Salcido v. Nguyen

Filing 5

ORDER DISMISSING CASE re #1 - Signed by CHIEF JUDGE DERRICK K. WATSON on 2/7/2024. In sum, as four out of five factors favor dismissal, this case is DISMISSED WITHOUT PREJUDICE for failure to remit the filing fee pursuant to the Court's January 11, 2024 Order. See Ferdik, 963 F.2d at 1263 (finding dismissal warranted where three out of five factors weighed in favor of dismissal); Malone v. U.S. Postal Serv., 833 F.2d 128, 133 n.2 (9th Cir. 1987) (finding that where the other four factors favor dismissal, they are not outweighed by public policy favoring the resolution of cases on their merits); see also Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984) ("dismissal without prejudice is a more easily justified sanction for failure to prosecute."). The Clerk of Court is directed to CLOSE this case. (eta)COURT'S CERTIFICATE OF SERVICE - Andrew Salcido has been served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on February 7, 2024.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
ANDREW SALCIDO,
Plaintiff,

Case No. 24-cv-00013-DKW-RT
ORDER DISMISSING CASE

vs.
NGUYEN NGUYEN,
Defendants.
On January 9, 2024, Plaintiff Andrew Salcido, proceeding pro se, brought a
Complaint against Defendant Nguyen Nguyen for malicious prosecution,
defamation, and abuse of process. Dkt. No. 1. Salcido also filed an application to
proceed in forma pauperis (“IFP Application”). Dkt. No. 2.
On January 11, 2024, the Court issued an Order determining that Salcido
had the financial means to pay the $405 filing fee and denying Salcido’s IFP
Application on those grounds. Dkt. No. 4. Therein, Salcido was cautioned that
failing to pay the $405 filing fee by January 31, 2024 would result in the automatic
dismissal of his case without prejudice or further notice. Id. at 3. Because this
deadline has now passed without the Court having received the required filing fee,
this case is dismissed without prejudice, as more fully explained below.
Federal courts have the authority to dismiss cases for failure to prosecute or
failure to comply with court orders. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th

Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.3d 1258, 1260–61 (9th Cir. 1992)). In
doing so, the Court must weigh 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 defendants/respondents; (4) the availability of less drastic
alternatives; and (5) the public policy favoring disposition of cases on their
merits.” Id. Here, after careful consideration of each factor, the Court finds that
this case should be dismissed without prejudice.
First, by failing to pay the requisite filing fee pursuant to the January 11,
2024 Order, Salcido has delayed resolution of this case on the merits and hindered
the public’s interest in the expeditious resolution of litigation. This factor therefore
favors dismissal. 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.”).
Second, Salcido’s failure to remit the filing fee also hinders the Court’s
ability to manage its docket. Simply put, unless and until he does so, this action
cannot proceed, thereby limiting the Court’s ability to manage its docket.
Accordingly, this factor also favors dismissal.
Third, Salcido’s failure to pay the filing fee in a timely manner risks
prejudice to Defendant Nguyen. The Ninth Circuit has explained that the risk of
prejudice is related to the plaintiff’s reason for failing to prosecute an action.
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Pagtalunan, 291 F.3d at 642 (citing Yourish, 292 F.3d at 991). Here, Salcido has
neither sought an extension to pay the filing fee, nor provided any excuse or
rationale for his failure to do so. Given his unreasonable delay, this factor,
therefore, weighs in favor of dismissal. See id. at 643.
Fourth, the Court has already provided Salcido with less drastic alternatives
to no avail. Specifically, the Court’s January 11, 2024 Order explicitly informed
Salcido that he was required to pay the $405 filing fee, and warned him that failure
to do so by the January 31, 2024 deadline would result in the automatic dismissal
of his case. Dkt. No. 4. Nevertheless, Salcido failed to comply. As this action
cannot proceed without payment of the filing fee, this factor favors dismissal. See
Ferdik, 963 F.2d at 1262 (explaining “a district court’s warning to a party that his
failure to obey the court’s order will result in dismissal can satisfy the
‘consideration of alternatives’ requirement.” (citations omitted)).
Finally, as public policy favors disposing of cases on their merits, this factor
weighs against dismissal. Pagtalunan, 291 F.3d at 643.
In sum, as four out of five factors favor dismissal, this case is DISMISSED
WITHOUT PREJUDICE for failure to remit the filing fee pursuant to the Court’s
January 11, 2024 Order. See Ferdik, 963 F.2d at 1263 (finding dismissal
warranted where three out of five factors weighed in favor of dismissal); Malone v.
U.S. Postal Serv., 833 F.2d 128, 133 n.2 (9th Cir. 1987) (finding that where the
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other four factors favor dismissal, they are not outweighed by public policy
favoring the resolution of cases on their merits); see also Ash v. Cvetkov, 739 F.2d
493, 497 (9th Cir. 1984) (“dismissal without prejudice is a more easily justified
sanction for failure to prosecute.”).
The Clerk of Court is directed to CLOSE this case.
IT IS SO ORDERED.
DATED: February 7, 2024 at Honolulu, Hawai‘i.

___________________________
Derrick K. Watson
Chief United States District Judge

Andrew Salcido v. Nguyen Nguyen; Civil No. 24-00013 DKW-RT; ORDER
DISMISSING CASE

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