Scanlan v. State Actors and Officials

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DANA SCANLAN,
Plaintiff,
vs.
STATE ACTORS AND OFFICIALS,
IN THEIR OFFICIAL CAPACITIES;
ET AL.
Defendants.
CIV. NO. 26-00069 LEK-RT
FINDINGS AND
RECOMMENDATION TO
DISMISS THIS ACTION
FINDINGS AND RECOMMENDATION TO DISMISS THIS ACTION
There is currently no operative complaint in this case. On March 31, 2026,
the undersigned magistrate judge filed a Findings and Recommendation to Grant
Application to Proceed in District Court Without Prepaying Fees or Costs and
Dismiss the First Amended Complaint (“F&R”), which recommenced the dismissal
of the First Amended Complaint without prejudice and with leave to amend. ECF
No. 21. On April 20, 2026, the district judge issued an Order Adopting Magistrate
Judge’s Findings and Recommendations (“Order”). ECF No. 24. Nearly two
months elapsed but Plaintiff Dana Scanlan (“Plaintiff”), who is proceeding pro se,
did not file her second amended complaint. On June 8, 2026, was given leave to
file a second amended complaint by no later than June 18, 2026. 	ECF No. 26.
Case 1:26-cv-00069-LEK-RT Document 32 Filed 07/13/26 Page 1 of 9
PageID.<pageID>

2
Plaintiff was cautioned that “[f]ailure to do so will result in this case being
closed.” ECF No. 26 (emphasis in original).
I. 	An Extension was Previously Permitted
On June 17, 2026, the day before the deadline to file the second amended
complaint, Plaintiff filed an Emergency Motion for Extension of Time (“First
Extension Request). ECF No. 28. Plaintiff requested a sixty (60)-day extension,
citing and briefly explaining that personal hardship prevented her from meeting the
deadline. Id. at PageID.244. The Court granted in part and denied in part the First
Request. ECF No. 29. Plaintiff was granted an extension from June 18, 2026 to
July 2, 2026, but her request for a sixty (60)-day extension was denied. Id.
However, Plaintiff did not meet the July 2, 2026 deadline.
On July 6, 2026, four (4) days past the deadline, Plaintiff filed an Emergency
Notice of Newly Admitted Expert Evidence, Continuing Irreparable Harm, and
Request for Extensions of Time to File Second Amended Complaint (“Second
Extension Request”). ECF No. 30. ECF No. 30. Citing the Ninth Circuit
requirement that a pro se plaintiff’s complaint should be construed liberally,
Plaintiff alleges that, inter alia, the admission of an expert’s affidavit into evidence
constitutes good cause for the extension of time.
It is true that the courts are required to construe the inartful pleadings of pro
se litigants liberally. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th
Case 1:26-cv-00069-LEK-RT Document 32 Filed 07/13/26 Page 2 of 9
PageID.<pageID>

3
Cir. 2003) (citations omitted). However, this liberal standard does not excuse pro
se litigants from complying with the applicable rules. The Local Rules of Practice
for the United States District Court for the District of Hawaii (“Local Rules” or
“LR”) unequivocally state, “Pro se litigants shall abide by all local, federal, and
other applicable rules and/or statutes. Sanctions, including but not limited to . . .
dismissal with prejudice, may be imposed for failure to comply with the Local
Rules.” LR81.1(a). There has been no admission of an expert’s affidavit into
evidence in this case, Plaintiff failed to comply with the July 2, 2026 deadline and
Plaintiff’s Second Extension Request is untimely. The Court found that Plaintiff
failed to demonstrate good cause for an extension and denied the Second Extension
Request. ECF No. 31.
II. 	Dismissal for Failure to Prosecute.
It is well-established that the Court may dismiss an action for failure to
prosecute pursuant to Fed. R. Civ. P. 41(b). 	States S. S. Co. v. Philippine Air
Lines, 426 F.2d 803, 804 (9th Cir. 1970). 	The overarching theme of Rule 41(b) is
to encourage a plaintiff to prosecute his case with “reasonable diligence”.
Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976). 	In addition, Local
Rule 16.1 directs all litigants to “proceed with diligence to take all steps necessary
to bring an action to readiness for trial.” 	When a litigant fails to prosecute the
Case 1:26-cv-00069-LEK-RT Document 32 Filed 07/13/26 Page 3 of 9
PageID.<pageID>

4
case with such diligence, the court may impose sanctions, including dismissal of
the case. LR16.1.
“District courts have inherent power to impose sanctions to manage their
cases and courtrooms effectively, ensure the orderly administration of justice, and
to enforce compliance with their orders.” Smith v. Premiere Valet Servs., Inc.,
Case No.: CV 19-09888-CJC(MAAx), 2022 WL 1153368, at *8 (C.D. Cal. Mar. 4,
2022) (citing Int’l Union, United Mine Workers of Am. V. Bagwell, 512 U.S. 821,
831 (1994); Aloe Vera of Am., Inc. v. United States, 376 F.3d 960, 965 (9th Cir.
2004)) (citation omitted). “Indeed, ‘district courts cannot function efficiently
unless they can effectively require compliance with reasonable rules. 	Absence of
meaningful power to require that compliance would make for disorder and
preclude effective judicial administration at the trial court level.’” 	Id. (quoting
Chism v. Nat’l Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir. 1981),
overruled on other grounds by Bryant v. Ford Motor Co., 832 F.2d 1080 (9th Cir.
1987)).
In extreme circumstances, a court may use its inherent power to impose
terminating sanctions against a party that “repeatedly and willfully violates its
orders.” 	Id. (citing Fed. R. Civ. P. 16(f)(1); Leon v. IDX Sys. Corp., 464 F.3d 951,
958 (9th Cir. 2006)). 	“Dismissal is appropriate only when a court finds that the
party’s conduct demonstrates willfulness, fault, or bad faith.” 	Id. (citing Leon,
Case 1:26-cv-00069-LEK-RT Document 32 Filed 07/13/26 Page 4 of 9
PageID.<pageID>

5
464 F.3d at 958). 	“Disobedient conduct not shown to be outside the control of the
litigant” is sufficient to demonstrate willfulness, bad faith or fault. 	Id. at *9 (citing
Henry v. Gill Indus., Inc., 983 F.2d 943, 948-49 (9th Cir. 1993)).
During the pendency of this action, this Court has been generous in providing
Plaintiff with reasonable time and opportunity to satisfy the most basic litigation
obligations, namely to comply with court orders and deadlines to file an amended
complaint. 	Moreover, the Court plainly warned Plaintiff on at least two occasions
that her failure to timely file a second amended complaint would result in this case
being closed. 	ECF Nos. 26 & 29. 	Notwithstanding reasonable opportunity and
fair warning, she has failed to file the second amended complaint and otherwise
diligently prosecute this action.
To determine whether to dismiss a case for lack of prosecution, the court must
weigh the following 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
defendant[ ]; (4) the availability of less drastic alternatives; and (5) the public
policy favoring the disposition of cases on their merits” (“Pagtalunan factors”).
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
For the reasons set forth below, the Court finds that dismissal of this action is
appropriate given Plaintiff’s failure file a second amended complaint and otherwise
Case 1:26-cv-00069-LEK-RT Document 32 Filed 07/13/26 Page 5 of 9
PageID.<pageID>

6
comply with the Court’s clear directives and deadlines. 	First, the public’s interest
in expeditious resolution of this litigation weighs in favor of dismissal because this
case has been pending since February 12, 2026, and yet there is no operative
complaint. 	To date, nearly five (5) months have elapsed since the filing of the
initial Complaint, over three (3) months since the F&R was filed, and over two (2)
months since the district judge’s Order adopting the undersigned’s
recommendations to dismiss the FAC with leave to file a second amended
complaint. 	ECF Nos. 1, 21 & 24. 	That we are currently still without an operative
complaint is solely attributed to Plaintiff’s conscious inaction and lack of diligence
in resolving this case on an expeditious manner.
Second, the Court’s need to manage its docket weighs strongly in favor of
dismissal because Plaintiffs’ failure to timely file a second amended complaint has
interfered with the Court’s ability to manage its docket. Plaintiff’s lack of
diligence has prevented the Court from doing its most basic and fundamental
functions, such as convening a Rule 16 scheduling conference and entering a
scheduling order. Without a scheduling order, it is impossible to address, much
less resolve the substantive claims and issues in this case. Plaintiffs’ non-
compliance with the Court’s directives and deadlines has effectively stalled these
proceedings and prevented it from efficiently managing this case. The Court has
been required to schedule and needlessly reschedule court proceedings and
Case 1:26-cv-00069-LEK-RT Document 32 Filed 07/13/26 Page 6 of 9
PageID.<pageID>

7
deadlines all because Plaintiff’s failure to be a diligent, responsible litigant. This
has required the Court to unnecessarily devote time and attention to a case that
Plaintiff is not diligently pursuing.
Third, the risk of prejudice to Defendants is potentially great. 	Defendants
will suffer prejudice if this case continues to languish without Plaintiff meeting her
most basic obligations to follow court orders and deadlines, file a legally sufficient
pleading, and otherwise diligently prosecute this action. Plaintiff’s non-
compliance and inaction has impaired Defendants’ right to notice, service and
defend themselves. Ultimately, this threatens interference with the resolution of
this case. See Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. Postal Serv., 833
F.2d 128, 131 (9th Cir. 1987)).
Fourth, under the circumstances of this case, less drastic sanctions short of a
dismissal would not be effective. The Court has twice reminded Plaintiff to file a
second amended complaint and provided ample time to do so, yet all of this has
been for naught. ECF Nos. 26 & 29. Given the foregoing, the Court finds that it
would be futile to recommend a lesser sanction because Plaintiff has failed to
comply with the Court’s prior directives and otherwise take the necessary steps to
prosecute this action.
Fifth and finally, public policy favors disposition of cases on their merits.
Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). This factor
Case 1:26-cv-00069-LEK-RT Document 32 Filed 07/13/26 Page 7 of 9
PageID.<pageID>

8
weighs against dismissal. Id. However, this Court finds that because four of the
factors weigh in favor of dismissal, this final factor is outweighed. Accordingly,
dismissal is appropriate.
Notwithstanding this Court’s finding that dismissal is warranted, the Court
does not find sufficient grounds to support dismissal with prejudice. The Court
finds that four of the five Pagtalunan factors weigh in favor of dismissal; however,
under these circumstances, these factors do not weigh “strongly” in favor of
dismissal. Cf. In re Lagmay, Civ. No. 15-00166 DKW-RLP, 2015 WL 5970667, at
*2 (D. Haw. Oct. 13, 2015), aff’d sub nom., Lagmay v. Nobriga, No. 15-17068,
2016 WL 7407294 (9th Cir. Dec. 22, 2016) (dismissal with prejudice is appropriate
when at least three of the Pagtalunan factors weigh “strongly” in support of
dismissal). Accordingly, the Court finds that dismissal is appropriate and
recommends that the district court dismiss this case without prejudice.
CONCLUSION
Based upon the foregoing, this Court FINDS that Plaintiff has not been
diligent and has failed to file a second amended complaint as directed by the Court.
Accordingly, there being no operative complaint, this Court RECOMMENDS this
case be DISMISSED WITHOUT PREJUDICE and CLOSED.
//
//
Case 1:26-cv-00069-LEK-RT Document 32 Filed 07/13/26 Page 8 of 9
PageID.<pageID>

9
IT IS SO FOUND AND RECOMMENDED.
DATED: Honolulu, Hawaii, July 13, 2026.
Civ. No. 26-00069 LEK-RT; Dana Scanlan vs. State Actors and Officials, in Their
Official Capacities, et al.; Findings and Recommendation to Dismiss This Action
Rom A. Trader
United States Magistrate Judge
Andrade
Case 1:26-cv-00069-LEK-RT Document 32 Filed 07/13/26 Page 9 of 9
PageID.<pageID>