Dowkin et al v. Honolulu Police Department et al
Filing
393
ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A FOURTH AMENDED COMPLAINT re 338 ; 379 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/27/12. (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,
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Plaintiffs,
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V.
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THE HONOLULU POLICE
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DEPARTMENT, THE CITY AND
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COUNTY OF HONOLULU, FORMER
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CHIEF OF POLICE BOISSE CORREA, )
CURRENT CHIEF OF POLICE LOUIS )
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KEALOHA, ASSISTANT CHIEF
MICHAEL TAMASHIRO, MAJOR
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KENNETH SIMMONS, MAJOR JOHN
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MCENTIRE, CAPTAIN NYLE DOLERA, )
LIEUTENANT MICHAEL SERRAO,
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LIEUTENANT DAN KWON,
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LIEUTENANT WILLIAM AXT,
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SERGEANT WAYNE FERNANDEZ,
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SERGEANT RALSTON TANAKA,
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OFFICER KASHIMOTORO, PAT AH
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LOO AND Does 1-100,
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Defendants.
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CIVIL NO. 10-00087 SOM/RLP
ORDER AFFIRMING MAGISTRATE
JUDGE’S ORDER DENYING
PLAINTIFFS’ MOTION FOR LEAVE
TO FILE A FOURTH AMENDED
COMPLAINT
ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER DENYING
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A FOURTH AMENDED COMPLAINT
Plaintiffs Sergeant Shermon Dean Dowkin, Officer
Federico Delgadillo Martinez, Jr., and Officer Cassandra BennettBagorio of the Honolulu Police Department are appealing
Magistrate Judge Richard L. Puglisi’s order denying their motion
for leave to file a fourth amended complaint (“FAC”), ECF No.
338.1
Pursuant to Local Rule 7.2(d), the court finds this matter
suitable for disposition without a hearing.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 74.1,
a party may appeal to a district judge any pretrial
nondispositive matter determined by a magistrate judge.
Under 28
U.S.C. § 636(b)(1)(A), a magistrate judge’s order may be reversed
by a district court only if it is “clearly erroneous or contrary
to law.”
The threshold of the “clearly erroneous” test is high.
“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.”
333 U.S. 364, 395 (1948).
United States v. U.S. Gypsum Co.,
See also Thorp v. Kepoo, 100 F. Supp.
2d 1258, 1260 (D. Haw. 2000) (stating that the clearly erroneous
standard is “significantly deferential, requiring a definite and
firm conviction that a mistake has been committed”).
Magistrate Judge Puglisi’s ruling that Plaintiffs
failed to show “good cause” for amending the Rule 16 scheduling
order to allow the filing of a motion to amend the complaint was
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Plaintiffs’ reply violates Local Rule 74.1, which states:
“No reply in support of an appeal [of a magistrate judge’s order]
or cross-appeal shall be filed without leave of court.”
Plaintiffs did not request leave to file a reply. The court has
nonetheless reviewed the reply, which correctly indicates that
the appeal was timely and also contends that the appeal
challenges the denial of the request to modify deadlines and of
the request to augment a memorandum.
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not clearly erroneous or contrary to law.
Under Rule 16(b)(4) of
the Federal Rules of Civil Procedure, a scheduling order “may be
modified only for good cause and with the judge’s consent.”
“The pretrial schedule may be modified if it cannot
reasonably be met despite the diligence of the party seeking the
extension.
If the party seeking the modification was not
diligent, the inquiry should end and the motion to modify should
not be granted.”
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080,
1087 (9th Cir. 2002) (citations and quotation marks omitted).
Magistrate Judge Puglisi did not clearly err when he ruled, based
on the record before him, that Plaintiffs had not been diligent.
Plaintiffs waited nearly five months after receiving the
documents that allegedly alerted them to the new facts forming
the basis of the proposed FAC before moving to modify the Rule 16
scheduling order.
Plaintiffs do not appear to be arguing that Magistrate
Judge Puglisi applied the wrong standard.
The court nonetheless
notes that it was not clearly erroneous for Magistrate Judge
Puglisi to apply the Rule 16(4)(a) good cause standard rather
than the more liberal Rule 15 standard.
The December 30, 2011,
deadline for motions to amend the pleadings set forth in the
November 8, 2011, scheduling order clearly remained in effect.
The “N/A” notation in the February 29, 2012, scheduling order for
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that deadline was simply a recognition that it was unnecessary to
restate the deadline because it had already passed.
Nor did Magistrate Judge Puglisi err when he denied
Plaintiffs’ motion to supplement their reply.
Plaintiffs
ostensibly needed to supplement their reply in light of documents
they had received after they filed their reply.
However, the
record shows that Plaintiffs received those documents before the
reply was actually filed.
Magistrate Judge Puglisi also ruled that Plaintiffs’
proposed FAC violates Rule 8(a)(2) of the Federal Rules of Civil
Procedure.
Even if they had complied with Rule 8(a)(2),
Plaintiffs would not have been entitled to file the FAC in light
of their lack of good cause to modify the Rule 16 scheduling
order.
The court nonetheless notes that it agrees with
Magistrate Judge Puglisi that the proposed FAC violated Rule
8(a)(2) for the reasons stated in his order.
This court has
repeatedly cautioned Plaintiffs about their pleading deficiencies
in rulings on other motions.
The court also acknowledges that some courts view a
magistrate judge’s denial of a motion for leave to amend as
sometimes being a ruling on a dispositive matter that is subject
to de novo review.
See JJCO, Inc. v. Isuzu Motors America, Inc.,
Civ. No. 08-00419 SOM/LEK, 2009 WL 3818247, *2-4 (D. Haw. Nov.
12, 2009) (listing cases viewing a denial of a leave to amend as
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a dispositive motion).
This view is not universal, and the
parties do not identify, nor has this court found, any Ninth
Circuit case requiring de novo review of a magistrate judge’s
ruling denying leave to amend a complaint.
Plaintiffs’ filings
cite Local Rule 74.1, which is applicable to appeals from orders
on nondispositive motions, and refer to the “clearly
erroneous/contrary to law” standard, not to the de novo review
standard applicable to a magistrate judge’s findings and
recommendations on a dispositive matter.
§ 636(b)(1).
See 28 U.S.C.
In the context of this case, it appears to this
court that Plaintiffs are correct in reading the Magistrate
Judge’s denial of leave to file an amended complaint as
addressing a nondispositive pretrial matter.
Indeed, the court
need not even reach the denial of leave to file an amended
complaint given the court’s affirmance of the denial of the
request to extend the Rule 16 deadline for filing a motion to
file an amended complaint.
Even if the denial of leave to file an amended
complaint must be reviewed de novo (a matter this court does not
rule here), the result would be the same.
That is, if this court
construed Magistrate Judge Puglisi’s order as constituting
findings and recommendations as to the motion for leave to file
an amended complaint and reviewed the findings and
recommendations de novo, this court would reach the very result
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Magistrate Judge Puglisi reached.
The court would therefore
adopt those findings and recommendations.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 27, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Dowkin v. Honolulu Police Department, Civ. No. 10-00087 SOM/RLP; ORDER AFFIRMING
MAGISTRATE JUDGE’S ORDER DENYING PLAINTIFFS’ MOTION FOR LEAVE TO FILE A FOURTH AMENDED
COMPLAINT
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