs in favor of dismissal.
d. The Public Policy Favoring the Disposition of Cases
on Their Merits

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Because “[p]ublic policy favors disposition of cases
on the merits,” this factor weighs against dismissal.
Pagtalunan, 291 F.3d at 643 (quoting Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)).
e. The Availability of Less Drastic Alternatives
Plaintiff has been provided four opportunities to
amend his complaint.

See ECF No. 139 (providing leave to file a

fourth amended complaint).

Plaintiff has failed to do so.

Nor

did Plaintiff raise any objection to the Court’s consideration
of this matter without a hearing, despite the Court’s reminder
that “[t]he Motion to Dismiss seeks dismissal as to all named
Defendants.”

ECF No. 146;

see also ECF No. 134 (this Court’s

April 10, 2018 Order finding the Third Amended Complaint did not
satisfy the pleading standard under Federal Rule of Civil
Procedure 8, and warning that “[f]ailure to clearly set out how
each and every defendant is alleged to have violated the
plaintiff’s legal rights may lead to dismissal with
prejudice.”); Morris v. Morgan Stanley & Co., 942 F.2d 648, 652
(9th Cir. 1991) (“[A]n express warning regarding the possibility
of dismissal” may be a prerequisite “when dismissal is
undertaken by the court, sua sponte, . . . but there is
no warning requirement when dismissal follows a noticed motion
under Rule 41(b).”).

Defendant Sullivan’s Motion to Dismiss the

Third Amended Complaint sought dismissal of the entire Complaint
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as to all Defendants with prejudice.

Plaintiff has failed to

take any action in this case for more than a year, and has
submitted he has no objection to the dismissal of this case.
Further, a monetary sanction under Federal Rule of Civil
Procedure 11 would be less appropriate in this instance than
dismissal because Plaintiff has explicitly chosen not to oppose
this Motion to Dismiss.

ECF No. 144 at 2.

Upon consideration of less drastic alternatives, the
Court finds this factor weighs in favor of dismissal with
prejudice.

Four out of the five factors weigh in favor of
dismissing the case.
this case.

Plaintiff does not oppose dismissal in

Dismissal with prejudice is therefore warranted

pursuant to Federal Rule of Civil Procedure 41(b) and pursuant
to the inherent power of the Court.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant
Sullivan’s Motion to Dismiss as unopposed in its entirety, and
Plaintiff’s claims are DISMISSED with prejudice and without
leave to amend as against Defendant Sullivan under Federal Rule
of Civil Procedure 41(b).

The Court further acts sua sponte to

DISMISS Plaintiff’s claims for lack of prosecution with
prejudice and without leave to amend as against all Defendants.
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This case is hereby DISMISSED.

The clerk of the court is

directed to close the case.

IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, September 17, 2019.

________________________________
Alan C. Kay
Sr. United States District Judge

Bralich v. Sullivan, et al., Civ. No. 17-00547 ACK-WRP, Order
Granting Defendant Sullivan’s Motion to Dismiss the Third
Amended Complaint.

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