Chun v. Nakashima

Filing 23

ORDER DISMISSING CASE. The action is dismissed without prejudice. Signed by JUDGE DERRICK K. WATSON on 8/20/2018. (afc)

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

CURTIS P. CHUN,

CV. NO. 18-00177 DKW-KSC

Plaintiff,

ORDER DISMISSING CASE

v.
HAWAII STATE FAMILY COURT
RULES UNDER THE HONORABLE
JUDGE STEVEN M. NAKASHIMA,
Defendant.

INTRODUCTION
In a June 13, 2018 Order, the Court granted Chun’s Application to proceed in
forma pauperis and dismissed his First Amended Complaint with limited leave to
amend. Dkt. No. 12 (6/13/18 Order). On July 12 and again on July 26, 2018, the
Court granted Chun’s requests for extensions of time, Dkt. Nos. 16 and 20, and twice
extended the deadline for filing his Second Amended Complaint, ultimately until
August 13, 2018, cautioning him that “no further extensions will be granted absent
good cause shown” and that the failure the file an amended complaint by the
deadline may “result in the dismissal of this action without prejudice.” Dkt. Nos.
17 and 21. Despite the extensions of time, Chun has yet to file an amended

complaint or respond to the Court’s June 13, 2018 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.
The Court’s 6/13/18 Order was clear:
[B]ecause Chun fails to state a plausible claim for relief, the FAC
is DISMISSED. Because amendment of certain claims may be
possible, Chun is granted limited leave to attempt to cure the
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deficiencies noted in this Order, with instructions below.
****
Portions of the FAC are dismissed without prejudice, and Chun
is granted leave to amend to attempt to cure the deficiencies
identified above. Chun’s claims against Judge Nakashima are
dismissed with prejudice. The Court cautions Chun that he may
not re-allege those claims in any amended complaint.
****
The amended complaint must designate that it is the “Second
Amended Complaint” and may not incorporate any part of the
prior complaint. Rather, any specific allegations must be
retyped or rewritten in their entirety. Chun may include only
one claim per count. Failure to file an amended complaint by
July 16, 2018 will result in the automatic dismissal of this action
without prejudice.
Based upon the foregoing, Chun’s IFP Application is
GRANTED (Dkt. No. 7), and the FAC is DISMISSED with
limited leave to amend (Dkt. No. 9).
Chun is granted leave to file an amended complaint in
accordance with the terms of this Order by July 16, 2018. To
be clear, claims dismissed with prejudice may not be re-alleged
in an amended complaint. The Court CAUTIONS Chun that
failure to file an amended complaint by July 16, 2018 may result
in the automatic dismissal of this action without prejudice.
6/13/18 Order at 12–14.
On July 12, 2018, the Court granted Chun’s request and extended the deadline
for filing his Second Amended Complaint to July 30, 2018. “The Court caution[ed]
Chun that failure to file an amended complaint by 7/30/18 may result in the

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automatic dismissal of this action without prejudice.” 7/12/18 Entering Order, Dkt.
No. 17. The Court granted Chun a further extension on July 26, 2018, and advised
that “[n]o further extensions will be granted absent good cause shown. The Court
caution[ed] Chun that failure to file an amended complaint by 8/13/18 may result in
the automatic dismissal of this action without prejudice.” 7/26/18 Entering Order,
Dkt. No. 21. Chun’s failure to comply with the 6/13/18 Order, and the 7/12/18 and
7/26/18 Entering Orders 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). Chun offers no excuse or explanation for his failure to file a Second
Amended Complaint, despite the two extensions of time granted by the Court.
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
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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).
Chun failed to discharge his responsibility to prosecute this action despite the
Court’s express warnings about dismissal in its prior orders. See 6/13/18 Order at
12–14. Under these circumstances, the public policy favoring the resolution of
disputes on the merits does not outweigh Chun’s failure to file an amended
complaint, as directed by the Court in its 6/13/18 Order, and the 7/12/18 and 7/26/18
Entering Orders.
The Court attempted to avoid outright dismissal of this action by twice
granting Chun 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 Chun’s
voluntary failure to comply with the Court’s Orders. 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: August 20, 2018 at Honolulu, Hawai‘i.

Chun v. Nakashima; Civil No. 18-00177 DKW-KSC; ORDER DISMISSING CASE

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