Dowkin et al v. Honolulu Police Department et al
Filing
185
ORDER GRANTING ALTERNATIVE RELIEF SOUGHT IN MOTION TO RECONSIDER DISMISSAL OF COUNT VIII (CIVIL CONSPIRACY) 169 ; 170 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/24/11. ("The court is, however, persuaded that it should allo w an amended civil conspiracy claim to be included in a proposed Third Amended Complaint. Plaintiffs are therefore given leave to do that.") (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
SHERMON DEAN DOWKIN, et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
HONOLULU POLICE DEPARTMENT;
)
CITY AND COUNTY OF HONOLULU; )
BOISSE CORREA, et al.,
)
)
)
Defendants.
_____________________________ )
CIV. NO. 10-00087 SOM/RLP
ORDER GRANTING ALTERNATIVE
RELIEF SOUGHT IN MOTION TO
RECONSIDER DISMISSAL OF COUNT
VIII (CIVIL CONSPIRACY)
ORDER GRANTING ALTERNATIVE RELIEF SOUGHT IN MOTION
TO RECONSIDER DISMISSAL OF COUNT VIII (CIVIL CONSPIRACY)
Plaintiffs move for reconsideration of a portion of the
Order Partially Granting and Partially Denying Defendants’ Motion
for Dismissal of Second Amended Complaint.
In particular,
Plaintiffs seek reinstatement of Count VIII, alleging civil
conspiracy, which this court dismissed as against all Defendants
except Lieutenant Dan Kwon and Sergeant Wayne Fernandez.
In the
alternative, Plaintiffs seek leave to include an amended Count
VIII in a proposed Third Amended Complaint.
The court declines
to reinstate the portion of Count VIII that was dismissed but
gives Plaintiffs leave to include an amended Count VIII in a
proposed Third Amended Complaint.
Local Rule 60.1 provides that motions to reconsider
interlocutory orders may be brought only on the ground of (a) the
discovery of new material facts no previously available, (b) an
intervening change in the law, or © a manifest error of law or
fact.
Plaintiffs’ reconsideration motion asserts a manifest
error of law or fact.
Under Local Rule 60.1, a motion asserting
that ground must be filed and served “not more than fourteen (14)
days after the court’s written order is filed.”
Plaintiffs’
reconsideration motion was untimely, having been filed on
September 21, 2011, more than fourteen days after the court filed
its order on September 2, 2011.
The court nevertheless, in the
interest of justice, considers the arguments Plaintiffs raise.
In dismissing part of Count VIII, the court noted that
it had earlier rejected Defendants’ argument that the civil
conspiracy claim pled in the First Amended Complaint failed to
state a claim.
After Plaintiffs filed a Second Amended Complaint
that also included a civil conspiracy claim, Defendants sought
dismissal of the reasserted civil conspiracy count, arguing that
it was unclear what each Defendant other than Kwon and Fernandez
had done in the nature of conspiring.
In dismissing the civil
conspiracy claim against all Defendants other than Kwon and
Fernandez, the court said, “As Plaintiffs do not address this
argument in their Opposition, they appear to have no objection.
On that ground, the court dismisses Count VIII except with
respect to Kwon and Fernandez.”
Plaintiffs seek reconsideration on the ground that they
did indeed object to dismissal of the civil conspiracy count.
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They point out that their memorandum opposing the motion to
dismiss contended that Defendants were improperly seeking
reconsideration of the court’s previous ruling declining to
dismiss the civil conspiracy claim.
The reconsideration motion
also notes that Plaintiffs’ opposition memorandum stated, “As to
Defendants’ argument that only Defendants Kwon and Fernandez
should be subject to this cause of action, there are specific
factual allegations in the SAC against all individual Defendants.
See Second Amended Complaint.”
To the extent Plaintiffs are seeking reconsideration on
the ground that their memorandum in opposition to the motion to
dismiss did indeed argue that Defendants were improperly seeking
reconsideration of the court’s earlier refusal to dismiss the
civil conspiracy claim asserted in the First Amended Complaint,
the court is not persuaded.
Plaintiffs’ bald allegation of
impropriety is unaccompanied by any analysis or citation.
allegation is tantamount to a lack of opposition.
A bald
An opposition
memorandum consisting only of the assertion that a motion is
improper does not require the court to try to discern any
impropriety that might be gleaned from the record.
Moreover, the assertion that Defendants were somehow
improperly seeking reconsideration is not only unsupported, it is
inaccurate.
In moving to dismiss the civil conspiracy claim
asserted in the Second Amended Complaint, Defendants took a new
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approach.
They did not seek dismissal of the civil conspiracy
claim in its entirety on the ground that it failed to state a
claim, which is what they argued in seeking dismissal of the
civil conspiracy claim in the First Amended Complaint.
Instead,
they did not challenge the civil conspiracy claim as asserted
against Kwon and Fernandez in the Second Amended Complaint.
They
argued, however, that other Defendants could not determine what
specific acts were being alleged against them in the nature of
civil conspiracy.
This was a new argument, not a repetition of
an already rejected argument.
There was no impropriety in
seeking dismissal on a new ground.
Similarly unhelpful to the court was Plaintiffs’
assertion in their opposition to the motion to dismiss that
“there are specific factual allegations in the SAC against all
individual Defendants.
See Second Amended Complaint.”
Plaintiffs appear to have expected the court to comb through the
Second Amended Complaint to find specific factual allegations
relating to each Defendant’s participation in the alleged civil
conspiracy.
While making the court do more work on a motion than
a claimant is willing to do is extremely convenient for the
claimant, that is not the way tasks are divided between counsel
and the court.
It is counsel’s job to point the court to
portions of the record supporting counsel’s arguments.
The
portion of the order saying that Plaintiffs did not address
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Defendants’ argument is only a slight overstatement.
Once again,
Plaintiffs made a sweeping statement that, given the lack of
analysis or specific citations, was nearly tantamount to ignoring
the argument.
However, this court does concede that it was incorrect
in saying in its order that Plaintiffs appeared to have no
objection to dismissal of the civil conspiracy claim.
As thin as
the objection was, Plaintiffs were not agreeing to dismissal of
the civil conspiracy claim, and the order should not have
dismissed any part of the civil conspiracy claim on the ground
that Plaintiffs were not objecting.
Rather, the dismissal should
have been grounded on Plaintiffs’ failure to explain or support
the objection.
An unadorned statement of objection is simply not
enough to defeat a rational argument for dismissal.
Therefore,
notwithstanding the concession it makes in this order, the court
vacate the dismissal itself or reinstate the civil conspiracy
claim.
The court is, however, persuaded that it should allow
an amended civil conspiracy claim to be included in a proposed
Third Amended Complaint.
do that.
Plaintiffs are therefore given leave to
The court cautions Plaintiffs that any new civil
conspiracy claim should clearly allege what each Defendant named
in the claim did that makes that Defendant liable for civil
conspiracy.
The court is concerned from the argument in the
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reconsideration motion that Plaintiffs may believe that being in
a chain of command is sufficient to make someone liable for civil
conspiracy.
That is not the law.
an agreement.
The essence of a conspiracy is
Being in a chain of command is not, without more,
an agreement at all.
It is not by itself evidence that someone
has knowingly joined or agreed to be part of a conspiracy.
can civil conspiracy rest on vicarious liability.
Nor
Any new civil
conspiracy claim should not assume that, if one or more
individuals commit some wrongful act, all persons in the chain of
command with authority over the wrongful actors necessarily must
be conspirators.
Each Defendant sued for civil conspiracy must
have allegedly engaged in some specific wrongful conduct in
furtherance of the agreement.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 24, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
SHERMON DEAN DOWKIN, et
AND COUNTY OF HONOLULU;
SOM/RLP; ORDER GRANTING
RECONSIDER DISMISSAL OF
al. v. HONOLULU POLICE DEPARTMENT; CITY
BOISSE CORREA, et al.; CIV. NO. 10-00087
ALTERNATIVE RELIEF SOUGHT IN MOTION TO
COUNT VIII (CIVIL CONSPIRACY)
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