Lane v. United States of America

Filing 22

ORDER Regarding Failure To Comply With Court Order Issued on November 26, 2018 re 20 ."The claims in Plaintiff's Complaint against the Department and Plaintiff's claims against Tom are HEREBY DISMISSED WITHOUT PREJUDICE. This Court DIRECTS the Clerk's Office to terminate the Department and Tom as parties in this action on February 28, 2019, unless Plaintiff files a timely motion for reconsideration of this Order as provided for in the Local Rules of Practice for the United States District Court for the District of Hawaii." Signed by JUDGE LESLIE E. KOBAYASHI on 2/6/2019. (cib)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JONAH LANE,

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA, ET )
AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL 18-00060 LEK-RLP

ORDER REGARDING FAILURE TO COMPLY WITH
COURT ORDER ISSUED ON NOVEMBER 26, 2018
On November 26, 2018, this Court issued its Order
Regarding Plaintiff’s Response to Order to Show Cause (“11/26/18
Order”).

[Dkt. no. 20.]

Plaintiff Jonah Lane (“Plaintiff”) and

Defendant the United States of America (“United States”) have
each failed to comply with that order.
I.

United States’s Failure to Comply
In the 11/26/18 Order, this Court concluded that

Plaintiff complied with the requirements to effectuate service on
United States.1

This Court therefore ordered the United States

to respond to Plaintiff’s Complaint, [filed 2/14/18 (dkt.
no. 1),] within the time period required under the applicable
legal authorities.

[11/26/18 Order at 2-3.]

The Clerk’s Office

was directed to serve a copy of the 11/26/18 Order on
1

The 11/26/18 Order does not preclude the United States
from challenging the sufficiency of service, if appropriate under
the circumstances of this case. See 11/26/18 Order at 2 n.1.

Kenji Price, United States Attorney for the District of Hawai`i.
[Id. at 4.]

In spite of the 11/26/18 Order, the United States

has not entered an appearance in this case.
Upon review of the docket, it appears that the Clerk’s
Office did not serve the 11/26/18 Order on United States Attorney
Price.

Therefore, the United States’s failure to comply with the

11/26/18 Order will not be held against it.

This Court DIRECTS

the Clerk’s Office to serve a copy of the instant Order, and a
copy of the 11/26/18 Order, on United States Attorney Price.

The

United States is ORDERED to respond to the Complaint by
February 28, 2019.
II.

Plaintiff’s Failure to Comply
In the 11/26/18 Order, this Court also concluded that

Plaintiff had not complied with the requirements to effectuate
service on Defendant United States Department of Agriculture
(“Department”), nor had Plaintiff complied as to Defendant
Charles Tom (“Tom”).

This Court ordered Plaintiff to file proof

of service as to the Department and as to Tom by December 26,
2018.

This Court stated that, if Plaintiff was unable to file

proof of service by that date, he had to file a motion seeking an
extension of the deadline.

[Id. at 3-4.]

This Court

specifically cautioned Plaintiff that: “If Plaintiff fails to
file proof of service as to either the Department or [Tom] by
December 26, 2018, the Complaint may be dismissed as to that
2

defendant.”

[Id. at 3 & n.2 (emphasis omitted) (citing Yourish

v. Cal. Amplifier, 191 F.3d 983, 988 (9th Cir. 1999); Fed. R.
Civ. P. 41(b)).]
Plaintiff has not filed any document in this case since
this Court issued the 11/26/18 Order.

Unlike the United States,

Plaintiff’s counsel was served with notice of the 11/26/18 Order.
In addition, the United States’s failure to comply with the
11/26/18 Order does not excuse Plaintiff’s failure to complete
service on the Department and Tom.
Plaintiff had a reasonable amount of time to cure his
failure to complete service on the Department and Tom.

See Fed.

R. Civ. P. 4(i)(4) (describing the circumstances under which
“[t]he court must allow a party a reasonable time to cure its
failure to” complete service on a United States agency, an
officer, or a employee).

Because of Plaintiff’s failure to

complete service on the Department and Tom within a reasonable
time, and because Plaintiff has not complied with the 11/26/18
Order, this Court has the discretion to dismiss Plaintiff’s
claims against them, without prejudice.

Cf. Yourish, 191 F.3d at

988 (holding that the plaintiff’s failure to comply with a minute
order setting forth the deadline to file the amended complaint
gave the district court the discretion to dismiss the case under

3

Rule 41(b)).2

After weighing the five dismissal factors set

forth in Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir.
2011),3 this Court finds that the public interest in the
expeditious resolution of this litigation and this Court’s
interest in managing the docket strongly outweigh the policy
favoring disposition of cases on the merits.

Moreover, the

Department and Tom will not be prejudiced by dismissal because
Plaintiff did not complete service on them, and there are no less
drastic alternatives available at this time.
The claims in Plaintiff’s Complaint against the
Department and Plaintiff’s claims against Tom are HEREBY
DISMISSED WITHOUT PREJUDICE.

This Court DIRECTS the Clerk’s

Office to terminate the Department and Tom as parties in this
action on February 28, 2019, unless Plaintiff files a timely
motion for reconsideration of this Order as provided for in the

2

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.”
3

The Ninth Circuit has
identified five factors that a district 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, 648 F.3d at 788 (citations and quotation marks omitted).
4

Local Rules of Practice for the United States District Court for
the District of Hawaii.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 6, 2019.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JONAH LANE VS. UNITED STATES OF AMERICA; CV 18-00060 LEK-RLP;
ORDER REGARDING FAILURE TO COMPLY WITH COURT ORDER ISSUED
NOVEMBER 26, 2018

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