Hasegawa et al v. State of Hawaii et al

Filing 54

ORDER: (1) VACATING THE MAGISTRATE'S ORDER GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S THIRD AMENDED COMPLAINT 47 ; (2) VACATING THE CLERK'S JUDGMENT 39 ; AND (3) REOPENING THE CASE. Excerpt of or der: ~ "The Clerk of the Court is directed to VACATE the Judgment entered on May 31, 2011 and RE-OPEN this case. Defendants shall have thirty (30) days from the date of this Order to file a Motion to Dismiss or Motion for Summ ary Judgment, or otherwise respond to Plaintiff's Third Amended Complaint." ~ Signed by JUDGE DAVID ALAN EZRA on 12/14/2011. Related document terminated: Appeal of Magistrate Judge Decision to District Court, doc no. [ 48]. (afc) 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 will be served by first class mail on December 15, 2011.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CLIFTON MASAYOSHI
HASEGAWA, ET AL.,

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)
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Plaintiffs,
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vs.
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STATE OF HAWAII, ET AL.,
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Defendants.
)
_____________________________ )

CV. NO. 10-00745 DAE-BMK

ORDER: (1) VACATING THE MAGISTRATE’S ORDER GRANTING
DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S THIRD AMENDED
COMPLAINT; (2) VACATING THE CLERK’S JUDGMENT; AND (3) REOPENING THE CASE
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for
disposition without a hearing. The Court hereby VACATES the Magistrate’s
Order Granting Defendants’ Motion to Strike Plaintiff’s Third Amended
Complaint, VACATES the Clerk’s Judgment, and RE-OPENS this case.
BACKGROUND
On December 14, 2010, Plaintiff Clifton Masayoshi Hasegawa
(“Plaintiff”), proceeding pro se, filed a Complaint against Defendants the State of
Hawaii, former Governor Linda Lingle in both her individual and official
capacities, and former Attorney General Mark Bennett in his individual and official

capacities (collectively, “Defendants”). (“Compl.,” Doc. # 1.) The next day,
Plaintiff filed a First Amended Complaint (Doc. # 6) and five days later, Plaintiff
filed a Second Amended Complaint (Doc. # 8).
On May 24, 2011, this Court issued an Order Dismissing the
Complaint, the First Amended Complaint, and the Second Amended Complaint.
(Doc. # 38.) Most of Plaintiff’s claims were dismissed with prejudice, but at least
one of Plaintiff’s claims was dismissed without prejudice. (Id. at 15.) On May 31,
2011, the Clerk’s Office entered Judgment in Defendants’ favor pursuant to the
Court’s May 24, 2011 Order and closed the case. (Doc. # 39.)
On September 21, 2011, Plaintiff filed a Third Amended Complaint.
(Doc. # 42.) On September 23, 2011, Defendants filed a Response to Plaintiff’s
Third Amended Complaint requesting that the Court strike Plaintiff’s Third
Amended Complaint as an improperly filed pleading. (Doc. # 41.)
On October 28, 2011, Magistrate Judge Barry M. Kurren issued an
Order Granting Defendants’ Motion to Strike Plaintiff’s Third Amended
Complaint. (Doc. # 47.) On November 17, 2011, Plaintiff filed a “Notice of
Appeal” from the Magistrate’s Order.1 (Doc. # 48.)

1

The Court notes that Plaintiff’s Notice of Appeal is directed to the Ninth
Circuit Court of Appeals. However, since Plaintiff is appealing a decision of a
magistrate judge on a non-dispositive matter, it is the district court, and not the
2

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(A), a district judge may designate a
magistrate judge to hear and decide a pretrial matter pending before the court. The
decision of the magistrate judge on non-dispositive matters is final. Bhan v. NME
Hosp., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). However, a district judge may
reconsider a magistrate’s order on these non-dispositive pretrial matters and set
aside that order, or any portion thereof, if it is “clearly erroneous or contrary to
law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); LR 74.1; see Rivera v.
NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004); see also Osband v. Woodford,
290 F.3d 1036, 1041 (9th Cir. 2002).
The threshold of the “clearly erroneous” test is high. See Boskoff v.
Yano, 217 F. Supp. 2d 1077, 1084 (D. Haw. 2001). The magistrate judge’s factual
findings must be accepted unless the court is “left with the definite and firm
conviction that a mistake has been committed.” United States v. Silverman, 861
F.2d 571, 576–66 (9th Cir. 1988). “The reviewing court may not simply substitute

Court of Appeals, that reviews the magistrate’s order in the first instance to correct
any clear error. See Fed. R. Civ. Proc. 72(a); Cole v. U.S. Dist. Court for Dist. of
Idaho, 366 F.3d 813, 818 (9th Cir. 2004). Therefore, the Court construes
Plaintiff’s Notice of Appeal to the Ninth Circuit as an Appeal of the Magistrate
Judge’s Order to the undersigned District Judge.
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its judgment for that of the deciding court.” Grimes v. City & Cnty. of S.F., 951
F.2d 236, 241 (9th Cir. 1991).
“A decision is ‘contrary to law’ if it applies an incorrect legal standard
or fails to consider an element of the applicable standard.” Na Pali Haweo Cmty.
Ass’n v. Grande, 252 F.R.D. 672, 674 (D. Haw. 2008); see Hunt v. Nat’l
Broadcasting Co., 872 F.2d 289, 292 (9th Cir. 1989) (noting that such failures
constitute abuse of discretion).
DISCUSSION
The Court’s May 24, 2011 Order makes clear that while some claims
were dismissed with prejudice, at least one claim was dismissed without prejudice:
The Complaint, FAC, and SAC are DISMISSED WITH PREJUDICE
as to Plaintiff’s causes of action seeking damages based on Plaintiff’s
EEOC complaint, Plaintiff’s actions as a “whistle blower,” and
Defendant[s’] acts of “negligence” and “omission,” and DISMISSED
WITHOUT PREJUDICE as to Plaintiff’s claim for the replacement of
property allegedly taken from him at the time of his imprisonment.
(Doc. # 38 at 15 (emphasis in original).) The Order further provides as follows:
[T]he Court cautions Plaintiff that if he chooses to file a third
amended complaint, he must state the claims he wishes to bring before
the Court in their entirety, as the Court will not consider any prior
complaint filed by Plaintiff.
(Id. at 2 n.1.) In other words, the Court implicitly granted Plaintiff leave to file an
amended pleading. Nonetheless, on May 31, 2011, the Clerk’s Office
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improvidently entered Judgment in Defendants’ favor and closed the case. The
Court concludes that the Clerk’s Judgment was entered in error. The Court further
concludes that Plaintiff’s Third Amended Complaint should not be stricken from
the record because Plaintiff was granted leave to amend his complaint pursuant to
the Court’s May 24, 2011 Order.
CONCLUSION
Accordingly, the Court hereby VACATES the Magistrate’s Order
Granting Defendants’ Motion to Strike the Third Amended Complaint. The Clerk
of the Court is directed to VACATE the Judgment entered on May 31, 2011 and
RE-OPEN this case. Defendants shall have thirty (30) days from the date of this
Order to file a Motion to Dismiss or Motion for Summary Judgment, or otherwise
respond to Plaintiff’s Third Amended Complaint.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 14, 2011.

_____________________________
David Alan Ezra
United States District Judge

Clifton Masayoshi Hasegawa, et al. vs. State of Hawaii, et al., Civil No. 10-00745 DAE-BMK; ORDER: (1) VACATING THE
MAGISTRATE’S ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S THIRD AMENDED
COMPLAINT; (2) VACATING THE CLERK’S JUDGMENT; AND (3) RE-OPENING THE CASE

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