Coles v. Eagle et al
ORDER DENYING APPEAL AND AFFIRMING MAGISTRATE JUDGE ORDER DATED MARCH 1, 2013 re: 365 . Signed by JUDGE LESLIE E. KOBAYASHI on 4/29/2013. ~ Order denies Appeal (doc 365 ) of U.S. Magistrate Judge Barry M. Kurren's Orde r granting Plaintiff's Motion to Amend Rule 16 Scheduling Order to Continue Trial, Reopen Discovery and Amend Complaint re: doc 361 . Plaintiff's Motion to Amend Rule 16 Scheduling Order, etc.: doc no. 350 ~ (afc)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
HARRY J. COLES,
JOSHUA EAGLE, ET AL.,
CIVIL NO. 09-00167 LEK-BMK
ORDER DENYING APPEAL AND AFFIRMING
MAGISTRATE JUDGE ORDER DATED MARCH 1, 2013
On March 1, 2013, the magistrate judge granted
Defendants Joshua Eagle and Elton Robertson’s Motion for Leave to
Amend the Rule 16 Deadline to Permit the Filing of a Dispositive
Motion (“Defendants’ Motion”) [dkt. no. 342,] and granted
Plaintiff Harry Cole’s Motion to Amend Rule 16 Scheduling Order
to Continue Trial, Reopen Discovery, and Amend the Complaint
[Dkt. no. 350.]
The magistrate judge
also issued an amended scheduling order (“Order”), setting forth
new trial dates and associated deadlines.
[Dkt. no. 362.]
March 15, 2013, Defendants filed their Appeal of Magistrate
T. Kurren’s (sic) March 1, 2013 Order Granting Plaintiff’s
Motion to Amend Rule 16 Scheduling Order to Continue Trial,
Reopen Discovery and Amend His Complaint (“Appeal”).
The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).
After careful consideration of the
Appeal, memorandum in support, declaration of counsel, appended
exhibits and errata filed by Defendants, the Appeal is hereby
DENIED for the reasons set forth below.
The parties and the Court are familiar with the
extensive factual and legal history of this case, and the Court
will only discuss the events that are relevant to the review of
the Order and the Appeal.
Plaintiff’s Motion requested that the
district court: (1) amend the existing scheduling order;
(2) continue the trial date; (3) reopen discovery; and (4) allow
Plaintiff to amend his Complaint.
The Appeal requests that the Court set aside the
March 1, 2013 Order, and deny Plaintiff’s Motion in its entirety.
They argue that the Order contradicts this Court’s previous
orders and goes against the law of the case.
With respect to the
request to amend the Complaint, Defendants argue that there were
no new facts alleged to support the Order, other than Plaintiff’s
counsel’s assertion that Plaintiff was formerly proceeding pro se
and that he has since retained counsel.
Pursuant to 28 U.S.C. § 636(b)(1)(A), a
district judge may designate a magistrate judge to
hear and decide a pretrial matter pending before
the court. The decision of the magistrate judge
on non-dispositive matters is final. Bhan v. NME
Hosp., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991).
However, a district judge may reconsider a
magistrate’s order on these non-dispositive
pretrial matters and set aside that order, or any
portion thereof, if it is “clearly erroneous or
contrary to law.” Fed. R. Civ. P. 72(a); 28
U.S.C. § 636(b)(1)(A); LR 74.1; see Rivera v.
NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004);
see also Osband v. Woodford, 290 F.3d 1036, 1041
(9th Cir. 2002).
. . . .
“A decision is ‘contrary to law’ if it
applies an incorrect legal standard or fails to
consider an element of the applicable standard.”
Na Pali Haweo Cmty. Ass’n v. Grande, 252 F.R.D.
672, 674 (D. Haw. 2008); see Hunt v. Nat’l
Broadcasting Co., 872 F.2d 289, 292 (9th Cir.
1989) (noting that such failures constitute abuse
Hasegawa v. Hawaii, CV No. 10–00745 DAE–BMK, 2011 WL 6258831, at
*1-2 (D. Hawai`i Dec. 14, 2011).
The threshold of the “clearly erroneous” test is
high. United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948) (“A finding is ‘clearly erroneous'
when although there is evidence to support it, the
reviewing court on the entire evidence is left
with the definite and firm conviction that a
mistake has been committed.”); Thorp v. Kepoo, 100
F. Supp. 2d 1258, 1260 (D. Haw. 2000) (the clearly
erroneous standard is “significantly deferential,
requiring a definite and firm conviction that a
mistake has been committed.”).
Dowkin v. Honolulu Police Dep’t, Civil No. 10–00087 SOM/RLP, 2011
WL 3021784, at *1 (D. Hawai‘i July 22, 2011).
At the outset, the Court notes that the standard
applicable to an appeal of a magistrate judge’s non-dispositive
order is highly deferential.
The Order appealed from here does
not set forth the magistrate judge’s reasoning in ruling on
Plaintiff’s Motion and Defendants’ Motion, but was issued
followed a hearing on the motions.
Defendants argue that the
magistrate should not have allowed Plaintiff to amend his
Complaint, add additional claims and parties, or extend the scope
of discovery because the Court has already decided the same
issues that Plaintiff attempted to reopen.
Under Federal Rule of Civil Procedure 16, the pretrial
scheduling order “may be modified only for good cause and with
the judge’s consent.”
Fed. R. Civ. P. 16(b)(4).
argue that Plaintiff’s previous pro se status does not amount to
The Court agrees that pro se litigants must follow
the same rules of procedure that govern other litigants.
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
The “good cause” inquiry focuses on the diligence of
the party seeking to modify the scheduling order; if the party
seeking the modification was not diligent, the court should deny
See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080,
1087 (9th Cir. 2002).
“The pretrial schedule may be modified ‘if
it cannot reasonably be met despite the diligence of the party
seeking the extension.’”
Id. (quoting Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).
“Central to the required showing of diligence
is whether the movant discharged [his] obligation
under Rule 16 to collaborate with the district
court in managing the case.” Jackson [v.
Laureate, Inc., 186 F.R.D. 605,] 607 [(E.D. Cal.
1999)]. Accordingly, relevant inquiries include:
whether the movant was diligent in helping the
court to create a workable Rule 16 order; whether
matters that were not, and could not have been,
foreseeable at the time of the scheduling
conference caused the need for amendment; and
whether the movant was diligent in seeking
amendment once the need to amend became apparent.
Id. at 608 (citations omitted). “[C]arelessness
is not compatible with a finding of diligence and
offers no reason for a grant of relief.” Johnson,
975 F.2d at 609. However, the district court is
given broad discretion under Rule 16. Id. at 607.
Although the existence or degree of prejudice to
the party opposing the modification might supply
additional reasons to deny a motion, the focus of
the inquiry is upon the moving party’s reasons for
seeking modification. See Gestetner Corp. v. Case
Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985).
Moreover, if the trial court determines that
refusal to allow a modification of the pretrial
order could result in injustice, while allowing
the modification would cause no substantial injury
to the opponent and no more than a slight
inconvenience to the court, modification is
appropriate. United States v. First Nat. Bank of
Circle, 652 F.2d 882 (9th Cir. 1981).
Jiminez v. Sambrano, No. 04cv1833 L(PCL), 2009 WL 937042 at *2
(S.D. Cal. Apr. 6, 2009).
In Jiminez, the prisoner plaintiff initially filed his
complaint while proceeding pro se.
After he was appointed
counsel, he sought to file an amended complaint to add a prayer
for relief for punitive damages, and to dismiss one of the
The district court in that case noted that Plaintiff
had a good record of timely filings before the appointment of
counsel, and that he had not been dilatory or sought to delay
matters with the filing of the motion to amend.
“good cause” under Rule 16 “to allow an amendment because
Plaintiff’s counsel now brings this motion after a thorough
review of the facts and issues set for trial.”
2009 WL 937042 at
So too here.
The Court notes that there is no indication that
Plaintiff has not been diligent in seeking amendment, both while
proceeding pro se and now with counsel.
Moreover, there is no
evidence of undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies, undue prejudice, or futility of the
Further, to the extent Defendants argue that
the magistrate judge’s ruling with respect to the instant
Plaintiff’s Motion is barred by the Court’s ruling on Plaintiff’s
earlier motion to amend [dkt. no. 192,] the Court disagrees.
motion to amend that Plaintiff filed while proceeding pro se was
filed after United States District Judge David Alan Ezra granted
partial summary judgment in Defendants’ favor, which was then
subsequently reversed by the Ninth Circuit.
Judge Ezra’s summary
judgment order limited Plaintiff’s claims to the force used after
he was removed from the vehicle, but not the force used to
shatter the window and pull Plaintiff from the vehicle.
Coles v. Eagle, 753 F. Supp. 2d 1092, 1101 (D. Hawai`i 2010).
The Ninth Circuit reversed the grant of summary judgment and jury
verdict, the practical effect of which is to put the Court and
the parties back to the status quo before the grant of partial
Plaintiff’s Motion, therefore, does not ask
the Court to revisit a prior ruling because the Court’s denial of
Plaintiff’s earlier motion to amend was based on the state of the
action at that time, i.e., after the grant of partial summary
In sum, the Court concludes that the magistrate judge’s
Order granting Plaintiff’s Motion was not clearly erroneous or
contrary to law.
The Appeal is therefore DENIED.
On the basis of the foregoing, the Defendants’ Appeal
of Magistrate Barry T. Kurren’s (sic) March 1, 2013 Order
Granting Plaintiff’s Motion to Amend Rule 16 Scheduling Order to
Continue Trial, Reopen Discovery and Amend His Complaint, filed
March 15, 2013, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 29, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
HARRY COLES V. JOSHUA EAGLE, ET AL.; CIVIL NO. 09-00167 LEK-BMK;
ORDER DENYING APPEAL AND AFFIRMING MAGISTRATE JUDGE ORDER DATED
MARCH 1, 2013
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