JJCO, Inc. v. Isuzu Motors America, Inc. et al
Filing
567
ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER GRANTING IN PART DEFENDANT/JUDGMENT CREDITOR ISUZU MOTORS' SECOND EX PARTE MOTION FOR WRIT OF EXECUTION re 565 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/27/12. "This c ourt affirms the Magistrate Judge's Order and denies JJCO's request that the court certify a question to the Hawaii Supreme Court. Isuzu shall submit to the Clerk of Court a writ of execution consistent with Magistrate Judge Puglisi' ;s Order." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JJCO, INC., dba JACKSON
ISUZU,
)
)
)
Plaintiff,
)
)
vs.
)
)
ISUZU MOTORS AMERICA, LLC,
)
)
)
Defendants.
_____________________________ )
Civ. No. 08-00419 SOM-LEK
ORDER AFFIRMING MAGISTRATE
JUDGE’S ORDER GRANTING IN
PART DEFENDANT/JUDGMENT
CREDITOR ISUZU MOTORS' SECOND
EX PARTE MOTION FOR WRIT OF
EXECUTION
ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER
GRANTING IN PART DEFENDANT/JUDGMENT CREDITOR ISUZU MOTORS'
SECOND EX PARTE MOTION FOR WRIT OF EXECUTION
I.
INTRODUCTION.
Before the court is an appeal from the Magistrate
Judge’s Order Granting in Part Defendant/Judgment Creditor Isuzu
Motors’ Second Ex Parte Motion for Writ of Execution.
This court
affirms the order, but notes also that, assuming the court
construes that order as findings and a recommendation (“F&R”),
the F&R is adopted following de novo review.
II.
FACTUAL BACKGROUND.
This case involves a business dispute between Plaintiff
JJCO, Inc., and Defendant Isuzu Motors America, LLC (“Isuzu”).
From 1998 until 2008, JJCO was authorized to sell Isuzu vehicles
pursuant to a Sales and Service Agreement (“Agreement”) with
Isuzu.
On January 30, 2008, Isuzu announced its plans to stop
distributing new Isuzu vehicles in North America.
JJCO and Isuzu
disagreed about whether Isuzu continued to have obligations under
the Agreement, and JJCO ultimately sued.
In 2010, the court conducted a jury trial on this
matter.
The court granted Isuzu’s motion for judgment as a
matter of law as to several matters during the trial, and the
jury subsequently returned a verdict in favor of Isuzu on the
remaining counts.
On June 22, 2010, the court denied JJCO’s Motion to
Alter or Amend Judgment and/or to Order a New Trial.
457.
JJCO filed a Notice of Appeal on July 21, 2010.
ECF No.
ECF No.
462.
On October 21, 2010, this court issued an order
awarding Isuzu $303,892.43 in attorneys’ fees and costs under
section 607-14 of Hawaii Revised Statutes, which allows the
prevailing party to recover fees in an assumpsit action.
ECF No.
491.
The Ninth Circuit affirmed the judgment entered by this
court, noting in the process that it lacked jurisdiction over the
portion of JJCO’s appeal addressing the award of attorneys’ fees
because JJCO had not filed a notice of appeal from that postjudgment order.
ECF No. 539.
On January 19, 2011, then-Magistrate Judge Leslie
Kobayashi granted Isuzu’s Ex Parte Motion for a Writ of
Execution.
ECF No. 508-6.
Shortly thereafter, then-Magistrate
2
Judge Kobayashi granted JJCO’s Ex Parte Motion to Reconsider or
Dissolve the Writ of Execution “based on technical defects” in
Isuzu’s underlying motion.
ECF No. 521 at 16.
She noted that
“[t]he granting of the Motion for Reconsideration does not
diminish, or [somehow] erase, Defendant’s judgment for attorneys’
fees and costs.” Id. at 16.
On August 22, 2012, Isuzu filed its Second Ex Parte
Motion for Writ of Execution (the “Motion”), which is the subject
of the appeal before the court.
ECF No. 541.
On November 9,
2012, Magistrate Judge Richard Puglisi issued an order granting
the portion of the Motion seeking a writ of execution for the
$303,892.43 award of fees and costs, plus interest.
Order
Granting in Part Defendant/Judgment Creditor Isuzu Motors
America, LLC’s Second Ex Parte Motion for Writ of Execution
(“Order”), ECF No. 563.
The Order cited section 651-32 of Hawaii
Revised Statutes, which sets forth the procedure for issuance of
a writ of execution.
Order at 5-6.
Magistrate Judge Puglisi
said, “The mandatory language of Section 651-32 requires that the
Court issue a writ of execution.
There is no discretionary
language that would allow the Court to decline to issue a writ.”
Id. at 6.
In appealing Magistrate Judge Puglisi’s Order, JJCO
says:
The Magistrate Judge’s decision should be
reviewed and reversed as clearly erroneous or
3
contrary to law since issuing the Writ of
Execution amounts to a fruitless and
frivolous act where he had the discretion to
consider the equities and based thereon
should have denied the requested Writ of
Execution at this time when it is undisputed
there are insufficient assets to satisfy the
debts of the priority creditors with no
reasonable probability of excess funds to be
applied to Isuzu’s third position judgment in
an execution sale.
Appeal at 2, ECF No. 565.
JJCO also asks for certification of
the following question to the Hawaii Supreme Court: “Whether
equitable standards may be considered by the court in determining
whether to issue a writ of execution under Chapter 651 HRS,
especially where those equitable standards would not permit such
issuance.”
Id. at 11.
Neither side appeals the Magistrate
Judge’s denial of requests to allow credit bids at an execution
sale.
III.
STANDARD OF REVIEW.
There is some confusion about whether magistrate judges
may rule on motions for writs of execution or may only issue
findings and recommendations.
If magistrate judges may order
that writs of execution issue, this court should examine the
Order only to determine whether it is “clearly erroneous or
contrary to law.”
28 U.S.C. § 636(b)(1)(A).
If, however, a
magistrate judge should only issue an F&R on such a matter, this
court must apply a de novo standard of review.
See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72 (b); Local Rules 72.5 and 74.2;
4
Int’l Longshore & Warehouse Union, Local 142, AFL-CIO v. Foodland
Super Market, Ltd., 2004 WL 2806517, at *1 (D. Haw. Sept. 15,
2004).
In Berry v. Hawaiian Express Services, Inc., Civ. No.
03-0385 DAE-LEK, 2008 WL 4369769, at *1 n.1 (D. Haw. Sept. 24,
2008), then-Magistrate Judge Leslie Kobayashi (who issued an
order granting Isuzu’s first motion seeking a writ of execution),
noted that 28 U.S.C. § 636(b)(1)(A) provides that a district
judge “may designate a magistrate judge to hear and determine any
pretrial matter pending before the court” except certain
enumerated matters.
(Emphasis in order.)
Accordingly, then-
Magistrate Judge Kobayashi did not issue an order.
Instead, she
issued findings and a recommendation that the motion be denied on
the grounds that the judgment debtor and the property in issue
were outside of Hawaii.
No objections to the recommendation were
filed, and the district judge adopted the findings and
recommendation.
See Berry v. Hawaiian Express Services, Inc.,
Civ. No. 03-0385 DAE-LEK, 2008 WL 4601662 (D. Haw. Oct. 16,
2008).
In an abundance of caution, this court states here
that, even if it reviews the matter now before it de novo, it
would affirm.
The title of the present ruling refers to
affirmance of the Order, suggesting review for clear error or for
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a legal conclusion “contrary to law,” but this court has indeed
also reviewed the Order de novo and concluded that it is correct.
IV.
ANALYSIS.
JJCO objects to Magistrate Judge Puglisi’s reading of
section 651-32 of Hawaii Revised Statutes.
No. 565.
Appeal at 2-10, ECF
The statute provides:
Every district judge at the request of the
party recovering any civil judgment in the
judge’s court, unless the judgment is duly
appealed from, shall issue the judge’s
execution against the property of the party
recovered against, which execution may be in
the form established by the usage and
practice of the issuing court and may be
directed to any police officer of the
judicial circuit in which the district court
is situated; provided the defendant or any of
the defendants is a resident of the circuit.
Haw. Rev. Stat. § 651-32 (emphasis added).
Magistrate Judge
Puglisi concluded, “The language of Section 651-32 is mandatory,
not permissive.”
He therefore granted the Motion.
Order at 6.
Even conducting a de novo review of the record and the law, this
court arrives at the same conclusion.
651-32 is clear.
The language of section
As Magistrate Judge Puglisi concluded, “There
is no discretionary language that would allow the Court to
decline to issue a writ.”
Order at 6.
JJCO complains that this plain-language reading of the
statute is “contrary to law since the court has discretion to
consider the equities.”
Appeal at 5.
6
JJCO cites to numerous
cases for the proposition that a court of equity can “intervene
to prevent interference with creditor’s rights, to prevent an
injustice, or to obviate a vexatious use of legal process, all of
which exist here.”
Id.
None of these cases supports the
proposition that the court should read an exception into a
clearly written statute.
Whatever equities might arguably come
into play in resolving contractual disputes or other matters of
common law, it is hard to see how a court may avoid compliance
with a statute on such grounds.
JJCO does not even attempt to
show that Hawaii’s legislature intended to permit such avoidance.
It has been said that equitable intervention sometimes
avoids an unconscionable result.
See generally Truly v. Wanzer,
46 U.S. 141, 142 (1847) (recognizing the appropriateness of
equitable intervention to avoid a result “against conscience”).
However, JJCO does not establish that the issuance of a writ of
execution is unconscionable.
First, section 651-32 is a duly
enacted statute, and its constitutionality is not here
challenged.
Unconscionability is a concept typically referred to
in contractual interpretation, not in statutory compliance.
Second, quite apart from failing to cite to any case in which
equitable intervention nullifies the clear command of a statute,
JJCO fails to make a record establishing that unconscionable
results will necessarily flow from execution of a writ.
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JJCO
only speculates that “an execution sale will force the closure of
an ongoing business employing 44 employees.”
Appeal at 2.
JJCO also asks this court to certify the following
question to the Hawaii Supreme Court: “Whether equitable
standards may be considered by the court in determining whether
to issue a writ of execution under Chapter 651 HRS, especially
where those equitable standards would not permit such issuance.”
Id. at 11.
This court sees no need for certification here,
because the relevant statutory language is unambiguous.
See
Davis v. Four Seasons Hotel Ltd., 2011 WL 3841075, at *10 (D.
Haw. Aug. 26, 2011).
This court therefore declines JJCO’s
request to certify a question to the Hawaii Supreme Court.
V.
CONCLUSION.
This court affirms the Magistrate Judge’s Order and
denies JJCO’s request that the court certify a question to the
Hawaii Supreme Court.
Isuzu shall submit to the Clerk of Court a
writ of execution consistent with Magistrate Judge Puglisi’s
Order.
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IT IS SO ORDERED.
DATED: Honolulu, December 27, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
JJCO, INC., dba JACKSON ISUZU v. ISUZU MOTORS AMERICA, LLC, Civ No. 08-00419 SOM/LEK;
ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER GRANTING IN PART DEFENDANT/JUDGMENT CREDITOR
ISUZU MOTORS’ SECOND EX PARTE MOTION FOR WRIT OF EXECUTION
9
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