Coles v. Eagle et al
ORDER DENYING WITHOUT PREJUDICE DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT ON COUNTS II AND IV OF FIRST AMENDED COMPLAINT re 435 Motion for Summary Judgment. Signed by JUDGE LESLIE E. KOBAYASHI on 10/08/2014. (eps)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 WITHOUT PREJUDICE DEFENDANT
CITY AND COUNTY OF HONOLULU’S MOTION FOR SUMMARY
JUDGMENT ON COUNTS II AND IV OF FIRST AMENDED COMPLAINT
Before the Court is Defendant City and County of
Honolulu’s (“the City”) Motion for Summary Judgment on Counts II
and IV of First Amended Complaint (“Merits Motion”), filed on
June 18, 2014.1
[Dkt. no. 435.]
Plaintiff Harry J. Coles
(“Coles”) filed a memorandum in opposition to the Motions on
September 8, 2014,2 and the City filed a reply in support of the
Also on June 18, 2014, the City filed its Motion for
Partial Summary Judgment Re Damages for any Alleged Loss of
Income (“Income Damages Motion”) and its Motion for Partial
Summary Judgment Re Bodily Injury and Medical Special Damages
(“Bodily Injury Damages Motion”). [Dkt. nos. 437, 439.] This
Court will issue a separate order ruling on the Income Damages
Motion, and the Bodily Injury Damages Motion. The Court will
refer to the Merits Motion, the Income Damages Motion, and the
Bodily Injury Damages Motion collectively as “the Motions.”
Although Coles titled the document “Plaintiff’s Opposition
to City and County of Honolulu’s Motion for Partial Summary
Judgment Re Bodily Injury and Special Damages,” he states within
the document that it responds to all three Motions. [Mem. in
Opp. at 2.] All references to the memorandum in opposition in
Merits Motion on September 15, 2014.
[Dkt. nos. 488, 493.]
September 23, 2014, this Court issued an entering order finding
the Motions 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
[Dkt. no. 496.]
After careful consideration of the
Merits Motion, supporting and opposing memoranda, and the
relevant legal authority, the City’s Merits Motion is HEREBY
DENIED WITHOUT PREJUDICE for the reasons set forth below.
The factual and procedural background of this case is
set forth in this Court’s Order Denying Defendant City and County
of Honolulu’s Motion for Summary Judgment Re Statute of
Limitations, filed May 27, 2014 (“5/27/14 Summary Judgment
[Dkt. no. 434.3]
This Court will only discuss the
background that is relevant to the Merits Motion.
As noted in the 5/27/14 Summary Judgment Order, the
instant case arises from a traffic stop that led to Coles’s
arrest on April 24, 2007 (“the Subject Incident”).
2214046, at *1.
Coles, who was proceeding pro se at the time,
this Order refer to the portion of the document addressing the
The 5/27/14 Summary Judgment Order is available at 2014 WL
filed his original complaint on April 24, 2007 against Defendants
Joshua Eagle (“Eagle”) and Elton Robertson (“Robertson”), the
police officers who were involved in the traffic stop and arrest.
[Dkt. no. 1.]
Coles’s First Amended Complaint, filed
May 8, 2013, also includes the City as a defendant because Coles
alleges that Eagle and Robertson “were acting within the scope of
their employment with the Honolulu Police Department” (“HPD”).
[Dkt. no. 380 at ¶ 30.]
The First Amended Complaint asserts, inter alia, a
claim under 42 U.S.C. §§ 1981 and 1983 against the City, based on
policies, practices, and/or customs that Coles alleges violate
the Fourth and Fourteenth Amendments of the United States
Constitution (“Count II”), and a negligent training, supervision,
and retention claim against the City (“Count IV”).
•The City, through HPD, “had policies, practices, and/or
customs[:]” that tolerated HPD officers’ “use of unnecessary
or excessive force in the course of performing their
duties[;]” [id. at ¶ 35;] that tolerated their
“unnecessarily escalating situations resulting in the use of
unnecessary or excessive force[;]” [id. at ¶ 36;] and
pursuant to which “supervisors and command staff . . .
failed to adequately oversee and monitor officers’ use of
force” [id. at ¶ 37].
•The City, through HPD, “failed to adequately train, monitor, and
discipline” Eagle and Robertson, and that failure was a
proximate cause of the violation of Coles’s rights and the
damages he suffered. [Id. at ¶¶ 39-40.]
•The City’s “policies, practices and customs, and omissions”
violated Coles’s rights under the Fourth Amendment and the
Fourteenth Amendment, and the violations were a proximate
cause of the damages he suffered. [Id. at ¶¶ 41-42.]
Count IV alleges that the City breached its “duty to use
reasonable care in training, supervising and retaining” Eagle and
Robertson, and that the City’s negligence caused Coles to suffer
[Id. at ¶¶ 47-48.]
In the Merits Motion, the City argues that it is
entitled to summary judgment on Counts II and IV.
that the City has engaged in abusive discovery tactics ever since
Coles named it as a defendant.
Although he does not expressly
invoke Fed. R. Civ. P. 56(d), he argues that those tactics are
the reason why “the record does not yet contain the evidence”
necessary for Coles to defeat the Merits Motion.
[Mem. in Opp.
On June 24, 2014, Coles filed his Rule 37 Motion for
Contempt and Sanctions, and Alternatively to Compel Production of
Documents and for Sanctions (“Sanctions Motion”).
On September 3, 2014, the magistrate judge issued
an order granting the Sanctions Motion in part and denying it in
part (“9/3/14 Sanctions Order”).
[Dkt. no. 487.]
Sanctions Order requires the City to produce “all relevant and
responsive documents,” and to investigate and disclose the
Coles filed the Sanctions Motion, the memorandum in
support, and the declaration as separate docket entries.
particulars regarding “the deletion of certain documents and
[Id. at 2.]
The deadline for the City to
comply with the 9/3/14 Sanctions Order was September 30, 2014.
The magistrate judge denied Coles’s request for sanctions
without prejudice, but stated that Coles could file a separate
motion for sanctions after the City complies with the 9/3/14
Sanctions Order (“the Omnibus Sanctions Motion”).
[Id. at 3.]
Relief under Fed. R. Civ. P. 56(d)
Fed. R. Civ. P. 56(d) provides:
If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present
facts essential to justify its opposition, the
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or
declarations or to take discovery; or
(3) issue any other appropriate order.
This district court has stated:
Whether to deny a Rule 56(d) request for
further discovery by a party opposing summary
judgment is within the discretion of the district
court. Nidds v. Schindler Elevator Corp., 113
F.3d 912, 920–21 (9th Cir. 1996). To obtain a
continuance under Rule 56(d), the party opposing a
motion for summary judgment must make “(a) a
timely application which (b) specifically
identifies (c) relevant information, (d) where
there is some basis for believing that the
information sought actually exists.” Blough v.
Holland Realty, Inc, 574 F.3d 1084, 1091 n.5 (9th
Cir. 2009) (citation omitted).
“A party requesting a continuance pursuant to
Rule [56(d)] must identify by affidavit the
specific facts that further discovery would
reveal, and explain why those facts would preclude
summary judgment.” Tatum v. City & Cnty. of San
Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).
Moreover, “[t]he burden is on the party seeking
additional discovery to proffer sufficient facts
to show that the evidence sought exists.” Nidds,
113 F.3d at 921. The movant must also show
diligence in previously pursuing discovery. See
Pfingston v. Ronan Engineering Co., 284 F.3d 999,
1005 (9th Cir. 2002) (“The failure to conduct
discovery diligently is grounds for the denial of
a Rule 56(f) motion.”); Kocsis v. Delta Air Lines,
Inc., [963 F. Supp. 2d 1002, 1020] (D. Haw. Aug.
5, 2013) (“[T]he district court may deny further
discovery if the requesting party failed to pursue
discovery diligently in the past.”).
Nakagawa v. Cnty. of Maui, Civil Nos. 11–00130 DKW–BMK, 12–00569
DKW–BMK, 2014 WL 1213558, at *12 (D. Hawai`i Mar. 21, 2014) (some
alterations in Nakagawa).
Coles filed a Concise Statement of Material Facts in
Opposition to the Motions (“Coles’s CSOF”).
[Filed 9/8/14 (dkt.
Coles’s CSOF includes a declaration by his counsel,
David A. Perez, Esq. (“Perez Declaration”), but the Perez
Declaration does not establish the requirements for Rule 56(d)
relief as to the Merits Motion.
As previously noted, Coles’s
memorandum in opposition does not expressly request Rule 56(d)
The City filed its Separate Concise Statement of Facts in
Support of the Merits Motion on June 18, 2014 (“City’s Merits
CSOF”). [Dkt. no. 436.]
Although it does not condone Coles’s failure to comply
with the applicable rules, this Court will exercise its
discretion and construe Coles’s memorandum in opposition as a
request for Rule 56(d) relief.
This Court FINDS that, for the
reasons set forth in Coles’s Sanctions Motion and the magistrate
judge’s 9/3/14 Sanctions Order, Coles cannot present the
essential facts necessary for him to oppose the City’s Merits
This Court further FINDS that the appropriate relief
under Rule 56(d) is to DENY the Merits Motion WITHOUT PREJUDICE.
See Rule 56(d)(1).
The City may file another motion seeking summary
judgment on Counts II and IV of the First Amended Complaint after
the magistrate judge rules upon the Omnibus Sanctions Motion
anticipated in the 9/3/14 Sanctions Order.
If Plaintiff does not
file the Omnibus Sanctions Motion by the December 17, 2014
deadline for dispositive motions, [Fourth Amended Rule 16
Scheduling Order, filed 9/11/14 (dkt. no. 491), at ¶ 7,] this
Court will schedule a status conference to discuss the filing of
the City’s renewed summary judgment motion.
Coles’s Concise Statement of Facts
In order to provide guidance to Coles in anticipation
of the City’s filing of another motion for summary judgment on
the merits, this Court notes that Coles’s CSOF does not comply
with the requirements of Local Rule 56.1.
Local Rule 56.1(g) states: “For purposes of a motion
for summary judgment, material facts set forth in the moving
party’s concise statement will be deemed admitted unless
controverted by a separate concise statement of the opposing
Both the moving party’s concise statement and the
responding party’s concise statement are subject to, inter alia,
the following requirements:
When preparing the separate concise statement, a
party shall reference only the material facts that
are absolutely necessary for the court to
determine the limited issues presented in the
motion for summary judgment (and no others), and
each reference shall contain a citation to a
particular affidavit, deposition, or other
document that supports the party’s interpretation
of the material fact. . . . The concise statement
shall particularly identify the page and portion
of the page of the document referenced.
Local Rule LR56.1(c).
Coles makes a general objection that paragraphs 12
through 24 of the City’s Merits CSOF are “inaccurate, incomplete,
misleading, or without context.”
[Coles’s CSOF at pg. 2.]
However, Local Rule 56.1 requires that Coles identify the
specific portions of each document that supports his
interpretation of each of the City’s statements of fact.
general denial, such as the one Coles made in response to the
City’s Merits CSOF, is not sufficient.
This Court therefore
CAUTIONS Coles that, if the City files another motion for summary
judgment and his concise statement of facts does not comply with
Local Rule 56.1, this Court will deem the City’s concise
statement of facts admitted.
See Local Rule LR56.1(g).
On the basis of the foregoing, the City’s Motion for
Summary Judgment on Counts II and IV of First Amended Complaint,
filed June 18, 2014, is HEREBY DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 8, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
HARRY J. COLES VS. JOSHUA EAGLE, ET AL; CIVIL 09-00167 LEK-BMK;
ORDER DENYING WITHOUT PREJUDICE DEFENDANT CITY AND COUNTY OF
HONOLULU’S MOTION FOR SUMMARY JUDGMENT ON COUNTS II AND IV OF
FIRST AMENDED COMPLAINT
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