Kosegarten v. The Department of the Prosecuting Attorney, County of Maui et al
Filing
115
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE AND/OR TO DISMISS PORTIONS OF PLAINTIFF'S SECOND AMENDED COMPLAINT 63 . Signed by JUDGE LESLIE E. KOBAYASHI on 4/5/2012. (afc) CERTIFICATE O F 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
FOR THE DISTRICT OF HAWAII
MARIE J. KOSEGARTEN,
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Plaintiff,
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vs.
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THE DEPARTMENT OF THE
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PROSECUTING ATTORNEY, ET AL., )
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Defendants.
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_____________________________ )
CIVIL NO. 10-00321 LEK-KSC
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO STRIKE AND/OR TO DISMISS
PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
On January 4, 2012, Defendants the County of Maui (“the
County”); Benjamin M. Acob, in his individual capacity
(“Defendant Acob”); and Timothy T. Tate, in his individual
capacity (“Defendant Tate”, all collectively, “Defendants”) filed
the instant Motion to Strike and/or to Dismiss Portions of
Plaintiff’s Second Amended Complaint (“Motion”).
Plaintiff
Marie J. Kosegarten (“Plaintiff”) filed her memorandum in
opposition on March 6, 2012, and Defendants filed their reply on
March 13, 2012.
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 Motion, supporting and opposing memoranda,
and the relevant legal authority, Defendants’ Motion is HEREBY
GRANTED IN PART AND DENIED IN PART for the reasons set forth
below.
BACKGROUND
The parties and the Court are familiar with the factual
and procedural background of this case, and the Court will only
discuss the events that are relevant to the instant Motion.
On June 23, 2010, Plaintiff filed her First Amended
Complaint in this action.1
The First Amended Complaint alleged
the following claims: a discrimination/wrongful termination claim
against the County and Defendant Acob under Title VII of the
Civil Rights Act of 1964 (“Count I”); a sexual harassment/hostile
work environment claim against Defendants (“Count II”); a
retaliation claim against the County and Defendant Acob (“Count
III”); a discriminatory practices claim against the County and
Defendant Acob pursuant to Haw. Rev. Stat. Chapter 378 (“Count
IV”); a Hawai`i Whistleblower’s Protection Act claim against the
County and Defendant Acob pursuant to Haw. Rev. Stat. § 378-61,
et seq. (“Count V”); a breach of fiduciary duty claim against the
County and Defendant Acob (“Count VI”); a defamation claim
against Defendant Tate (“Count VII”); an intentional infliction
of emotional distress (“IIED”) claim against Defendants (“Count
VIII”); and a claim for punitive damages (“Count IX”).
1
The First Amended Complaint named Defendants Acob and Tate
in their official and individual capacities.
2
On November 29, 2011, this Court issued its Order
Granting in Part and Denying in Part as Moot Defendants’ Motion
for Judgment on the Pleadings on Certain Claims and Granting
Plaintiff’s Request for Leave to File a Second Amended Complaint
(“Order”).
2011 WL 6002870.
The Order noted that the parties
stipulated to dismiss:
1.
2.
3.
4.
All claims for punitive damages against
Defendant County.
Counts I, II, III and IX to the extent
Plaintiff makes claims and seeks damages,
including punitive damages, against
Defendants ACOB and TATE in their individual
capacities for violations of Title VII.
Count VI (Fiduciary Duty).
All claims made against Defendants ACOB and
TATE in their official capacities.
Id. at *7-8 (quoting Stip. for Dismissal With Prejudice as to
Various Counts Against Defs., filed 11/10/11 (dkt. no. 52.)
(“11/10/11 Stip.”), at 2).
Thus, the Order denied as moot the
motion to dismiss the First Amended Complaint as to those claims.
Id. at *8.
The Court also dismissed the claims in the First
Amended Complaint under Haw. Rev. Stat. § 378-2(1) and (2)
against Defendants Acob and Tate, and concluded that the First
Amended Complaint did not state an aiding and abetting claim
under Haw. Rev. Stat. § 378-2(3).
Id. at *11-12.
The Court,
however, gave Plaintiff leave to amend her complaint, stating:
The Court emphasizes that the leave granted
Plaintiff is limited to the addition of the § 3782(3) claim and to the incorporation of the terms
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of the 11/10/11 Stipulation. Plaintiff may not
add any new parties, any new legal theories, or
any other new claims. The Court CAUTIONS
Plaintiff and her counsel that the failure to
comply with the terms of this order may result in
sanctions, including, but not limited to, the
dismissal of the § 378-2(3) claim.
Id. at *13.
Plaintiff timely filed her Second Amended Complaint on
December 21, 2011.
The Second Amended Complaint alleges the
following claims: a Title VII discrimination/wrongful termination
claim against the County (“Count 1”); a sexual harassment/hostile
work environment claim against the County (“Count 2”); a
retaliation claim against the County (“Count 3”); a
discriminatory practices claim against all Defendants pursuant to
Chapter 378, including the aiding and abetting claim against
Defendants Acob and Tate (“Count 4”); a Hawai`i Whistleblower’s
Protection Act claim against the County pursuant to Haw. Rev.
Stat. § 378-61, et seq. (“Count 5”); and a defamation claim
against Defendant Tate (“Count 6”).
In the instant Motion, Defendants urge the Court to
strike and/or dismiss parts of the Second Amended Complaint
because Plaintiff exceeded the authority to amend that this Court
granted in the Order.
Defendants argue that numerous changes and
additions in the Second Amended Complaint are unrelated to either
the addition of the § 378-2(3) aiding and abetting claim or the
implementation of the 11/10/11 Stipulation.
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Further, Plaintiff
has added new legal theories that would require Defendants to redepose Plaintiff.
Defendants ask the Court to strike all
additions that are unrelated to the § 378-2(3) claim, and
Defendants seek sanctions against Plaintiff for violating the
Order, including, but not limited to, the dismissal of the § 3782(3) claim.
Defendants argue that, even if the Court does not
dismiss the § 378-2(3) claim based on Plaintiff’s violation of
the Order, the Court must dismiss the § 378-2(3) claim because it
fails to state a claim upon which relief can be granted.
Defendants argue that Plaintiff has failed to identify a person
who was incited, compelled, or coerced to actually commit an
illegal act.
Plaintiff has only named the person who incited,
compelled, or coerced the alleged illegal act, and Defendants
emphasize that the County is not a person who can be incited,
compelled, or coerced.
Further, Defendants argue that
Plaintiff’s allegations that Defendant Tate filed discrimination
complaints against her cannot support an aiding and abetting
claim because notifying an employer of possible discrimination by
another employee is not an illegal act.
In her memorandum in opposition, Plaintiff denies that
she violated the Order.
She argues that all of the additional
facts alleged in the Second Amended Complaint are necessary to
understand the setting in the office where the alleged aiding and
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abetting occurred.
The new allegations also clarify claims and
facts that she previously pled.
Plaintiff emphasizes that the
core allegations about what Defendants Acob and Tate did have not
changed, and she asserts that she has not added any new parties,
legal theories, or new claims other than what the Order allowed.
As to Defendants’ argument that the § 378-2(3) claim
fails to state a claim, Plaintiff asserts that the Second Amended
Complaint sufficiently identifies Defendants Acob and Tate as the
persons who worked in concert to violate Plaintiff’s rights under
Title VII and Haw. Rev. Stat. Chapter 378.
Defendant Tate
incited, compelled, and coerced Defendant Acob, who ultimately
committed the illegal acts against Plaintiff.
She also argues
that Defendant Tate’s discrimination complaints against her were
false and served as the pretext that Defendant Acob needed to
terminate Plaintiff.
In their reply, Defendants first argue that Plaintiff’s
memorandum in opposition failed to address the failure to exhaust
administrative remedies argument which Defendants raised in their
February 10, 2012 errata to the Motion.
In addition, Defendants
reiterate that the Court should strike all portions of the Second
Amended Complaint which exceed the leave to amend granted in the
Order and that, even if the Court does not strike those
allegations, Plaintiff has still failed to state a plausible
§ 378-2(3) claim.
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DISCUSSION
I.
Defendants’ Errata
As previously noted, Defendants filed the instant
Motion on January 4, 2012.
On February 10, 2012, Defendants
filed a document entitled “Errata to Memorandum in Support of
Defendants’ Motion to Strike and/or to Dismiss Portions of
Plaintiff’s Second Amended Complaint” (“Errata”).
[Dkt. no. 95.]
The Errata purports to add a new argument to the memorandum in
support of the Motion - that Plaintiff failed to exhaust her
administrative remedies as to the § 378-2(3) aiding and abetting
claim.
The Errata also includes a declaration of counsel and
supporting exhibits.
First, the Court notes that Defendants failed to
provide the Court with the requisite courtesy copies of the
Errata.
Second, the Court does not consider a substantive
argument raised over a month after the filing of a motion to be
the proper subject of an errata filing.
Cf. Turner v. Dep’t of
Educ. Hawaii, Civ. No. 10–00707 ACK–BMK, 2012 WL 668829, at *1
n.4 (D. Hawai`i Feb. 29, 2012) (noting that the defendants filed
three errata, one providing a missing page from an exhibit, and
two correcting typographical errors in the declarations).
The
Court considers the argument in the Errata as more akin to a new
argument raised in the reply, which this Court would not
consider.
See Local Rule LR7.4 (“Any argument raised for the
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first time in the reply shall be disregarded.”).
The Court
therefore declines to rule upon the argument raised in
Defendants’ Errata.
In addition, the Court notes that Defendants’
exhaustion argument appears to be based on case law that is
inapplicable to the instant case.
Defendants argue: “Allegations
in the civil complaint that fall outside the scope of the
administrative charge are barred for failure to exhaust.”
[Errata at 3 (citing Rodriguez v. Airborne Express, 265 F.3d 890,
897 (9th Cir. 2001)).]
Rodriguez, however, does not address the
exhaustion of administrative remedies for claims under Haw. Rev.
Stat. Chapter 378.
In the event that Defendants properly raise
the exhaustion argument in a subsequent Motion, the Court directs
the parties to address French v. Hawaii Pizza Hut, Inc., 105
Hawai`i 462, 476, 99 P.3d 1046, 1060 (Hawai‘i 2004), and the
Hawai`i Supreme Court’s discussion of B.K.B. v. Maui Police
Department, 276 F.3d 1091, 1095, 1103 (9th Cir. 2002), a case
where “[i]n analogous circumstances, the Ninth Circuit Court of
Appeals held that the plaintiff’s state statutory claims of
sexual harassment were preserved despite her failure to include
specific allegations of sexual harassment on her [Hawai`i Civil
Rights Commission] form.”
II.
Exhibit D
In urging the Court to dismiss Plaintiff’s § 378-2(3)
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claim, Defendants ask this Court to consider Plaintiff’s answers
to interrogatories because they are contradictory to the
allegations in the Second Amended Complaint.
[Mem. in Supp. of
Motion at 8-9 (citing Motion, Decl. of Cheryl Tipton, Exh. D).]
Plaintiff asks the Court to strike Exhibits B2 and D because they
exceed what is permissible in a motion to dismiss.
[Mem. in Opp.
at 20.]
This district court has recognized that:
When a defendant attaches exhibits to a motion to
dismiss, the court ordinarily must convert the
motion into a summary judgment motion so that the
plaintiff has an opportunity to respond. Parrino
v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir.
1998). However, a court “may consider evidence on
which the complaint ‘necessarily relies’ if: (1)
the complaint refers to the document; (2) the
document is central to the plaintiff’s claim; and
(3) no party questions the authenticity of the
copy attached to the 12(b)(6) motion.” Marder v.
Lopez, 450 F.3d 445, 448 (9th Cir. 2006). The
court may treat such a document as “part of the
complaint, and thus may assume that its contents
are true for purposes of a motion to dismiss under
Rule 12(b)(6).” United States v. Ritchie, 342
F.3d 903, 908 (9th Cir. 2003).
Yamalov v. Bank of Am. Corp., CV. No. 10–00590 DAE–BMK, 2011 WL
1875901, at *7 n.7 (D. Hawai`i May 16, 2011).
Exhibits B and D
do not meet the exception to the general rule that considering
exhibits with a motion to dismiss converts the motion to dismiss
to a summary judgment motion.
The Court therefore declines to
2
Exhibit B is an excerpt from the transcript of Plaintiff’s
June 22, 2011 deposition.
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consider Defendants’ Exhibits B and D, but the Court also finds
that it is unnecessary to strike them.
Similarly, the Court also
declines Plaintiff’s apparent request that the Court consider the
as-yet-untranscribed deposition testimony of Wayne Steel.
in Opp. at 19.]
[Mem.
The Court now turns to the merits of Defendants’
Motion.
III. Violation of the Order
Defendants ask this Court to dismiss Plaintiff’s § 3782(3) aiding and abetting claim as a sanction for Plaintiff’s
failure to comply with the Order or, at least, to strike the new
allegations which exceed the authority to amend granted in the
Order.
As an initial matter the Court notes that, paragraph 48
of the Second Amended Complaint alleges:
On August 27, 2008, only a few days before
Plaintiff was scheduled to give testimony on
Ms. Jura and Ms. Murakami’s [Equal Employment
Opportunity Commission (“EEOC”)] complaints, and
as a result of Defendant Tate’s complaints,
Plaintiff was summoned into a meeting with
management and Defendant Acob and was informed of
Tate’s second and third complaints against her.
Furthermore, as a result of Defendant Tate’s
complaints, Defendants Acob and County informed
Plaintiff that they would be initiating a
“management violation” investigation against her,
implying she should be careful about what she said
at the upcoming EEOC hearings, as her testimony
might have a negative impact on her employment
with County.
In response to Defendants’ argument that Plaintiff admitted
during her deposition that Defendant Acob was not at the meeting
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referenced in paragraph 48, Plaintiff states that she agrees to
strike the references to Acob being present at the meeting.
[Mem. in Opp. at 8.]
The Court therefore GRANTS the Motion to
the extent that the Court STRIKES the portions of paragraph 48
stating that Defendant Acob attended the August 27, 2008 meeting,
as well as any other portions of the Second Amended Complaint
alleging that Defendant Acob attended that meeting.
As to the other changes in the Second Amended Complaint
which Defendants seek to strike, the Court FINDS that they do not
violate the Order.
The Order granted Plaintiff leave to amend
“limited to the addition of the § 378-2(3) claim and to the
incorporation of the terms of the 11/10/11 Stipulation[,]” and
cautioned Plaintiff that she could “not add any new parties, any
new legal theories, or any other new claims.”
at *13.
2011 WL 6002870,
The Second Amended Complaint does not include any new
parties or any new claims, other than the § 378-2(3) claim.
Defendants allege that some of Plaintiff’s changes present new
legal theories, but Plaintiff denies this.
Having reviewed all
of the changes in the Second Amended Complaint, the Court FINDS
that all of the changes either implement the 11/10/11
Stipulation, support the § 378-2(3) claim, or clarify preexisting factual allegations and claims.
Although the clarifying
amendments arguably constitute technical violations of the
Order’s admonition to limit the changes to the § 378-2(3) claim
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or the stipulation, they do not warrant any sanctions.
The Court
therefore DENIES Defendants’ Motion to the extent that Defendants
seek sanctions for violation of the Order.
The denial, however,
is without prejudice to a renewed motion if Plaintiff later
attempts to use the amendments in the Second Amended Complaint to
put forth a legal theory which Plaintiff did not put forth in the
First Amended Complaint.
IV.
Whether the § 378-2(3) Claim States a Claim
Defendants also argue that the Court should dismiss the
§ 378-2(3) aiding and abetting claim because it fails to state a
claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6) permits a motion to dismiss a
claim for “failure to state a claim upon which relief can be
granted[.]”
On a Rule 12(b)(6) motion to dismiss, all
allegations of material fact are taken as true and
construed in the light most favorable to the
nonmoving party. Fed’n of African Am. Contractors
v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996). To survive a motion to dismiss, a
complaint must contain sufficient factual matter
to “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the
court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009). “Threadbare
recitals of the elements of a cause of action,
supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 554,
127 S. Ct. 1955).
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Hawaii Motorsports Inv., Inc. v. Clayton Group Servs., Inc., 693
F. Supp. 2d 1192, 1195-96 (D. Hawai`i 2010).
Under these standards, the Court CONCLUDES that
Plaintiff’s § 378-2(3) claim is plausible on its face.
In
particular, the Second Amended Complaint, read as a whole,
sufficiently identifies: 1) Defendant Tate as the person who
incited, compelled, or coerced the discriminatory actions against
Plaintiff; and 2) Defendant Acob as the person who was incited,
compelled, or coerced into taking discriminatory actions against
Plaintiff.
Further, Defendant Tate’s discrimination complaints
against Plaintiff, although otherwise a legal activity, can
support a Chapter 378 claim because Plaintiff alleges that the
complaints were false and that Defendant Acob used them as a
pretext for the discriminatory actions.
Defendants, of course,
will have the opportunity to test Plaintiff’s allegations in
motions for summary judgment and/or at trial.
The Court therefore DENIES Defendants’ Motion to the
extent that it seeks dismissal of Plaintiff’s § 378-2(3) claim
for failure to state a claim.3
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
3
To the extent the Motion raises other arguments which the
Court has not specifically addressed in this Order, the Court
clarifies that it has rejected those arguments, as indicated by
the Court’s ultimate conclusion that Plaintiff’s § 378-2(3) claim
states a plausible claim.
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Strike and/or to Dismiss Portions of Plaintiff’s Second Amended
Complaint, filed January 4, 2012, is HEREBY GRANTED IN PART AND
DENIED IN PART.
The Court GRANTS the Motion to the extent that
the Court STRIKES the portions of paragraph 48 stating that
Defendant Acob attended the August 27, 2008 meeting, as well as
any other portions of the Second Amended Complaint alleging that
Defendant Acob attended that meeting.
Motion in all other respects.
The Court DENIES the
The denial of Defendants’ request
for sanctions, however, is without prejudice to a renewed motion
if Plaintiff later attempts to use the amendments in the Second
Amended Complaint to put forth a new legal theory in violation of
this Court’s Order Granting in Part and Denying in Part as Moot
Defendants’ Motion for Judgment on the Pleadings on Certain
Claims and Granting Plaintiff’s Request for Leave to File a
Second Amended Complaint, filed November 29, 2011.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 5, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARIE J. KOSEGARTEN V. THE DEPARTMENT OF THE PROSECUTING
ATTORNEY, ET AL; CIVIL NO. 10-00321 LEK-KSC; ORDER GRANTING IN
PART AND DENYING IN PART DEFENDANTS’ MOTION TO STRIKE AND/OR TO
DISMISS PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
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