Dowkin et al v. Honolulu Police Department et al
Filing
338
ORDER (1) DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A FOURTH AMENDED COMPLAINT; (2) DENYING PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT THEIR REPLY; (3) DENYING IN PART AND TAKING UNDER ADVISEMENT IN PART PLAINTIFFS' MOTION TO MODIFY RULE 16 SCHEDULING ORDER; AND (4) FOR PLAINTIFFS' COUNSEL TO SHOW CAUSE WHY THEY DID NOT VIOLATE FRCP 11(b) re 283 ; 318 ; 319 ; 329 - Signed by JUDGE RICHARD L. PUGLISI on 7/3/12. -- " In accordance with the foregoing, the Court HEREBY ORDERS as follows: (1) Plaintiffs' Motion for Leave to File a Fourth Amended Complaint, filed on May 10, 2012, is DENIED. (2) Plaintiffs' Motion for Leave to Supplement their Reply to City Defendants' Memorandum in Op position to Plaintiffs' Motion for Leave to File a Fourth Amended Complaint, filed on June 28, 2012, is DENIED. (3) Plaintiffs' Motion to Modify Rule 16 Scheduling Order, filed on June 20, 2012, is DENIED IN PART AND TAKEN UNDER ADVISEMENT IN PART. Plaintiffs' request to extend the December 30, 2011 deadline to amend pleadings is DENIED. Plaintiffs' request to extend the deadline to file a response to Defendants' expert witness reports is TAKEN UNDER ADVISEMENT. (4) Plai ntiffs' counsel is ORDERED TO SHOW CAUSE why they have not violated Fed. R. Civ. P. 11(b) by filing Plaintiffs' Motion for Leave to File a Fourth Amended Complaint. Plaintiffs' counsel shall appear at a show cause hearing on August 2, 2012 at 10:00 a.m. before the undersigned Magistrate Judge, and may submit a memorandum for the Courts consideration by no later than July 19, 2012." ( Show Cause Hearing set for 8/2/2012 10:00 AM before JUDGE RICHARD L. PUGLISI. Motions termina ted: 329 MOTION for Leave to File filed by Cassandra Bennett-Bagorio, Frederico Delgadillo Martinez, Jr., Shermon Dean Dowkin, 283 MOTION for Leave to File filed by Cassandra Bennett-Bagorio, Frederico Delgadillo Martinez, Jr., Shermon Dean Dowki n.) (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
SERGEANT SHERMON DEAN DOWKIN,
OFFICER FEDERICO DELGADILLO
MARTINEZ, JR., and OFFICER
CASSANDRA BENNETT-BAGORIO,
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
HONOLULU POLICE DEPARTMENT,
)
THE CITY AND COUNTY OF
)
HONOLULU, FORMER CHIEF OF
)
POLICE BOISSE CORREA, CURRENT )
CHIEF OF POLICE LOUIS
)
KEALOHA, ASSISTANT CHIEF
)
MICHAEL TAMASHIRO, MAJOR
)
KENNETH SIMMONS, MAJOR JOHN
)
MCENTIRE, CAPTAIN NYLE
)
DOLERA, LIEUTENANT MICHAEL
)
SERRAO, LIEUTENANT DAN KWON, )
LIEUTENANT WILLIAM AXT,
)
SERGEANT WAYNE FERNANDEZ,
)
SERGEANT RALSTAN TANAKA,
)
OFFICER COLBY KASHIMOTO, PAT )
AH LOO, and DOES 1-100,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 10-00087 SOM-RLP
ORDER (1) DENYING PLAINTIFFS’
MOTION FOR LEAVE TO FILE A
FOURTH AMENDED COMPLAINT; (2)
DENYING PLAINTIFFS’ MOTION FOR
LEAVE TO SUPPLEMENT THEIR
REPLY; (3) DENYING IN PART AND
TAKING UNDER ADVISEMENT IN PART
PLAINTIFFS’ MOTION TO MODIFY
RULE 16 SCHEDULING ORDER; AND
(4) FOR PLAINTIFFS’ COUNSEL TO
SHOW CAUSE WHY THEY DID NOT
VIOLATE FRCP 11(b)
ORDER (1) DENYING PLAINTIFFS’ MOTION FOR LEAVE TO FILE A FOURTH
AMENDED COMPLAINT; (2) DENYING PLAINTIFFS’ MOTION FOR LEAVE TO
SUPPLEMENT THEIR REPLY; (3) DENYING IN PART AND TAKING UNDER
ADVISEMENT IN PART PLAINTIFFS’ MOTION TO MODIFY RULE 16
SCHEDULING ORDER; AND (4) FOR PLAINTIFFS’ COUNSEL TO SHOW CAUSE
WHY THEY DID NOT VIOLATE FRCP 11(b)
Before the Court is Plaintiffs Shermon Dean Dowkin,
Federico Delgadillo Martinez, Jr., and Cassandra BennettBagorio’s (collectively “Plaintiffs”) Motion for Leave to File a
1
Fourth Amended Complaint, filed on May 10, 2012 (“Motion”).
ECF No. 283.
See
Plaintiffs seek leave to file a Fourth Amended
Complaint (“FAC”), in the form proposed in Exhibit A to their
Motion.
On May 24, 2012, Defendants City and County of Honolulu
(“City”), Boisse Correa, Louis Kealoha, Michael Tamashiro,
Kenneth Simmons, John McEntire, Nyle Dolera, Michael Serrao, Dan
Kwon, William Axt, Wayne Fernandez, Ralston Tanaka, Colby
Kashimoto, and Pat Ah Loo (collectively “Defendants”) filed their
Memorandum in Opposition to Plaintiffs’ Motion, and on June 7,
2012, Plaintiffs filed a Reply to Defendants’ Opposition.
See
ECF Nos. 288, 303.
On May 10, 2012, the Court found this matter suitable
for disposition without a hearing pursuant to LR 7.2(d) of the
Local Rules of Practice for the United States District Court for
the District of Hawaii.
See ECF No. 284.
Based on the
following, and after careful consideration of the Motion, the
supporting and opposing memoranda, the exhibits attached thereto,
and the record established in this action, the Court HEREBY
DENIES Plaintiffs’ Motion and ORDERS Plaintiff’s counsel to SHOW
CAUSE why they did not violate Rule 11(b) of the Federal Rules of
Civil Procedure (“FRCP”).
BACKGROUND
On February 22, 2010, three Honolulu police officers
brought this action against their employer, the Honolulu Police
2
Department (“HPD”), and thirteen supervisors, officers, and HPD
personnel for alleged race and gender discrimination,
retaliation, and disparate treatment.
Dowkin, who allegedly is
the only African-American supervisor in HPD’s Regional Parol
Bureau District 4, First Watch (“District 4”), and Delgadillo,
who is allegedly the only Mexican-American officer in District 4,
claim that, between 2003 and 2008, their supervisors and fellow
officers gave direct orders and conspired not to provide them
protective “cover” or “backup” when Dowkin and Delgadillo
arrested persons in the field.
Dowkin and Delgadillo’s requests
for assistance were allegedly “routinely ignored,” as Defendants
were purportedly “motivated by racial prejudice.”
Dowkin and
Delgadillo also allege that they were demoted to “junior officer
status” after returning to their unit from a special duty
assignment.
On August 7, 2008, Dowkin, on behalf of himself and
Delgadillo, delivered a written complaint, alleging race
discrimination by HPD to Defendant Simmons, Commander of District
4.
After Dowkin spoke with Defendant Simmons about the disparate
treatment, Defendant Simmons allegedly took no action in response
to the complaint.
Plaintiffs allege that, although the filing of
the complaint was protected activity, retaliation immediately
commenced.
3
On October 14, 2008, Bennett-Bagorio was allegedly
summoned by HPD Human Resources to provide testimony regarding
Dowkin and Delgadillo’s race discrimination complaint.
Bennett-
Bagorio’s testimony allegedly supported Dowkin and Delgadillo’s
claims of race discrimination and purported failure to provide
protective cover on traffic stops.
Bennett-Bagorio alleges that,
as a result of her testimony and her gender, Defendants
retaliated against her.
Plaintiffs’ First Amended Complaint, filed on March 30,
2010, alleged the following fifteen causes of action: (1)
violations of the First, Fifth, and Fourteenth Amendments of
United States Constitution; (2) violations of Title VII of the
Civil Rights Act of 1964; (3) violations of 42 U.S.C. § 1981; (4)
violations of Title VI of the Civil Rights Act of 1964; (5)
violations of the Hawaii State Constitution and Hawaii civil
rights law; (6) reckless endangerment; (7) hate crimes; (8)
negligent training, supervision, retention and/or failure to
report and investigate; (9) intentional infliction of emotional
distress (IIED); (10) negligent infliction of emotional distress
(NIED); (11) bad faith breach of employment contracts; (12)
defamation; (13) violations of 42 U.S.C. § 1983; (14) civil
conspiracy; and (15) injunctive relief.
See ECF No. 5.
On November 30, 2010, the Court issued an Order
Partially Granting and Partially Denying Defendants’ Motion for
4
Partial Dismissal of First Amended Complaint.
See ECF No. 43.
In the Order, the Court dismissed Plaintiffs’ Count III, XI, and
XII against all Defendants.
The Court dismissed Count XIII
against the City, but not as to the individual Defendants.
Count
X was dismissed to the extent it asserted claims by Delgadillo
and Bennett-Bagorio, but not to the extent it asserted claims by
Dowkin.
Count VIII was dismissed against all Defendants except
the City, Lieutenant Kwon, and Sergeant Fernandez.
Plaintiffs withdrew Count I, VI, and VII.
The
As a result, the
entirety Count II, IV, V, IX, and XIV and portions of Claim XIII,
X, and XIII remained for adjudication.
On June 24, 2011, after obtaining leave of this Court
to do so, Plaintiffs filed their Second Amended Complaint
(“SAC”).
See ECF No. 139.
In granting leave, the Court
cautioned Plaintiffs to be “judicious” in their determination of
whether to file future amended complaints.
See ECF No. 138 at 8.
The SAC added allegations in support of Dowkin and BennettBagorio’s NIED claim, and asserted nine causes of action: (1)
Title VII; (2) Title VI; (3) state constitution and civil rights;
(4) negligent training, supervision, retention and/or failure to
report and investigate; (5) IIED; (6) NIED; (7) 42 U.S.C. § 1983;
(8) civil conspiracy; and (9) injunctive relief.
On September 2, 2011, the Court issued an Order
Partially Granting and Partially Denying Defendants’ Motion for
5
Dismissal of Second Amended Complaint.
See ECF No. 167.
The
Order dismissed the Hawaii Revised Statutes (“HRS”) §§ 378-2(1)
and 378-2(2) claims in Count III against all Defendants, the
negligent supervision claim in Count IV against all Defendants,
the negligent training claim in Count IV against Kashimoto, Count
VII in its entirety, the conspiracy claim in Count VIII against
all Defendants except Kwon and Fernandez, and the injunctive
relief claim in Count IX.
The Order also cautioned Plaintiffs
regarding the filing of a Third Amended Complaint (“TAC”):
If Plaintiffs move for leave to file a Third
Amended Complaint, Plaintiffs should avoid the
deficiencies in the Second Amended Complaint.
The Second Amended Complaint often fails to
distinguish among Defendants as to alleged
causes of action.
Any further Amended
Complaint must clearly state how each named
Defendant has injured which Plaintiff.
In
other words, Plaintiffs should explain, in
clear and concise allegations, what each
Defendant did and how those specific facts
create a plausible claim for relief.
A
complaint
that
fails
to
explain
which
allegations are relevant to which Defendant is
confusing. This, in turn, “impose[s] unfair
burdens on litigants and judges” because it
requires both to waste time formulating their
own best guesses of what the Plaintiffs may or
may not have meant to assert, risking
substantial confusion if their understanding
is not equivalent to Plaintiffs’.
Id. at 35-36 (citing McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th
Cir. 1996)).
On September 28, 2011, Plaintiffs moved for
reconsideration of the Court’s September 2, 2011 Order.
6
See ECF
No. 169.
Plaintiffs sought reinstatement of their Count XIII
(civil conspiracy), which had been dismissed against all
Defendants except Kwon and Fernandez.
On October 27, 2011, the
Court issued its Amended Order Granting Alternative Relief Sought
in Motion to Reconsider Dismissal of Count VIII (Civil
Conspiracy).
See ECF No. 186.
In the Order, the Court gave
Plaintiffs leave to include an amended civil conspiracy claim in
a proposed TAC.
The Court further cautioned Plaintiffs:
[A]ny 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 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. The essence of a conspiracy is
an agreement. Being in the 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. Nor can civil conspiracy rest on
vicarious liability. 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.
Id. at 5-6.
On January 17, 2012, after again obtaining leave to do
so, Plaintiffs’ filed their TAC.
See ECF No. 221.
leave, the Court specifically noted:
7
In granting
The Court again cautions Plaintiffs to be
judicious in their determination of whether to
seek leave to file future amended complaints.
As previously stated by the Court in its Order
Granting Plaintiffs’ Motion for Leave to File
a Second Amended Complaint, “a court’s
discretion to deny leave to amend is
particularly broad where the court has already
given the plaintiff an opportunity to amend
his or her complaint.”
See ECF No. 138
(citing Fid. Fin. Corp. v. Home Loan Bank of
S.F., 792 F.2d 1432, 1438 (9th Cir. 1986)).
ECF No. 220, at 19 n.2.
The TAC asserts eight causes of action:
(1) Title VII; (2) Title VI; (3) violations of the Hawaii Civil
Rights Law, HRS § 378-2(3); (4) negligent training, retention
and/or failure to report and investigate; (5) IIED; (6) NIED; (7)
conspiracy to interfere with civil rights (42 U.S.C. § 1985); and
(8) civil conspiracy.
from the SAC.
The TAC includes three primary changes
First, Plaintiffs added a claim for IIED by
Bennett-Bagorio against Fernandez based upon an alleged visit he
made to HPD’s Central Receiving on June 2, 2011.
Second,
Plaintiffs provided more specific and detailed allegations in
support of their civil conspiracy claim.
Finally, Plaintiffs
included a new cause of action for conspiracy to interfere with
civil rights.
On February 21, 2102, Defendants filed their Motion for
Partial Dismissal of Plaintiffs’ TAC, which seeks, inter alia,
dismissal of Plaintiffs’ conspiracy claims against Defendants.
See ECF No. 237.
The motion was initially set for hearing on May
8
14, 2012, but the hearing was vacated until a decision could be
made on the instant Motion.
See ECF Nos. 241, 281.
Through the instant Motion, Plaintiffs seek leave to
file a Fourth Amended Complaint (“FAC”), in the form proposed in
Exhibit A to their Motion.
The FAC asserts twelve causes of
action: (1) Title VII; (2) Title VI; (3) violations of the Hawaii
Civil Rights Law; (4) general negligence, including negligent
training and supervision; (5) IIED; (6) NIED; (7) conspiracy to
interfere with civil rights; (8) civil conspiracy against rights
and to tamper with witnesses; (9) conspiracy against rights (18
U.S.C. § 241); (10) tampering with a witness; (11) 42 U.S.C. §
1983; and (12) neglect to prevent conspiracy.
three primary changes from the TAC.
The FAC includes
First, Plaintiffs’ added
Deputy Chief Dave Kajihiro and Denise Tsukayama as Defendants.
Second, Plaintiffs included additional allegations (¶¶ 84-125)
supposedly based upon facts revealed by Defendants after
Plaintiffs requested leave of court to file their TAC, as well as
37 exhibits, purportedly confirming Plaintiffs’ conspiracy
claims.
Finally, Plaintiffs brought four new claims against
Defendants.
LEGAL STANDARD
The parties disagree upon which legal standard the
Court should employ in evaluating Plaintiffs’ Motion.
The
Court’s Amended Rule 16 Scheduling Order, filed on November 8,
9
2011, states that all motions to amend pleadings shall be filed
by December 30, 2011.
See ECF No. 192, at 2.
Because Plaintiffs
failed to timely file their Motion, Defendants contend that the
“good cause” standard set forth in FRCP 16(b)(4) should apply.
This rule provides that a Rule 16 scheduling order may be
modified “only for good cause and with the judge’s consent.”
Fed. R. Civ. P. 16(b)(4).
When a party seeks to amend a pleading
after the deadline established by the scheduling order, the
party’s right to amend is governed by the “good cause” standard,
rather than the more liberal standard of Rule 15.
See Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992)
(“Once the district court had filed a pretrial scheduling order
pursuant to [Rule] 16 which established a timetable for amending
pleadings that rule’s standard’s controlled.”).
Plaintiffs, on the other hand, argue that FRCP
15(a)(2), which provides that the Court should “freely give leave
[to amend pleadings] when justice so requires,” should control.
Fed. R. Civ. P. 15(a)(2).
This rule is construed liberally,
under the sound discretion of the Court, in favor of permitting
an amended pleading absent a showing of prejudice to the
defendant.
See Eminence Capital LLC v. Aspeon, Inc., 316 F.3d
1048, 1051 (9th Cir. 2003).
Indeed, “[i]f the facts or
circumstances relied upon by a plaintiff may be a proper subject
10
of relief, he ought to be afforded an opportunity to test his
claims on the merits.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
Perhaps recognizing that their untimely filing would
result in the application of the “good cause” standard,
Plaintiffs filed a Motion to Modify Rule 16 Scheduling Order on
June 20, 2012 (“Motion to Modify”).
See ECF Nos. 318, 319.1
In
the Motion to Modify, Plaintiffs absurdly claim that the instant
Motion was timely because the Court’s most recent Rule 16
Scheduling Order, dated February 29, 2012, see ECF No. 245, did
not provide for the December 30, 2011 deadline for amending
pleadings.
To the contrary, the February 29, 2012 Scheduling
Order stated that the deadline for motions to amend pleadings was
“N/A” because the December 30, 2011 deadline had already passed
when the February 29, 2012 Scheduling Order was filed.
at 1-2.
See id.
It did not mean that the December 30, 2011 deadline, as
set forth in the November 8, 2011 Scheduling Order, was no longer
valid.2
Therefore, to the extent that Plaintiffs’ Motion to
1
Plaintiffs, intending to file a Notice of Motion and a
separate Motion with memorandum and declaration attached,
mistakenly filed two identical motions to modify. See ECF No.
336. Accordingly, the Court will treat these motions as a single
motion.
2
The Court notes that it is a common practice for
magistrate judges in this district to indicate as “N/A” deadlines
that have already expired when amended Rule 16 scheduling orders
are filed.
11
Modify is based on the claim that a December 30, 2011 deadline
for amending pleadings was not provided, their motion is DENIED.3
In their reply to the instant Motion, Plaintiffs also
contend that Defendants are “estopped” from requiring “good
cause” because many of the allegedly relevant documents were not
produced until December 16, 18, and 22, 2011, or within two weeks
of the December 30, 2011 deadline to amend pleadings.
The record
shows, however, that Plaintiffs did not file the instant Motion
until May 10, 2012, or nearly five months after they received the
documents from Defendants.4
Plaintiffs fail to provide any reason
why they delayed for such a lengthy period.
Therefore, the Court
finds that the “good cause” standard of FRCP 16(b)(4) applies
here.
ANALYSIS
A.
Motion to Supplement Reply
As an initial matter, on June 28, 2012, Plaintiffs
filed a Motion for Leave to Supplement Their Reply to City
Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for
3
The remainder of Plaintiffs’ Motion to Modify,
specifically Plaintiffs’ request to extend the deadline to file a
response to the Defendants’ expert witness reports, is taken
under advisement.
4
The Court first received a copy of Plaintiffs’ Motion, in
conjunction with Plaintiffs’ Second Ex Parte Motion to File Under
Seal Plaintiffs’ Motion for Leave to File a Fourth Amended
Complaint, But Only if the Court Deems Such to be Necessary, on
May 2, 2012. See ECF No. 274.
12
Leave to File a Fourth Amended Complaint (“Motion to
Supplement”).5
See ECF No. 329.
In their Motion to Supplement,
Plaintiffs contend that, “[s]ubsequent to filing the Reply,
undersigned counsel was provided with additional documents
relating to the HPD Administrative Review Board’s processing of
Plaintiff Delgadillo’s race discrimination complaint against
Defendant Kwon, under cover of defense counsel’s letter dated
June 1, 2012.”
Id. at 2.
The record, indicates, however, that
Plaintiffs’ filed their Reply on June 7, 2012, or several days
after receiving defense counsel’s letter.
Moreover, the Court
finds that supplemental briefing regarding these documents is
unnecessary to decide the instant Motion.
Therefore, Plaintiffs’
Motion to Supplement is DENIED.
B.
Violation of FRCP 8
FRCP 8(a)(2) provides, “A pleading that states a claim
for relief must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2) (emphasis added).
Fed. R. Civ. P.
“The theory of Rule 8(a), and of the
federal rules in general, is notice pleading.”
652 F.3d 1202, 1212 (9th Cir. 2011).
5
Starr v. Baca,
Although typically
The Motion to Supplement was originally lodged with the
Court on June 19, 2012 as part of Plaintiffs’ Ex Parte Motion for
Ruling on Whether to File Under Seal Plaintiffs’ Motion for Leave
to Supplement Their Reply to City Defendants’ Memorandum in
Opposition to Plaintiffs’ Motion for Leave to File a Fourth
Amended Complaint. See ECF No. 311.
13
verbosity or length alone is not a basis for dismissing a
complaint, the Ninth Circuit has “never held . . . that a
pleading may be of unlimited length and opacity.”
Cafasso v.
Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011).
In fact, Ninth Circuit case law clearly instructs
otherwise.
See, e.g., id. (district court was “well within its
discretion” to deny leave to amend under liberal Rule 15 standard
“considering the proposed pleading’s extraordinary prolixity”);
McHenry v. Renne, 84 F.3d 1172, 1177-80 (9th Cir. 1996)
(upholding Rule 8(a) dismissal of a complaint that was
“argumentative, prolix, replete with redundancy, and largely
irrelevant”); Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th
Cir. 1985) (upholding a Rule 8(a) dismissal of a complaint that
“exceeded 70 pages in length, [and was] confusing and
conclusory”); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671,
674 (9th Cir. 1981) (Rule 8(a) is violated when a complaint is
excessively “verbose, confusing and almost entirely conclusory”);
Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir. 1980)
(affirming Rule 8(a) dismissal of “confusing, distracting,
ambiguous, and unintelligible pleadings”).
Indeed, while the
Court recognizes that, in a few recent cases, the Supreme Court
has applied what appears to be a higher pleading standard under
Rule 8(a), see, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009), in subsequent
14
cases, the Ninth Circuit has upheld notice pleading and the
denial of leave to amend due to the prolixity of a proposed
amended complaint.
See Starr v. Baca, 652 F.3d at 1212; Cafasso,
637 F.3d at 1058.
Here, in partially dismissing Plaintiffs’ SAC, the
Court already cautioned Plaintiffs that their SAC was “unduly
long and confusing and in some instances reiterates claims that
were withdrawn or dismissed as defective without curing the
identified defects.”
ECF No. 167, at 8.
Nevertheless,
Plaintiffs’ proposed FAC consists of 134 pages and attaches 37
exhibits spanning an additional 213 pages, for a total filing of
347 pages.
See ECF No. 283-1 to 283-39.
Plaintiffs’ proposed
FAC is neither short nor plain and again is unduly long and
confusing, in addition to being argumentative, largely
irrelevant, and conclusory.
Further, Plaintiffs have not argued that a heightened
pleading standard, such as for actions alleging fraud or mistake
pursuant to FRCP 9(b), applies to any of their claims.
Rather,
Plaintiffs appear to be under the mistaken belief that the
Court’s rejection of their “chain of command” theory as the basis
for Plaintiffs’ civil conspiracy claim, see ECF No. 186, somehow
“requires a detailed factual explanation, supported by attachment
of actual documentation, in order to make the claims
comprehensible and no longer impeachable.”
15
Pls.’ Reply 18.
That
is simply not the case.
As the Chief Judge correctly pointed
out, “Each Defendant sued for civil conspiracy must have
allegedly engaged in some specific wrongful conduct in
furtherance of the agreement.”
ECF No. 186, at 6.
Nothing in
the Court’s order required Plaintiffs to attach actual
documentation of the specific wrongful conduct alleged or to
engage in a 134-page-long explanation of said conduct.
Finally, a 347-page pleading “prejudices the opposing
party and may show bad faith of the movant, both valid grounds to
deny leave to amend.”
Cafasso, 637 F.3d at 1059.
Rather than
straightforwardly stating their claims and allegations,
Plaintiffs would burden Defendants with the onerous task of
combing through a 347-page pleading just to prepare an answer
that admits or denies such allegations, and to determine what
claims and allegations must be defended or otherwise litigated.
See id. (quoting McHenry, 84 F.3d at 1178) (“[T]he very prolixity
of the complaint ma[kes] it difficult to determine just what
circumstances were supposed to have given rise to the various
causes of action.”).
Unlike the 81-page complaint at issue in
Hearns, which was written with sufficient organization and
clarity such that Defendants would have “no difficulty responding
to the claims,” id. at 530 F.3d 1132, the Plaintiffs’ proposed
FAC is more than four times longer than the one in Hearns and
would be quite challenging for Defendants to answer.
16
Accordingly, the Court finds that Plaintiffs’ proposed FAC
violates FRCP 8(a) and concludes that leave to amend should be
denied.
C.
Failure to Demonstrate “Good Cause”
The good cause inquiry focuses on the diligence of the
party seeking to modify the scheduling order.
Zivkovic v. S.
Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).
If the
party seeking the modification “was not diligent, the inquiry
should end” and the motion to modify should not be granted.
(quoting Johnson, 975 F.2d at 609).
Id.
However, the pretrial
schedule may be modified “if it cannot reasonably be met despite
the diligence of the party seeking the extension.”
Fed. R. Civ. P. 16 advisory committee’s note.
Id.; see also
In addition to a
lack of diligence, prejudice to the party opposing the
modification may supply another reason to deny leave to amend the
scheduling order.
Johnson, 975 F.2d at 609.
Plaintiffs have failed to demonstrate that good cause
exists to permit them to file their proposed FAC.
First,
Plaintiffs were not diligent in moving to amend the scheduling
order.
Plaintiffs seek leave to amend based upon purportedly
“new facts” discovered in the “late December 2011 document
production and the depositions in March 2012.”
Pls.’ Reply 19.
However, as discussed above, Plaintiffs waited until May 10,
2012, or nearly five months after they received the documents
17
from Defendants, to file the instant Motion and fail to provide
any reason for the lengthy delay.
As a result, the Court finds
that Plaintiffs were not diligent in moving to file their
proposed FAC.
See JJCO, Inc. v. Isuzu Motors Am., Inc., Civ. No.
08-00419 SOM-LEK, 2009 WL 3818247, at *5 (D. Haw. Nov. 12, 2009)
(affirming magistrate judge’s finding that plaintiff had unduly
delayed under liberal Rule 15 standard when it waited five months
to file its motion to amend complaint).
Even though the good cause inquiry should end with the
Court’s finding that Plaintiffs were not diligent, in light of
Plaintiffs’ numerous motions and request for supplemental
briefing regarding its proposed FAC, the Court further finds that
permitting Plaintiffs to file their long and confusing proposed
FAC at this late juncture would unduly prejudice Defendants.
Defendants have already filed motions to dismiss Plaintiffs’
First Amended Complaint, SAC, and TAC, as well as answers to
Plaintiffs’ First Amended Complaint and SAC.
92, 145, 178, 237.
See ECF Nos. 21,
In fact, briefing was already complete and
the hearing had already been set on Defendants’ pending motion to
dismiss Plaintiffs’ TAC before the instant Motion was filed.
Additionally, the proposed FAC seeks to include two new
Defendants and four new causes of action.
It would be unfair to
Defendants to have to investigate all of these changes and to
18
prepare yet another motion for partial dismissal and answer to
Plaintiffs’ 347-page proposed FAC.
Finally, “[t]he district court’s discretion to deny
leave to amend is particularly broad where plaintiff has
previously amended the complaint.”
Cafasso, 637 F.3d at 1058
(quoting Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160
(9th Cir. 1989)).
The Court has already granted Plaintiffs leave
to file their SAC and TAC.
On both occasions, the Court also
cautioned Plaintiff to be “judicious in their determination of
whether to seek leave to file future amended complaints.”
Nos. 138 at 8, 220 at 19 n.2.
ECF
For these reasons, the Court
elects to exercise its broad discretion in denying Plaintiffs
leave to file their proposed FAC.
D.
Order to Show Cause
FRCP 11(b) requires that attorneys present arguments
that are not improper or frivolous:
By presenting to the court a pleading, written
motion, or other paper - whether by signing,
filing, submitting, or later advocating it an attorney or unrepresented party certifies
that to the best of the person’s knowledge,
information, and belief, formed after an
inquiry reasonable under the circumstances:
(1)
it is not being presented for any
improper purpose, such as to harass,
cause unnecessary delay, or
needlessly increase the cost of
litigation;
(2)
the claims, defenses, and other
legal contentions are warranted by
19
existing law or by a nonfrivolous
argument for extending, modifying,
or reversing existing law or for
establishing new law . . .
Fed. R. Civ. P. 11(b).
In determining whether a party has violated FRCP 11,
the court applies a reasonableness standard.
Ins., 987 F.2d 622, 628 (9th Cir. 1993).
bad faith is not required.
Yagman v. Republic
A showing of subjective
See Smith v. Ricks, 31 F.3d 1478,
1488 (9th Cir. 1994) (noting that sanctions cannot be avoided by
the “empty head, pure heart” defense); Zaldivar v. City of L.A.,
780 F.2d 823, 831 (9th Cir. 1986), overruled on other grounds by
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) (stating
that the certification requirements of Rule 11 are violated “if
the paper filed . . . is frivolous, legally unreasonable or
without factual foundation, even though . . . not filed in
subjective bad faith”).
The court may, on its own, “order an attorney, law
firm, or party to show cause why conduct specifically described
in the order has not violated Rule 11(b).”
11(c)(3).
Fed. R. Civ. P.
If, after notice and a reasonable opportunity to
respond, the court determines that FRCP 11(b) has been violated,
the court is permitted to impose sanctions, which may include
monetary sanctions to the court or an order to pay reasonable
attorneys’ fees to the opposing party.
20
Fed. R.
Civ. P. 11(c).
Here, the Court has found that Plaintiffs violated the
“short and plain statement” requirement of FRCP 8(a), were not
diligent by waiting nearly five months and until briefing for
Defendants’ pending motion to dismiss Plaintiffs’ TAC had closed
before moving for leave to file their FAC, and blatantly
disregarded the Court’s multiple warnings to be judicious in
their determination of whether to seek leave to file future
amended complaints.
lightly.
The Court does not take these findings
Therefore, pursuant to FRCP 11(c)(3), the Court ORDERS
Plaintiffs’ counsel to SHOW CAUSE why they have not violated FRCP
11(b) by filing the instant Motion.
Plaintiffs’ counsel shall
appear at a show cause hearing on August 2, 2012 at 10:00 a.m.
before the undersigned Magistrate Judge, and may submit a
memorandum for the Court’s consideration by no later than July
19, 2012.
CONCLUSION
In accordance with the foregoing, the Court HEREBY
ORDERS as follows:
(1)
Plaintiffs’ Motion for Leave to File a Fourth
Amended Complaint, filed on May 10, 2012, is DENIED.
(2)
Plaintiffs’ Motion for Leave to Supplement their
Reply to City Defendants’ Memorandum in Opposition to Plaintiffs’
Motion for Leave to File a Fourth Amended Complaint, filed on
June 28, 2012, is DENIED.
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(3)
Plaintiffs’ Motion to Modify Rule 16 Scheduling
Order, filed on June 20, 2012, is DENIED IN PART AND TAKEN UNDER
ADVISEMENT IN PART.
Plaintiffs’ request to extend the December
30, 2011 deadline to amend pleadings is DENIED.
Plaintiffs’
request to extend the deadline to file a response to Defendants’
expert witness reports is TAKEN UNDER ADVISEMENT.
(4)
Plaintiffs’ counsel is ORDERED TO SHOW CAUSE why
they have not violated Fed. R. Civ. P. 11(b) by filing
Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint.
Plaintiffs’ counsel shall appear at a show cause hearing on
August 2, 2012 at 10:00 a.m. before the undersigned Magistrate
Judge, and may submit a memorandum for the Court’s consideration
by no later than July 19, 2012.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, JULY 3, 2012.
_____________________________
Richard L. Puglisi
United States Magistrate Judge
DOWKIN ET AL. V. HONOLULU POLICE DEP’T ET AL.; CIVIL NO. 10-00087
SOM-RLP; ORDER (1) DENYING PLAINTIFFS’ MOTION FOR LEAVE TO FILE A
FOURTH AMENDED COMPLAINT; (2) DENYING PLAINTIFFS’ MOTION FOR
LEAVE TO SUPPLEMENT THEIR REPLY; (3) DENYING IN PART AND TAKING
UNDER ADVISEMENT IN PART PLAINTIFFS’ MOTION TO MODIFY RULE 16
SCHEDULING ORDER; AND (4) FOR PLAINTIFFS’ COUNSEL TO SHOW CAUSE
WHY THEY DID NOT VIOLATE FRCP 11(b)
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