                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 26 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MURIEL B. SETO; FRIENDS OF                       No. 11-15510
HE’EIA STATE PARK; HUI MALAMA
‘AINA O LAIE; DAWN K. WASSON,                    D.C. No. 1:10-cv-00351-SOM-
                                                 BMK
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

LAURA THIELEN, as Director of the
Department of Land and Natural
Resources of the State of Hawaii, and in
her capacity as Chair of the Board of Land
and Natural Resources, and in her personal
capacity; LINDA LINGLE, in her capacity
as Governor of the State of Hawaii;
DANIEL QUINN, in his capacity as
Administrator of the Parks Division of
Department of Land and Natural
Resources and in his personal capacity;
CURT COTTRELL, in his capacity as
Member of Department of Land and
Natural Resources He’eia State Park Lease
Selection Committee, Department of Land
and Natural Resources of the State of
Hawaii, and other DLNR scope of
employment duties, and in his personal
capacity; STEVEN THOMPSON, in his
capacity as Chairman of Department of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Land and Natural Resources, He’eia State
Park Lease Selection Committee,
Department of Land and Natural
Resources of the State of Hawaii, and
other DLNR scope of employment duties,
and in his personal capacity; RAYMOND
SANBORN, in his capacity as President
and Chairman of the Board of Kama’aina
Care Inc., and in his personal capacity;
KAMA’AINA CARE INCORPORATED;
JOHN AND JANE DOES 1-40; DOE
PARTNERSHIPS 1-20; DOE
CORPORATIONS 1-30; OTHER DOE
ENTITIES 1-30,

            Defendants - Appellees.



MURIEL B. SETO; FRIENDS OF                   No. 12-15099
HE’EIA STATE PARK; HUI MALAMA
‘AINA O LAIE; DAWN K. WASSON,                D.C. No. 1:10-cv-00351-SOM-
                                             BMK
            Plaintiffs - Appellants,

 v.

LAURA THIELEN, as Director of the
Department of Land and Natural
Resources of the State of Hawaii, and in
her capacity as Chair of the Board of Land
and Natural Resources, and in her personal
capacity; LINDA LINGLE, in her capacity
as Governor of the State of Hawaii;
DANIEL QUINN, in his capacity as
Administrator of the Parks Division of
Department of Land and Natural


                                       2
Resources and in his personal capacity;
CURT COTTRELL, in his capacity as
Member of Department of Land and
Natural Resources He’eia State Park Lease
Selection Committee, Department of Land
and Natural Resources of the State of
Hawaii, and other DLNR scope of
employment duties, and in his personal
capacity; RAYMOND SANBORN, in his
capacity as President and Chairman of the
Board of Kama’aina Care Inc., and in his
personal capacity; STEVEN THOMPSON,
in his capacity as Chairman of Department
of Land and Natural Resources, He’eia
State Park Lease Selection Committee,
Department of Land and Natural
Resources of the State of Hawaii, and
other DLNR scope of employment duties,
and in his personal capacity;
KAMA’AINA CARE INCORPORATED;
JOHN AND JANE DOES 1-40; DOE
PARTNERSHIPS 1-20; DOE
CORPORATIONS 1-30; OTHER DOE
ENTITIES 1-30,

            Defendants - Appellees.



                 Appeals from the United States District Court
                           for the District of Hawaii
              Susan Oki Mollway, Chief District Judge, Presiding




                                      3
                           Submitted February 13, 2013 **
                                Honolulu, Hawaii

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

      In case No. 11-15510, Muriel B. Seto, Friends of He’eia State Park, Hui

Malama ‘Aina O Laie, and Dawn K. Wasson (“Plaintiffs”) appeal from (1) the

district court’s order dismissing Plaintiffs’ verified complaint under Federal Rule

of Civil Procedure 41(b), (2) the magistrate judge’s order denying Plaintiffs’

Motion to Seek Leave to File First Amended Complaint, (3) the district court’s

order denying Plaintiffs’ Motion to Disqualify Judge Susan Oki Mollway From

Hearing Further Matters in the Above Entitled Case, and (4) the district court’s

order dismissing Plaintiffs’ ninth cause of action. In case No. 12-15099, Plaintiffs

appeal from the district court’s order adopting the magistrate judge’s findings and

recommendations and imposing Federal Rule of Civil Procedure 11 sanctions

against counsel in the amount of $70,257.66. The facts are known to the parties.

We affirm.

                                    No. 11-15510

      1. We review a district court’s “dismissal for failure to comply with a court

order under [Federal Rule of Civil Procedure] 41(b) . . . for abuse of discretion.”


        **
             The panel unanimously concludes case No. 11-15510 is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).

                                          4
Johns v. Cnty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); see also Hearns v.

San Bernardino Police Dep’t, 530 F.3d 1124, 1129 (9th Cir. 2008) (“Federal Rule

of Civil Procedure 41(b) authorizes a district court to dismiss a complaint with

prejudice for failure to comply with Rule 8(a).”). We will reverse a district court’s

decision as an abuse of discretion only where we “determine de novo [that] the trial

court identified the [in]correct legal rule to apply,” or we “determine [that] the trial

court’s application of the correct legal standard was (1) illogical, (2) implausible,

or (3) without support in inferences that may be drawn from the facts in the

record.” United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en

banc) (internal quotation marks omitted).

      “District courts have inherent power to control their dockets. In the exercise

of that power they may impose sanctions including, where appropriate, default or

dismissal.” Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986)

(per curiam). “Pursuant to Federal Rule of Civil Procedure 41(b), the district court

may dismiss an action for failure to comply with any order of the court.” Ferdik v.

Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Dismissal is a harsh penalty,

however, so a district court must only employ this measure in “extreme

circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). But

see McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (“The harshness of a


                                            5
dismissal with prejudice is directly proportionate to the likelihood that plaintiff

would prevail if permitted to go forward to trial.” (internal quotation marks

omitted)).

      Here, Plaintiffs’ verified complaint was in clear violation of Federal Rule of

Civil Procedure 8. See McHenry, 84 F.3d at 1177; Nevijel v. N. Coast Life Ins.

Co., 651 F.2d 671, 674 (9th Cir. 1981); Schmidt v. Herrmann, 614 F.2d 1221, 1224

(9th Cir. 1980); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969).

Plaintiffs repeatedly failed to comply with the district court’s orders directing them

to remedy the drastic shortcomings of their pleadings. Defendants incurred

expenses defending against Plaintiffs’ allegations and, without knowing the crux of

the claims leveled against them, were unfairly handicapped in defending

themselves if the case went forward. Moreover, Plaintiffs were warned several

times that failure to comply with the district court’s orders would result in

automatic dismissal. The district court did not abuse its discretion in dismissing

Plaintiffs’ verified complaint.

      2. A motion for leave to amend is a nondispositive motion which a

magistrate judge may properly decide. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.

72(a); U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102

& n.1 (9th Cir. 1985), superseded by rule on other grounds as recognized by


                                           6
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). Federal

Rule of Civil Procedure 72(a) provides, however, an opportunity for a party to file

objections to the magistrate judge’s order, and “[a] party may not assign as error a

defect in the [magistrate judge’s] order not timely objected to.” Fed. R. Civ. P.

72(a). We have held that “a party who fails to file timely objections to a magistrate

judge’s nondispositive order with the district judge to whom the case is assigned

forfeits its right to appellate review of that order.” Simpson, 77 F.3d at 1174.

Plaintiffs failed to file any objections to the magistrate judge’s nondispositive

order, forfeiting their right to appellate review of this issue.

      3. We review a “district court’s determination of whether recusal or

disqualification is necessary,” under 28 U.S.C. § 455, for an abuse of discretion.

E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1294 (9th Cir. 1992).

“Section 455 requires not only that a judge be subjectively confident of his ability

to be evenhanded, but also that an informed, rational, objective observer would not

doubt his impartiality.” Bernard v. Coyne (In re Bernard), 31 F.3d 842, 844 (9th

Cir. 1994).

      The record is devoid of any indication that the district judge was personally

biased against Plaintiffs, or had any personal knowledge of the case, or that any

other reason existed for disqualifying the district judge under 28 U.S.C. § 455.


                                            7
The district court’s characterization of Plaintiffs as “disgruntled former tenants”

and “unsuccessful bidders” did not evince any bias. Likewise, there is no evidence

the district judge was predisposed against Plaintiffs or had predetermined the case.

Nothing in the record raises any objective question as to the district judge’s

impartiality in this case. Thus, the district court did not abuse its discretion in

denying the motion for disqualification.

      4. We need not reach Plaintiffs’ challenge to the district court’s order

dismissing their ninth cause of action because it is moot given that the district court

did not err in dismissing the verified complaint for failure to comply with Federal

Rule of Civil Procedure 8. But, regardless, the district court did not err in

dismissing Plaintiffs’ ninth cause of action based on the National Historic

Preservation Act. See Shanks v. Dressel, 540 F.3d 1082, 1092 (9th Cir. 2008).

                                     No. 12-15099

      We review a district court’s imposition of sanctions under Federal Rule of

Civil Procedure 11 for an abuse of discretion. Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405 (1990); Sneller v. City of Bainbridge Island, 606 F.3d 636, 638

(9th Cir. 2010). Federal Rule of Civil Procedure 11 “authorizes a court to impose a

sanction on any attorney, law firm, or party that brings a claim for an improper




                                            8
purpose or without support in law or evidence.” Sneller, 606 F.3d at 638–39; see

also Fed. R. Civ. P. 11(b), (c).

             When, as here, a complaint is the primary focus of Rule 11
             proceedings, a district court must conduct a two-prong
             inquiry to determine (1) whether the complaint is legally or
             factually baseless from an objective perspective, and (2) if
             the attorney has conducted a reasonable and competent
             inquiry before signing and filing it.

Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (internal quotation marks

omitted). Here, Plaintiffs’ verified complaint was wholly without legal basis, and

there is no evidence that Plaintiffs’ counsel engaged in adequate legal research

prior to filing the verified complaint. See Christian v. Mattel, Inc., 286 F.3d 1118,

1127–29 (9th Cir. 2002).

      Moreover, the motion for sanctions under Federal Rule of Civil Procedure

11 was not barred by res judicata because the previous “Motion for Award of Costs

and Stay of Proceedings Pursuant to FRCP 41(d)” did not present an identity of

either claims or issues. See Cell Therapeutics Inc. v. Lash Grp. Inc., 586 F.3d

1204, 1212 (9th Cir. 2010); Littlejohn v. United States, 321 F.3d 915, 923 (9th Cir.

2003). The district court did not err in dismissing Harold Shepherd from the

motion for sanctions because Shepherd did not sign the relevant pleadings. See

Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 546 (1991).



                                          9
Plaintiffs have not disputed the reasonableness of the amount of sanctions.

Therefore, the district court did not abuse its discretion in granting the motion for

sanctions in the amount of $70,257.66.

      The district court’s judgments in case No. 11-15510 and case No. 12-15099

are AFFIRMED.




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