Phoenixx v. Mecklenburg ( 2021 )

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII JON-ERIC PHOENIXX, CIV. NO. 21-00302 LEK-RT Plaintiff, vs. DAVID MECKLENBURG, OWNER, BEACH BUMS BBQ BAR & GRILL, Defendant. ORDER DISMISSING CASE WITH PREJUDICE On July 9, 2021, pro se Plaintiff Jon-Eric Phoenixx (“Plaintiff”) filed his: Employment Discrimination Complaint (“Complaint”); and Application to Proceed in District Court Without Prepaying Fees or Costs (“Application”). [Dkt. nos. 1, 2.] On September 28, 2021, the magistrate judge issued findings and recommendations to dismiss the Complaint with leave to amend and to deny the Application as moot, in light of the dismissal of the Complaint (“F&R”). [Dkt. no. 6.] This Court issued an order adopting the F&R on October 19, 2021. [Dkt. no. 8.] The denial of the Application was without prejudice to the filing of a new, more complete, application to proceed in district court without prepaying fees or costs. On October 21, 2021, the magistrate judge issued an entering order directing Plaintiff to file his amended complaint by November 9, 2021. [Dkt. no. 9.] The magistrate judge also instructed Plaintiff to either pay the filing fee or file a new application to proceed in district court without prepaying fees or costs by November 9, 2021. As of the date of this Order, Plaintiff has neither filed an amended complaint nor requested an extension of the filing deadline issued by the magistrate judge. Because Plaintiff has not identified any circumstance which constitutes good cause warranting an extension of the November 9, 2021 deadline, this Court has the discretion to dismiss the Complaint with prejudice. See Yourish v. Cal. Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) (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 Fed. R. Civ. P. 41(b)).1 After weighing the five dismissal factors set forth in Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011),2 this Court finds that 1 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.” 2 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 (. . . continued) 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 Plaintiff’s claims on the merits. Moreover, Defendant David Mecklenburg will not be prejudiced by the dismissal with prejudice because it appears that Plaintiff has not completed service upon him. Further, there are no less drastic alternatives available at this time. The claims in Plaintiff’s Complaint, which this Court previously dismissed without prejudice, is HEREBY DISMISSED WITH PREJUDICE. This Court DIRECTS the Clerk’s Office to enter final judgment and close the case on December 17, 2021, 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. IT IS SO ORDERED. 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). DATED AT HONOLULU, HAWAII, December 2, 2021. & a S os, > “ : 4 /s/ Leslie E. Kobayashi Leslie E. Kobayashi United States District Judge %, nN ey Prey or we? JON-ERIC PHOENIXX VS. DAVID MECKLENBURG, ETC.; CV 21-00302 LEK- RT; ORDER DISMISSING CASE WITH PREJUDICE