Seruge v. Hawaiian Properties, Ltd. et al

Filing 10

ORDER DISMISSING CASE re 1 - Signed by JUDGE DERRICK K. WATSON on 3/1/2018. "On the basis of the foregoing, the Court DISMISSES this action without prejudice and directs the Clerk of Court to close this case." (emt, )< FONT SIZE=1>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). Jalil Seruge served by first class mail to the address of record on March 1, 2018.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

CV. NO. 18-00024 DKW-KSC

JALIL SERUGE,
Plaintiff,

ORDER DISMISSING CASE

v.
HAWAIIAN PROPERTIES, LTD., et
al.,
Defendants.

INTRODUCTION
On January 17, 2018, Plaintiff Jalil Seruge, proceeding pro se, filed a
Complaint alleging age and national origin discrimination by Hawaiian Properties,
Ltd., Hawaii Civic Service, Inc., and Thomas Dulan. Dkt. No. 1. Seruge also filed
an incomplete application to proceed in forma pauperis (“IFP Application”) and a
Motion for Appointment of Pro Bono Counsel. Dkt. Nos. 4 and 5. In a January
22, 2018 Order, the Court dismissed the Complaint with leave to amend, and denied
without prejudice the incomplete IFP Application and Motion for Appointment of
Pro Bono Counsel, pending the filing of an amended complaint. Dkt. No. 8
(1/22/18 Order). The 1/22/18 Order granted Seruge until February 23, 2018 to file
an amended complaint, and to either file a fully executed IFP Application or pay the

requisite filing fee. Seruge has yet to file an amended complaint or IFP
Application, or pay the requisite filing fee, or respond to the Court’s 1/22/18 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.”). 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
consideration of these factors, the Court concludes that dismissal without prejudice
is warranted under the circumstances.

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The Court’s 1/22/18 Order was clear:
Because Seruge fails to state a cognizable claim for relief or
establish this Court’s subject matter jurisdiction, the Complaint
is DISMISSED with leave to amend pursuant to 28 U.S.C.
§ 1915(e), with instructions below. The incomplete IFP
Application and Motion for Appointment of Pro Bono Counsel
are denied without prejudice, pending the filing of an amended
complaint.
****
The Complaint is dismissed without prejudice and Seruge is
granted leave to amend to attempt to cure the deficiencies
identified above. If Seruge chooses to file an amended
complaint, he must write short, plain statements telling the
Court: (1) the specific basis of this Court’s jurisdiction; (2) the
constitutional or statutory right Plaintiff believes was violated;
(3) the name of the defendant who violated that right; (4) exactly
what that defendant did or failed to do; (5) how the action or
inaction of that defendant is connected to the violation of
Plaintiff’s rights; and (6) what specific injury Plaintiff suffered
because of that defendant’s conduct. Plaintiff must repeat this
process for each person or entity that he names as a defendant.
If Seruge fails to affirmatively link the conduct of each named
defendant with the specific injury he suffered, the allegation
against that defendant will be dismissed for failure to state a
claim.
An amended complaint generally supersedes a prior complaint,
and must be complete in itself without reference to the prior
superseded pleading. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987), overruled in part by Lacey v. Maricopa Cty., 693 F.3d
896 (9th Cir. 2012) (en banc). Claims dismissed without
prejudice that are not re-alleged in an amended complaint may
be deemed voluntarily dismissed. See Lacey, 693 F.3d at 928
(stating that claims dismissed with prejudice need not be
realleged in an amended complaint to preserve them for appeal,
but claims that are voluntarily dismissed are considered waived
if they are not re-pled).
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The amended complaint must designate that it is the “First
Amended Complaint” and may not incorporate any part of the
prior complaint. Rather, any specific allegations must be
retyped or rewritten in their entirety. Seruge may include only
one claim per count. Failure to file an amended complaint by
February 23, 2018 will result in the automatic dismissal of this
action without prejudice.
****
Based upon the foregoing, Seruge’s Complaint is DISMISSED
with leave to amend. Seruge is granted leave to file an amended
complaint in accordance with the terms of this Order by
February 23, 2018. The Court CAUTIONS Seruge that failure
to file an amended complaint by February 23, 2018 may result
in the automatic dismissal of this action without prejudice.
Seruge’s IFP Application (Dkt. No. 4) and Motion for
Appointment of Pro Bono Counsel (Dkt. No. 5) are DENIED
without prejudice. If he elects to file an amended complaint,
Seruge shall file a fully executed IFP Application or pay the
requisite filing fee by February 23, 2018.
1/22/18 Order at 1–2, 16–17.
Seruge’s failure to comply with the 1/22/18 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

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at 991). Seruge 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).
Seruge failed to discharge his responsibility to prosecute this action despite the
Court’s express warnings about dismissal in its prior order. See 1/22/18 Order at
16–17. Under these circumstances, the public policy favoring the resolution of
disputes on the merits does not outweigh Seruge’s failure to file an amended
complaint, as directed by the Court in its 1/22/18 Order.
The Court attempted to avoid outright dismissal of this action by granting
Seruge 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 Seruge’s voluntary failure to

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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: March 1, 2018 at Honolulu, Hawai‘i.

Seruge v. Hawaiian Properties, Ltd. et al. CV 18-00024 DKW-KSC; ORDER DISMISSING
CASE
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