Stone v. City of Philadelphia et al

Filing 33

ORDER DISMISSING ACTION WITHOUT PREJUDICE re 15 - Signed by JUDGE HELEN GILLMOR on 9/24/2018. Plaintiff does not have a complaint before the Court, has failed to prosecute her claims, and has failed to comply with the Court Rules and Court Orders. The case is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is ordered to CLOSE THE CASE. (emt, )COURT'S CERTIFICATE of Service - Nanette Stone shall be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on September 25, 2018.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NANETTE STONE,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF PHILADELPHIA, Judge
)
Nina Wright Padilla, Judge
)
Margaret Murphy; CITY OF
)
PHILADELPHIA PROBATE COURT,
)
Ronald Donatucci, Register of )
Wills, Staff and Associates; )
CITY OF PHILADELPHIA CITY
)
COUNCIL, City Council
)
President, Darryl Clark and
)
Council Members; CITY OF
)
PHILADELPHIA DEPARTMENT OF
)
HUMAN SERVICES, Commissioner )
of DHS; CITY OF PHILADELPHIA )
POLICE DEPARTMENT, Police
)
Commissioner Ross; CITY OF
)
PHILADELPHIA FIRE DEPARTMENT )
AND EMS SERVICES, Fire
)
Departments and
)
Commissioners; CITY OF
)
PHILADELPHIA LAW DEPARTMENT, )
Law Dept. Leadership Vernette )
Dow; Philadelphia Housing
)
Authority; Philadelphia
)
Housing,
)
)
Defendants.
)
)

CIVIL NO. 18-00089 HG-KSC

ORDER DISMISSING ACTION WITHOUT PREJUDICE
The case before the Court arises out of alleged harassment
and discrimination that Plaintiff claims occurred in
Philadelphia, Pennsylvania, by the City of Philadelphia, a number
of Philadelphia city agencies, and Philadelphia city government
officials.

1

Pursuant to Federal Rule of Civil Procedure 41(b), the Court
dismisses Plaintiff’s case for failure to prosecute, failure to
comply with the Federal Rules of Civil Procedure, failure to
comply with the Local Rules for the District of Hawaii, and
failure to comply with the Court’s Orders.
Plaintiff’s lawsuit is DISMISSED WITHOUT PREJUDICE.

PROCEDURAL HISTORY
On March 12, 2018, Plaintiff filed a Complaint.

(ECF No.

1).
Also on March 12, 2018, Plaintiff filed an Application to
Proceed in Forma Pauperis, a Request for Appointment of Counsel,
and a Motion to Seal.

(ECF Nos. 3, 4, 6).

On March 16, 2018, the Magistrate Judge issued a Findings
and Recommendation to Dismiss the Complaint and Deny the
Application to Proceed In Forma Pauperis and an Order Denying
Plaintiff’s Request for Appointment of Counsel.

(ECF No. 8).

The Magistrate Judge also issued an Order Denying the Motion to
Request Seal of Record.

(ECF No. 7).

Also on March 16, 2018, Plaintiff filed an Addendum to her
Complaint.

(ECF No. 10).

On April 13, 2018, the District Court issued an Order
Adopting Magistrate Judge’s Findings and Recommendation to
Dismiss the Complaint and Deny the Application to Proceed In
Forma Pauperis as Modified.

(ECF No. 14).

On April 18, 2018, Plaintiff filed two pleadings.
2

The first

was entitled, (Amend) EMPLOYMENT DISCRIMINATION COMPLAINT.
No. 15).

The second was entitled, COMPLAINT FOR DAMAGES.

(ECF
(ECF

No. 15-3).
Also on April 18, 2018, Plaintiff filed a second Application
to Proceed in Forma Pauperis, a Request for Appointment of
Counsel, and a Motion to Seal.

(ECF Nos. 16, 17, 18).

On April 23, 2018, the Magistrate Judge issued an Order
Denying Motion to Seal, an Order Denying Plaintiff’s Second
Request for Appointment of Counsel, and an Order Granting
Plaintiff’s Application to Proceed In Forma Pauperis.

(ECF Nos.

19, 20, 21).
On April 24, 2018, the Magistrate Judge ordered Plaintiff to
clarify which document was her operative pleading.

(ECF No. 22).

On May 8, 2018, Plaintiff requested an extension of time.
(ECF No. 23).
On May 10, 2018, the Magistrate Judge granted Plaintiff’s
request for an extension of time.

(ECF No. 24).

On May 18, 2018, Plaintiff submitted a letter stating that
all the information previously submitted constitutes her
operative complaint.

(ECF No. 25).

On May 24, 2018, the Magistrate Judge issued an Order
striking both of Plaintiff’s April 18, 2018 pleadings.
27).

(ECF No.

The Plaintiff was given leave to file an amended complaint

by no later than June 22, 2018.

Plaintiff has not filed an

amended complaint.
On June 20, 2018, Plaintiff sent an email to the Court
3

stating that her mailing address had changed from an address in
Honolulu to an address in Philadelphia.

(ECF No. 30).

On July 6, 2018, Plaintiff failed to appear to a scheduling
conference.

(ECF No. 32).

Although Plaintiff did not request to

appear by telephone, the Magistrate Judge attempted to reach
Plaintiff at the telephone number on record without success.
STANDARD OF REVIEW
District courts have the inherent power to control their
dockets.

In the exercise of their power, courts may impose

sanctions, including, where appropriate, dismissal of a case for
failure to prosecute.

Thompson v. Housing Authority of City of

Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) (per curiam).
Rule 41(b) of the Federal Rules of Civil Procedure provides for
dismissal of an action for failure to prosecute.

Rule 41(b)

provides:
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. Unless the
dismissal order states otherwise, a dismissal under
this subdivision (b) and any dismissal not under this
rule—except one for lack of jurisdiction, improper
venue, or failure to join a party under Rule
19—operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b) grants district courts discretion to
dismiss an action for failure to comply with federal or local
rules of civil procedure, failure to prosecute, or failure to
comply with the court's orders.

Hells Canyon Pres. Council v.

U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).

4

A federal

trial court may dismiss an action with prejudice because of the
plaintiff’s failure to prosecute.

See Link v. Wabash Railroad

Co., 370 U.S. 626, 629-33 (1962).
The Local Rules of Practice for the United States District
Court for the District of Hawaii also authorize dismissal when a
party fails to comply with the rules.

District of Hawaii Local

Rule 11.1 (“Failure of counsel or of a party to comply with any
provision of these rules is a ground for imposition of sanctions,
including a fine, dismissal, or other appropriate sanction.”).
ANALYSIS
A case may be dismissed involuntarily for failure to comply
with the Federal Rules of Civil Procedure, failure to comply with
the local rules of civil procedure, or failure to comply with a
court order pursuant to Federal Rule of Civil Procedure 41(b).
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ghazali
v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam).
To determine if dismissal is warranted, the District Court
must consider:
(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 defendant;

(4)

the availability of less drastic alternatives;
and,

(5)

the public policy favoring disposition of cases on
their merits.

5

In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460
F.3d 1217, 1226 (9th Cir. 2006).
Although less drastic alternatives may be considered before
dismissing an action under Rule 41(b), a district court need not
exhaust all alternatives before dismissing a case.

See Von

Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047,
1053-54 (9th Cir. 1971).

Dismissal for failure to prosecute is

committed to the sound discretion of the trial court.

See Morris

v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991).
After applying the five factors to the circumstances of the
case, the Court finds dismissal to be appropriate.

Plaintiffs

are charged with the exercise of “reasonable diligence” in
prosecuting the action.

Anderson v. Air West, Inc., 542 F.2d

522, 524 (9th Cir. 1976); States Steamship Co. v. Philippine Air
Lines, 426 F.2d 803, 805 (9th Cir. 1970).
Plaintiff Stone filed her initial Complaint and in forma
pauperis application on March 12, 2018.

(ECF Nos. 1, 3).

On

March 16, 2018, the Magistrate Judge, pursuant to the mandatory
screening of all civil actions brought in forma pauperis,
recommended dismissal of the Complaint with leave to amend. (ECF
No. 8).

The Magistrate Judge found that Plaintiff’s Complaint

contained only conclusory allegations which failed to articulate
the elements for any causes of action, a lack of legal or factual
basis to support a viable claim, and no possible basis for venue
in this district.

(Id. at pp. 4-5).

On April 13, 2018, the

Court adopted the Findings and Recommendations of the Magistrate
6

Judge.

(ECF No. 14). Plaintiff was given leave to amend her

Complaint by May 16, 2018.

(Id.)

On April 18, 2018, Plaintiff filed two pleadings entitled
(Amend) EMPLOYMENT DISCRIMINATION COMPLAINT and COMPLAINT FOR
DAMAGES.

(ECF Nos. 15, 15-3).

On April 24, 2018, the Magistrate

Judge ordered Plaintiff to clarify which of her two Complaints
served as the operative pleading by May 8. 2018.

(ECF No. 22).

Plaintiff requested, and was granted, an extension of time to
consult with an attorney.

(ECF Nos. 23, 24).

Plaintiff’s

deadline to clarify was extended to May 18, 2018.
On May 18, 2018, Plaintiff submitted a letter requesting
that “the information presented to the court in Stone v. City of
Philadelphia in the entirety submitted please move forward as the
petition of record.”

(ECF No. 25).

On May 24, 2018, the Magistrate Judge issued an Order
striking both of Plaintiff’s pleadings for failing to comply with
the Court’s Orders, the Federal Rules of Civil Procedure, and the
Local Rules of the District of Hawaii.

(ECF No. 27).

The

Plaintiff was given leave to file an amended complaint by no
later than June 22, 2018.

As of September 24, 2018, Plaintiff

still has not filed an amended complaint.
Plaintiff’s last contact with the Court was on June 20,
2018, when she emailed the Court to change her mailing address to
one in Philadelphia.

(ECF No. 30).

On July 6, 2018, Plaintiff failed to appear to a scheduling
conference.

(ECF No. 32).

Though Plaintiff did not request to
7

appear by telephone, the Magistrate Judge attempted to call
Plaintiff without success.
1.

The Public's Interest In Expeditious Resolution Of
Litigation

The Court has attempted to assist Plaintiff throughout the
proceedings.

Plaintiff’s initial Complaint contained no factual

or legal basis to support a viable claim in the District of
Hawaii.

(ECF No. 1).

After being granted leave to amend her

initial Complaint, Plaintiff simultaneously filed two separate
Amended Complaints.

Neither Amended Complaint cured the

deficiencies identified in her initial Complaint.
Plaintiff asked the Court to synthesize the two documents
into a single complaint.

(ECF Nos. 15, 15-3, 25).

It is not the

role of the Court to combine Plaintiff’s pleadings.
Plaintiff was given leave to file another complaint.
Plaintiff has not filed an amended complaint or communicated with
the Court since June 2018.
When considering the first factor, the Expeditious
Resolution of Litigation, the Ninth Circuit Court of Appeals and
Courts in this District have found that failing to pursue a case
for several months weighs in favor of dismissal. Pagtalunan, 291
F.3d at 642; L.M. v. Dep't of Educ. Hawaii, No. CV 05-00345 ACKKSC, 2006 WL 8436266, at *2 (D. Haw. Mar. 6, 2006); Chapman v.
Krutonog, No. CIV. 08-00579 HG-KSC, 2013 WL 4835175, at *3 (D.
Haw. Sept. 9, 2013).
8

Plaintiff has failed to pursue the case for over three
months, has failed to comply with multiple Court orders, and has
failed to communicate with the Court.

There has not been an

operative pleading in this lawsuit since May 24, 2018.
The public's interest in expeditious resolution of
litigation weighs in favor of dismissal.
2.

The Court’s Need To Manage Its Docket

The Ninth Circuit Court of Appeals has highlighted the
importance of preserving the district courts' power to manage
their dockets when faced with noncompliant litigants.

Ferdik v.

Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
Plaintiff failed to submit an operative complaint and failed
to appear at the July 7, 2018 Scheduling Conference.
This factor weighs in favor of dismissal.
3.

The Risk of Prejudice to the Defendant

In determining whether a defendant has been prejudiced, the
Court examines whether the plaintiff's actions impair the
defendant's ability to go to trial or threaten to interfere with
the rightful decision of the case.

Malone v. U.S. Postal Serv.,

833 F.2d 128, 131 (9th Cir. 1987).
No Defendant has been served in this case, and there is no
operative complaint.

There is no prejudice to any of the

Defendants named in the pleadings.
This factor also weighs in favor of dismissal.
9

4.

The Availability of Less Drastic Alternatives

“The district court abuses its discretion if it imposes a
sanction of dismissal without first considering the impact of the
sanction and the adequacy of less drastic sanctions.”

In re PPA,

460 F.3d at 1228 n.5 (quoting Malone, 833 F.2d at 32 n.1).

Less

drastic sanctions include:
a warning, a formal reprimand, placing the case at the
bottom of the calendar, a fine, the imposition of costs
or attorney fees, the temporary suspension of the
culpable counsel from practice before the court, ...
dismissal of the suit unless new counsel is secured ...
preclusion of claims or defenses, or the imposition of
fees and costs upon plaintiff's counsel....
Id.

If a plaintiff violates a court order, issuing a warning and

providing the plaintiff with another chance to comply with the
court's order may be considered a less drastic sanction.

Id.

The Court has attempted less drastic alternatives.
Plaintiff has failed to heed the Court’s orders, failed to comply
with the Federal Rules of Civil Procedure, failed to comply with
the Local Rules of the District of Hawaii, and failed to attend
the Scheduling Conference.
The fourth factor weighs in favor of dismissal in light of
Plaintiff’s dilatory conduct.
5.

The Public Policy Favoring the Disposition of Cases on
Their Merits

Public policy favors disposition of cases on the merits and
this factor will nearly always weigh against dismissal.

10

Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998).
The fifth factor, however, must be balanced against the weight of
the other four factors in determining if dismissal is appropriate
pursuant to Fed. R. Civ. P. 41(b).

Namohala v. Maeda, Civ. No.

11-cv-00786 JMS-KSC, 2014 WL 584256, *5 (D. Haw. Feb. 11, 2014).
Here, there is no jurisdictional basis for the case to
proceed in the District of Hawaii.

As set out in the Court’s

previous orders, Plaintiff has not established that the District
of Hawaii has personal jurisdiction over Defendants who are all
citizens of Pennsylvania regarding events that took place
entirely in Philadelphia.
Plaintiff has been provided with opportunities to cure her
pleadings to establish that the District of Hawaii has
jurisdiction over the case, and she has failed to do so.
All five factors weigh in favor of dismissing the case.
Plaintiff has failed to submit one understandable document to
serve as a complaint.

Plaintiff has failed to comply with

multiple Court orders and has failed take any action in this case
over the past three months.
Conference.

She did not attend the Scheduling

She has not communicated with the Court in over two

months.
Dismissal is warranted pursuant to Federal Rule of Civil
Procedure 41(b).

11

CONCLUSION
Plaintiff does not have a complaint before the Court, has
failed to prosecute her claims, and has failed to comply with the
Court Rules and Court Orders.
The case is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court is ordered to CLOSE THE CASE.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAII, September 24, 2018.

STONE V. CITY OF PHILADELPHIA, Judge Nina Wright Padilla, Judge
Margaret Murphy; CITY OF PHILADELPHIA PROBATE COURT, Ronald
Donatucci, Register of Wills, Staff and Associates; CITY OF
PHILADELPHIA CITY COUNCIL, City Council President, Darryl Clark
and Council Members; CITY OF PHILADELPHIA DEPARTMENT OF HUMAN
SERVICES, Commissioner of DHS; CITY OF PHILADELPHIA POLICE
DEPARTMENT, Police Commissioner Ross; CITY OF
PHILADELPHIA FIRE DEPARTMENT AND EMS SERVICES, Fire Departments
and Commissioners; CITY OF PHILADELPHIA LAW DEPARTMENT, Law Dept.
Leadership Vernette Dow; Philadelphia Housing Authority;
Philadelphia Housing, CIVIL NO. 18-00089 HG-KSC; ORDER DISMISSING
ACTION WITHOUT PREJUDICE
12