Estate of Roel Tungpalan et al v. Crown Equipment Corp. et al

Filing 121

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S OBJECTIONS 115 ; (2) AFFIRMING IN PART AND VACATING IN PART THE MAGISTRATE JUDGE'S ORDER MODIFYING THE SCHEDULING ORDER AND PERMITTING PLAINTIFFS TO FILE A FIRST AMENDED COMPLAINT 83 ; (3) AFFIRMING IN PART AND VACATING IN PART THE MAGISTRATE JUDGE'S ORDER DENYING RECONSIDERATION OF THE DECEMBER 24, 2012 ORDER, AND DENYING DEFENDANT'S MOTION TO STRIKE FIRST AMENDED COMPLAINT 113 ; AND (4) ADOPTING, AS MODIFIED, T HE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO REMAND THIS ACTION 113 . Signed by JUDGE LESLIE E. KOBAYASHI on 6/12/2013. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifica tions 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. A SEPARATE CERTIFICATE OF SERVICE will be entered upon the Clerk's Office service of the instant order and transmission of the case to the First Circuit Court, State of Hawaii

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ESTATE OF ROEL TUNGPALAN,
JINGLE TUNGPALAN on behalf of
herself and her minor child,
J.T.,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
CROWN EQUIPMENT CORP., an
)
Ohio Corporation, d/b/a
)
“CROWN LIFT TRUCKS,” and DOE )
ENTITIES 1-10,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 11-00581 LEK-BMK

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT’S
OBJECTIONS; (2) AFFIRMING IN PART AND VACATING IN PART THE
MAGISTRATE JUDGE’S ORDER MODIFYING THE SCHEDULING ORDER AND
PERMITTING PLAINTIFFS TO FILE A FIRST AMENDED COMPLAINT;
(3) AFFIRMING IN PART AND VACATING IN PART THE MAGISTRATE
JUDGE’S ORDER DENYING RECONSIDERATION OF THE DECEMBER 24, 2012
ORDER, AND DENYING DEFENDANT’S MOTION TO STRIKE FIRST AMENDED
COMPLAINT; AND (4) ADOPTING, AS MODIFIED, THE MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATION TO REMAND THIS ACTION
Before the Court are Defendant Crown Equipment Corp.’s
(“Crown”1) Objections to the Magistrate Judge’s: (1) Order
Granting Plaintiffs’ Motion to Modify Rule 16 Order to Permit
Plaintiffs to File First Amended Complaint and Denying
Plaintiffs’ Motion to for [sic] Remand to the First Circuit Court
Without Prejudice; and (2) Order Granting in Part and Denying in

1

Crown is an Ohio corporation doing business as Crown Lift
Trucks.

Part Reconsideration of the Court’s December 24, 2012 Order;
Order Denying Defendant’s Motion to Strike First Amended
Complaint; Finding and Recommendation to Remand this Action
(“Objections”), filed on April 10, 2013.

[Dkt. no. 115.]

Plaintiffs the Estate of Roel Tungpalan and Jingle Tungpalan on
behalf of herself and her minor child, J.T. (collectively
“Plaintiffs”), filed their Response to the Objections
(“Response”) on April 25, 2013.

[Dkt. no. 116.]

The Court finds

this matter suitable for disposition without a hearing pursuant
to Rules LR7.2(d) and LR74.2 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 Objections,

the Response, and the relevant legal authority, and for the
reasons set forth below, this Court HEREBY GRANTS IN PART AND
DENIES IN PART Crown’s Objections.

Specifically, this Court: 1)

AFFIRMS IN PART AND VACATES IN PART the magistrate judge’s
December 24, 2012 order modifying the scheduling order and
permitting Plaintiffs to file a First Amended Complaint; 2)
AFFIRMS IN PART AND VACATES IN PART the magistrate judge’s
March 27, 2013 order denying reconsideration of the December 24,
2012 order and denying Crown’s motion to strike the First Amended
Complaint; and 3) ADOPTS, AS MODIFIED, the magistrate judge’s
recommendation to remand this action to the State of Hawai`i
First Circuit Court.

2

BACKGROUND
Plaintiffs originally filed this action in the State of
Hawai`i First Circuit Court (“state court”) on August 23, 2011.
[Redacted Notice of Removal, filed 9/26/11 (dkt. no. 5), Exh. A
(Complaint).]

The Complaint alleges that, on or about

September 2, 2009, Roel Tungpalan was operating a fork lift truck
in the course of his employment with Kerr Pacific Corp., doing
business as HFM Food Service (“HFM”).

Roel Tungpalan died as a

result of injuries he suffered when boxes of frozen food fell on
him while he was operating the truck.

[Id. at ¶¶ 8-10.]

The

Complaint alleges, inter alia, that Crown negligently “designed,
manufactured, assembled, supplied, tested, marketed, promoted,
sold, and/or distributed” the fork lift truck that Roel Tungpalan
operated on September 2, 2009 and that a defect in the fork lift
truck rendered it unreasonably dangerous for its intended or
foreseeable use.

[Id. at ¶¶ 9, 13, 18.]

The Complaint asserts

five claims - strict product liability, negligence, failure to
warn, breach of warranty, and wrongful death.
On September 23, 2011, Crown removed this action to
this district court based on diversity jurisdiction.

[Redacted

Notice of Removal at ¶¶ 3-5 (stating that Crown is not a resident
of Hawai`i, the amount in controversy exceeds $75,000, and,
although the Complaint does not state what each plaintiff’s
3

respective state of citizenship is, Crown believes Plaintiffs are
citizens of Hawai`i).]
The original Rule 16 Scheduling Order stated, inter
alia, that the deadline to add parties and amend pleadings was
April 13, 2012.

[Rule 16 Scheduling Order, filed 11/2/11 (dkt.

no. 14), at 2.]
On March 14, 2012, the magistrate judge approved and
filed the parties’ stipulation to allow HFM to enter the case as
a Plaintiff-Intervenor.

[Dkt. no. 32.]

On April 10, 2012, the magistrate judge issued an
Amended Rule 16 Scheduling Order which stated, inter alia, that
the deadline to add parties and amend pleadings was July 27,
2012.

[Amended Rule 16 Scheduling Order, filed 4/10/12 (dkt. no.

35), at 2.]

Following a stipulation to continue the trial date,

the magistrate judge issued another Amended Rule 16 Scheduling
Order on July 26, 2012, which noted that the deadline to add
parties and amend pleadings was closed.

[Amended Rule 16

Scheduling Order, filed 7/26/12 (dkt. no. 45), at 2.]
On October 26, 2012, Plaintiffs filed two motions to
compel to address various discovery disputes.

[Dkt. nos. 47,

50.]
I.

The Contested Orders
On October 30, 2012, Plaintiffs filed their Motion to

Modify Rule 16 Order to Permit Plaintiffs to File First Amended

4

Complaint and for Remand to the First Circuit Court (“Motion to
Amend”).

[Dkt. no. 57.]

In the Motion to Amend, Plaintiffs

sought leave to add Diversified Equipment, Inc. (“Diversified”)
and Interlake/Mecalux (“Interlake”) as additional defendants.
According to Plaintiffs, Interlake manufactured and Diversified
sold and installed the HFM warehouse racking system from which
the boxes of frozen food fell on Roel Tungpalan.

[Mem. in Supp.

of Motion to Amend at 6.]
On December 24, 2012, after briefing by the parties and
a hearing on December 4, 2012, the magistrate judge issued the
first order that Crown challenges in the Objections - the Order
Granting Plaintiffs’ Motion to Modify Rule 16 Order to Permit
Plaintiffs to File First Amended Complaint and Denying
Plaintiffs’ Motion for Remand to the First Circuit Court Without
Prejudice (“12/24/12 Order”).

[Dkt. no. 83.]

The magistrate

judge found that Plaintiffs had been diligent in pursuing
discovery and in seeking to amend the scheduling order.

Further,

in light of the stage of the case at the time, there was good
cause to amend the scheduling order.

[Id. at 2-3.]

The

magistrate judge also found that Plaintiffs had not acted in bad
faith, and that there was no undue delay or prejudice.

Finally,

the magistrate judge found that, based on the facts identified to
that point, the proposed amendment was not futile.

The

magistrate judge therefore granted Plaintiffs leave to amend

5

pursuant to Fed. R. Civ. P. 15(a).

[Id. at 3-4.]

To the extent

that the Motion to Amend sought remand of the action after the
filing of the First Amended Complaint, the magistrate judge
denied the request without prejudice to the refiling of a motion
to remand at a later date.

[Id. at 4.]

Plaintiffs filed their First Amended Complaint on
December 4, 2012, based upon the magistrate judge’s oral ruling
at the hearing on the Motion to Amend.

[Dkt. nos. 74 (Minutes),

75 (First Amended Complaint).]
On January 7, 2013, Crown filed a motion seeking
reconsideration of the 12/24/12 Order (“Motion for
Reconsideration”) and a motion to strike the First Amended
Complaint (“Motion to Strike”).

[Dkt. nos. 85, 86.]

On March 27, 2013, following briefing by the parties
and a hearing on February 1, 2013, the magistrate judge issued
the second document that Crown challenges in the Objections - the
Order Granting in Part and Denying in Part Reconsideration of the
Court’s December 24, 2012 Order; Order Denying Defendant’s Motion
to Strike First Amended Complaint; Findings and Recommendation to
Remand this Action (“3/27/13 Order & Recommendation”).
113.]

[Dkt. no.

The magistrate judge granted reconsideration of the

12/24/12 Order only to the extent that the magistrate judge found
and recommended that the action be remanded to the state court.
the magistrate judge denied reconsideration in all other respects

6

and denied Crown’s Motion to Strike.
The magistrate judge concluded that 28 U.S.C. § 1367(b)
prevents plaintiffs from evading diversity jurisdiction by
joining a non-diverse defendant, but § 1367(b) did not preclude
the joinder of Diversified, a non-diverse party, and Interlake
because Plaintiffs’ proposed amendment was legitimate (i.e. the
amendment was not for the purpose of evading jurisdiction).

The

magistrate judge therefore rejected Crown’s argument that
allowing Plaintiffs to add Diversified and Interlake as
additional defendants was improper.
Recommendation at 3-4.]

[3/27/13 Order &

The magistrate judge concluded that,

with the joinder of a non-diverse party, remand was mandatory
pursuant to 28 U.S.C. § 1447(e).

[Id. at 4-6 (citing Stevens v.

Brink’s Home Security, Inc., 378 F.3d 944, 946, 949 (9th Cir.
2004); Orlando v. Carolina Cas. Ins. Co., 1:07cv92 AWI SMS, 2008
WL 5247718, at *1 (E.D. Cal. Dec. 17, 2008)).]
II.

Crown’s Objections
Crown’s primary argument is that the magistrate judge

erred in relying upon § 1447(e) to allow Plaintiffs to amend
their Complaint to add the non-diverse defendant, Diversified.
Crown contends that 28 U.S.C. § 1367(b) required the denial of
Plaintiffs’ request to join Diversified as an additional
defendant.
Crown further argues that, even assuming, arguendo,

7

that § 1447(e) applied, the magistrate judge clearly erred in his
analysis of the factors relevant to a § 1447(e) joinder.
According to Crown: Diversified is not a necessary party under
Fed. R. Civ. P. 19(a); Plaintiffs’ claims against Diversified are
time barred; Plaintiffs unduly delayed in identifying Diversified
as a potential defendant; the joinder of Diversified is solely
for the purpose of destroying diversity jurisdiction; Plaintiffs’
claims against Diversified are meritless because Diversified had
nothing to do with the racking that was involved in the incident
in question; and Plaintiffs will not suffer prejudice if this
case proceeds without Diversified because Plaintiffs’ claims
against Diversified are meritless.
For similar reasons, Crown argues that the magistrate
judge clearly erred in finding that there was good cause to amend
the scheduling order pursuant to Fed. R. Civ. P. 16, and in
finding that leave to amend the Complaint was appropriate under
Fed. R. Civ. P. 15(a).

In particular, Crown argues that the

proposed amendment was futile because Plaintiffs’ proposed claims
against Diversified and Interlake are barred by the two-year
statute of limitations in Haw. Rev. Stat. § 663-3 for wrongful
death claims.

Further, Crown asserts that the proposed amendment

was futile because the evidence shows that Diversified and
Interlake did not provide or install the racking in question.
Crown also argues that the magistrate judge clearly

8

erred in allowing Plaintiffs to join Interlake as a defendant
because Interlake is currently in bankruptcy proceedings in the
United States District Court for the District of Delaware.
Plaintiffs failed to ask the bankruptcy court to lift the
automatic stay to allow Plaintiffs to file suit against
Interlake.

Thus, Crown argues that Plaintiffs’ proposed claims

against Interlake are futile because any judgment Plaintiffs may
obtain in this action against Interlake would be void as
unlawfully obtained.
Finally, Crown argues that, because this Court must
vacate the 12/24/12 Order and strike the First Amended Complaint,
this Court must also reject the magistrate judge’s finding and
recommendation to remand this action to the state court.

If this

Court is inclined to affirm the 12/24/12 Order and adopt the
recommendation to remand the case, Crown requests that this Court
allow Crown time to file a motion to certify for interlocutory
appeal the question of whether § 1367(b) bars Plaintiffs’ request
to add a non-diverse defendant.
III. Plaintiffs’ Response
Plaintiffs respond that Crown’s § 1367(b) argument is
contrary to Ninth Circuit precedent and that § 1447(e) controls.
Plaintiffs also argue that Crown’s focus on that legal issue is
misleading.
Plaintiffs assert that the magistrate judge’s findings

9

of fact are relevant and were not clearly erroneous.

In

particular, Plaintiffs argue that the magistrate judge’s finding
that the proposed amendment was not frivolous is sufficiently
supported by the evidence currently available.

For example,

Justin Mederios, HFM’s vice president for facilities and
facilities development, testified in his deposition that HFM
bought the Interlake racking system from Diversified and
Diversified installed the system.

[Response at 11 (citing

Response, Decl. of Carl M. Varady (“Varady Decl.”), Exh. 15
(Excerpts of 6/1/12 Depo. Trans. of Justin Medeiros) at 10-13).]
Plaintiffs also provided a declaration by their engineering
expert, Ben Railsback, in which he states that the Interlake
racking system and the Crown lift truck, as they were used
together in HFM’s freezer, created an unreasonably dangerous
environment for Roel Tungpalan.

He also states that, had there

been a barrier or wire decking on the racking system, it would
have prevented the frozen meat from falling on Roel Tungpalan.
[Id. at 11-12 (citing Varady Decl., Exh. 16 (Decl. of Ben T.
Railsback) at ¶¶ 8-12).]

Mr. Mederios also testified that, after

Roel Tungpalan’s death, the protective decking was added to all
HFM racks, even the shelves holding palletized loads, such as the
one involved in this case, which previously did not have the
decking.

[Id. at 12 (citing Varady Decl., Exh. 15 at 9-14).]

Plaintiffs emphasize that, prior to filing the Motion to Amend,

10

they were diligent in trying to obtain Crown’s consent to add the
new parties.

Plaintiffs argue that, based on the relevant facts

and procedural circumstances of this case, this Court should not
overturn the magistrate judge’s findings that there was good
cause for the amendment and that the amendment was not futile.
As to Crown’s § 1367(b) argument, Plaintiffs argue that
this Court should affirm the magistrate judge’s ruling that
§ 1367(b) does not apply based on the factual finding that
Plaintiffs’ request to amend the Complaint was legitimate.
Plaintiffs also contend that, having allowed Plaintiffs to join a
non-diverse party, the magistrate judge correctly concluded that
remand is mandatory under Ninth Circuit precedent.

Plaintiffs

emphasize that the Ninth Circuit and district courts within the
Ninth Circuit have allowed amendments of pleadings even where the
amended pleading required immediate remand because the amendment
destroyed diversity jurisdiction.
Plaintiffs also argue that this Court should not
consider the arguments that Crown raises regarding the
legislative history of § 1447(e) and § 1367(b) because Crown did
not raise these arguments in connection with the underlying
motions.

Plaintiffs also argue that this Court should disregard

Interlake’s bankruptcy because, as discussed at the hearing on
the Motion to Amend, there is no stay in place in Interlake’s
bankruptcy proceeding.

Further, this Court should reject Crown’s

11

request for a stay to allow Crown to move for leave to file an
interlocutory appeal because remand orders are not appealable.
Plaintiffs acknowledge that Crown has presented
declarations contrary to Mr. Mederios’s testimony about the
source of the racking system.

Plaintiffs, however, argue that

this Court should disregard them because of Crown’s failure to
produce such evidence in a timely manner after Mr. Mederios’s
deposition.

Even if this Court considers them, they merely

establish that there is a dispute of fact on the issue, and a
motion to amend the complaint is not the proper stage in which to
address the factual dispute.

The magistrate judge properly

allowed the amendment to go forward, allowing Plaintiffs to test
their new claims on the merits.
Finally, Plaintiffs argue that Crown’s Objections were
frivolous and therefore this Court should, in addition to denying
the Objections, award Plaintiffs their attorneys’ fees and costs
incurred in responding to the Objections, and withdraw the pro
hac vice status of Crown’s counsel.
STANDARD
Crown’s Objections ask this Court to review both the
magistrate judge’s nondispositve 12/24/12 Order, and the
magistrate judge’s dispositive recommendation to remand this
action.
Pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 74.1, a party may appeal to a district judge
12

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.”
United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948). 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”).
Dowkin v. Honolulu Police Dep’t, Civil No. 10–00087 SOM/RLP, 2012
WL 3686679, at *1 (D. Hawai`i Aug. 27, 2012).
Any party may file objections to a magistrate judge’s
findings and recommendation regarding a case dispositive matter.
28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b); Local Rule LR74.2.
A judge of the court shall make a de novo
determination of those portions of the report or
specified proposed findings or recommendations to
which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate judge. The judge may also receive
further evidence or recommit the matter to the
magistrate judge with instructions.
§ 636(b)(1).

“[I]n providing for a ‘de novo determination’

rather than [de novo] hearing, Congress intended to permit
whatever reliance a district judge, in the exercise of sound
judicial discretion, chose to place on a magistrate’s proposed
findings and recommendations.”

United States v. Raddatz, 447

U.S. 667, 676 (1980) (citation omitted); accord Holder v. Holder,
13

392 F.3d 1009, 1022 (9th Cir. 2004) (citing Raddatz).

Pursuant

to Local Rule 74.2, this Court “may consider the record developed
before the magistrate judge,” but the Court must make its “own
determination on the basis of that record.”
DISCUSSION
Crown has raised a legal issue - whether 28 U.S.C.
§ 1367(b) precludes a district court from allowing a plaintiff to
join a defendant that would destroy the court’s diversity
jurisdiction.

Before this Court addresses that issue, however,

this Court must examine the magistrate judge’s analysis under
Fed. R. Civ P. 15 and 16 because, if Plaintiffs could not amend
their Complaint under the applicable rules, this Court need not
address the issue of whether § 1367(b) precludes the amendment.
I.

Fed R. Civ. P. 15 and 16
The magistrate judge was correct that he could only

modify the scheduling order in this case “for good cause[.]”
Fed. R. Civ. P. 16(b)(4).

See

“The good cause inquiry focuses on the

diligence of the party seeking to modify the scheduling order; if
the party seeking the modification was not diligent, the court
should deny the motion.”

Amina v. WMC Mortg. Corp., Civil No.

10–00165 JMS/KSC, 2011 WL 1869835, at *16 (D. Hawai`i May 16,
2011) (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087
(9th Cir. 2002)).

The magistrate judge found that, based on the

totality of the circumstances of this case, Plaintiffs had been
14

diligent and good cause existed.

[12/24/12 Order at 1-3.2]

In

light of the high threshold to establish that a finding of fact
is clearly erroneous, this Court cannot say that the magistrate
judge’s finding of good cause was clearly erroneous.
In addition to establishing good cause to amend the
scheduling order, Plaintiffs also had to establish that leave to
amend was appropriate under Fed. R. Civ. P. 15.

Rule 15(a)(2)

states that “[t]he court should freely give leave when justice so
requires.”

In determining whether to grant leave to amend,

courts may consider factors such as: bad faith or dilatory motive
on the movant’s part; whether the amendment will cause undue
delay; whether it will prejudice the opposing party; futility of
the amendment; and whether the movant has already failed to cure
deficiencies in prior amendments of her pleadings.

See Foman v.

Davis, 371 U.S. 178, 182 (1962); In re Morris, 363 F.3d 891, 894
(9th Cir. 2004).

“Futility of amendment can, by itself, justify

the denial of a motion for leave to amend.”
59 F.3d 815, 845 (9th Cir. 1995).

Bonin v. Calderon,

An amendment is futile when

“no set of facts can be proved under the amendment to the
pleadings that would constitute a valid and sufficient claim or
defense.”

Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th

Cir. 1988) (citations omitted).

2

This Court notes that the third page of the 12/24/12 Order
is mistakenly numbered “i”.
15

In considering the Motion to Amend, the magistrate
judge found that Plaintiffs had not acted in bad faith and that
there had been no undue delay or prejudice.
not clearly erroneous.

These findings were

The magistrate judge also found that:

Based on the declaration of Mr. Railsback in
support of Plaintiffs’ motion to amend; the
court’s review of the pleading; argument of
counsel; the file and records; facts known to date
through formal and informal discovery regarding
the racking system manufactured and/or distributed
and/or sold and/or installed by Interlake/Mecalux
and/or Diversified Equipment, Inc. . . . , and
installed in the freezer at HFM, with which
decedent Plaintiff ROEL TUNGPALAN collided while
operating the Crown Equipment Corp., narrow aisle
reach truck, thereby dislodging the pallet of
frozen meat that fell on him alleged to have
caused his injuries and death, the proposed
amendment would not be futile.
[Id. at 4-5.3]
erroneous.

This finding, by itself, is not clearly

Crown, however, argues that this Court must still

find that the addition of Plaintiffs’ proposed claims against
Diversified and Interlake were futile because they are barred by
the applicable statutes of limitations.
This Court notes that, in opposing the Motion to Amend,
Crown based its futility argument on the lack of “any evidence
that [Diversified] actually purchased racks or rack equipment
manufactured by Interlake” and “the fact that Interlake is
currently in bankruptcy.”

[Mem. in Opp. to Motion to Amend,

3

The fourth and fifth pages of the 12/24/12 Order are
mistakenly numbered “3” and “4” because of the misnumbering of
the third page.
16

filed 11/13/12 (dkt. no. 63), at 15-16.]

This Court will,

however, address the statute of limitations argument because this
district court has recognized that a proposed claim which would
not survive a motion to dismiss is futile.

See Pauline v. State

of Hawai`i Dep’t of Pub. Safety, 773 F. Supp. 2d 914, 920 (D.
Hawai`i 2011) (citing In re Park W. Galleries, Inc., MDL No.
09–2076RSL, 2010 WL 3699916, at *2 (W.D. Wash. Sept. 15, 2010)
(citing Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004))).
Further, Local Rule 74.1 allows the district judge considering an
appeal from a magistrate judge’s nondispositive order to
“reconsider sua sponte any matter determined by a magistrate
judge under this rule.”
Roel Tungpalan died on or about September 2, 2009.
[Complaint at ¶ 14.]

The statute of limitations for wrongful

death actions brought pursuant to Haw. Rev. Stat. § 663-3 is “two
years from the date of death of the injured person, except as
otherwise provided.”

In addition, “claims that might otherwise

be governed by [Haw. Rev. Stat. §] 657-7 are subsumed by section
663-3 when those claims are brought within the context of a
wrongful death suit.”

Gast v. Kwak, 396 F. Supp. 2d 1150, 1155

(D. Hawai`i 2005) (citation and internal quotation marks
omitted).

Thus, Plaintiffs’ strict product liability,

negligence, and failure to warn claims are also subject to the
two-year statute of limitations for wrongful death suits.

17

This

district court has also noted that § 663-3 is not subject to the
discovery rule.4

Id. at 1156.

Plaintiffs filed the instant action within two years of
Roel Tungpalan’s death.

Plaintiffs, however, did not bring their

new claims against Diversified and Interlake within two years of
his death.

Fed. R. Civ. P. 15(c)(1) governs whether an amendment

to a pleading relates back to the date of the original pleading.
It states:
An amendment to a pleading relates back to the
date of the original pleading when:
(A) the law that provides the applicable
statute of limitations allows relation back;
(B) the amendment asserts a claim or defense
that arose out of the conduct, transaction,
or occurrence set out--or attempted to be set
out--in the original pleading; or
(C) the amendment changes the party or the
naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule
4(m) for serving the summons and complaint,
the party to be brought in by amendment:
(i) received such notice of the action
that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the

4

The “discovery rule” means that, “‘under the statute of
limitations currently codified in H.R.S. § 657-7, a cause of
action does not “accrue,” and the limitations period therefore
does not begin to run, until the plaintiff knew or should have
known of the defendant’s negligence.’” Gast, 396 F. Supp. 2d at
1155 (quoting Hays v. City and County of Honolulu, 81 Hawai`i
391, 917 P.2d 718, 720 (1996)).
18

action would have been brought against
it, but for a mistake concerning the
proper party’s identity.
This district court has stated that, “[a]lthough Rule 15(c) only
refers to an amendment that changes the party, the rule extends
to the addition of a party, ‘even after the statute of
limitations has expired, if the requisite notice and identity of
interests showings are made.’”

Lucas v. Lockheed Martin

Integrated Sys., Inc., Civil. No. 06–00217 DAE–BMK, 2008 WL
314194, at *5 (D. Hawai`i Feb. 4, 2008) (quoting In re Glacier
Bay, 746 F. Supp. 1379, 1391 (D. Ala. 1990)).

In the present

case, there is no evidence that Diversified or Interlake had
notice of this action.

Thus, the new claims against Diversified

and Interlake would not relate back to the filing of the original
Complaint.

Plaintiff’s strict product liability, negligence,

failure to warn, and wrongful death claims against Diversified
and Interlake are therefore time-barred, and this Court FINDS
that the proposed amendment adding those claims is futile.

This

Court VACATES the 12/24/12 Order and the 3/27/13 Order &
Recommendation to the extent that the orders: allowed Plaintiffs
to assert strict product liability, negligence, failure to warn,
and wrongful death claims against Diversified and Interlake in
the First Amended Complaint; and denied Crown’s Motion to Strike
as to those claims.

Insofar as Plaintiffs filed the First

Amended Complaint on December 4, 2012, Crown’s Motion to Strike

19

is HEREBY GRANTED IN PART, and this Court STRIKES the portions of
the First Amended Complaint alleging strict product liability,
negligence, failure to warn, and wrongful death claims against
Diversified and Interlake.5
Plaintiffs, however, also proposed a breach of warranty
claim against Diversified and Interlake.

Breach of warranty

claims are governed by Haw. Rev. Stat. § 490:2-725, which states,
in pertinent part:
(1) An action for breach of any contract for sale
must be commenced within four years after the
cause of action has accrued. By the original
agreement the parties may reduce the period of
limitation to not less than one year but may not
extend it.
(2) A cause of action accrues when the breach
occurs, regardless of the aggrieved party’s lack
of knowledge of the breach. A breach of warranty
occurs when tender of delivery is made, except
that where a warranty explicitly extends to future
performance of the goods and discovery of the
breach must await the time of such performance the
cause of action accrues when the breach is or
should have been discovered.
Based on this definition of when a breach of warranty claim
accrues, this Court cannot find, based on the current record,
that Plaintiffs’ proposed breach of warranty claim against

5

This Court notes that the finding regarding futility is
based on the claims being barred by the statute of limitations,
an argument that Crown did not raise before the magistrate judge.
At the hearing on the Motion to Amend, Crown’s counsel stated:
“We’re beyond the statute of repose. Talk about futility.” The
magistrate judge responded: “Well, you haven’t raised that
argument.” [12/4/12 Hrg. Trans., filed 1/2/13 (dkt. no. 84), at
12.]
20

Diversified and Interlake is futile.

Plaintiffs should be

allowed the opportunity to litigate the statute of limitations
issue on the merits, rather than on a motion to amend.
Crown also argues that any amendment adding Interlake
as a defendant would be futile because Interlake is in the midst
of bankruptcy proceedings, and Plaintiffs did not file a motion
in the bankruptcy court to have the stay lifted to allow
Plaintiffs to bring their claim against Interlake.

At the

hearing on the Motion to Amend, however, Plaintiffs’ counsel
represented to the magistrate judge that, based on counsel’s
review of the bankruptcy court’s docket, there was no stay in
place in Interlake’s bankruptcy proceeding.

Crown neither

contested nor objected to the representation by Plaintiffs’
counsel.

[12/4/12 Hrg. Trans. at 5.]

Crown also argues that

Plaintiffs’ claims against Interlake are futile because
“Interlake/Mecalux” only purchased the assets - not the
liabilities - of the debtor, IMH, Inc., doing business as
Interlake Material Handling, Inc., and therefore
Interlake/Mecalux cannot legally be held liable, even if the
debtor was responsible for the racking at issue in this case.
That determination, however, involves factual issues that are
appropriate for determination in a motion to amend.

This Court

cannot find, based on the current record, that Plaintiffs’
proposed breach of warranty claim against Interlake is futile.

21

This Court therefore agrees with the magistrate judge
that leave to amend was warranted as to Plaintiffs’ proposed
breach of warranty claim against Diversified and Interlake.
III. 28 U.S.C. § 1367(b) and 28 U.S.C. § 1447(e)
Crown argues that, even if an amendment adding new
defendants were otherwise allowable under Rule 15(a), the
magistrate judge erred in granting the Motion to Amend because 28
U.S.C. § 1367(b) prohibits a district court from allowing such an
amendment where the additional defendant would destroy diversity
and where diversity jurisdiction is the sole basis for federal
jurisdiction.

Section 1367(b) states:

In any civil action of which the district courts
have original jurisdiction founded solely on
section 1332 of this title, the district courts
shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against
persons made parties under Rule 14, 19, 20, or 24
of the Federal Rules of Civil Procedure, or over
claims by persons proposed to be joined as
plaintiffs under Rule 19 of such rules, or seeking
to intervene as plaintiffs under Rule 24 of such
rules, when exercising supplemental jurisdiction
over such claims would be inconsistent with the
jurisdictional requirements of section 1332.
Crown argues that the magistrate judge erred in applying 28
U.S.C. § 1447(e), which states: “If after removal the plaintiff
seeks to join additional defendants whose joinder would destroy
subject matter jurisdiction, the court may deny joinder, or
permit joinder and remand the action to the State court.”

22

Some district courts have applied the same
interpretation of § 1367(b) as Crown presents here.

For example,

in Cornerbank, N.A. v. New York Life & Annuity Corp., the
plaintiff sought leave to amend its complaint, pursuant to Fed.
R. Civ. P. 15(a) and 20, to add two new defendants who would have
destroyed complete diversity.

The district court denied the

motion to amend because the addition of the proposed defendants
would violate § 1367(b).

No. 08–1189–MLB, 2008 WL 4974819 (D.

Kan. Nov. 19, 2008).
Such an automatic rule, however, is contrary to Ninth
Circuit precedent.

In reviewing an order denying a motion for

permissive joinder, the Ninth Circuit noted that “[t]he
jurisdictional requirement also prevents permissive intervention
from being used to destroy complete diversity in state-law
actions.”

Freedom from Religion Found., Inc. v. Geithner, 644

F.3d 836, 843 (9th Cir. 2011) (emphasis added) (citing 28 U.S.C.
§ 1332; 28 U.S.C. § 1367(b)).

Further, in Stevens v. Brink’s

Home Security, Inc., cited in the 3/27/13 Order & Recommendation,
the Ninth Circuit noted that the district court’s decision to
allow the plaintiff to join non-diverse defendants was a
discretionary one but, once the district court allowed the
joinder, remand was mandatory pursuant to § 1447(e).
944, 949 (9th Cir. 2004).

378 F.3d

Thus, Ninth Circuit law requires a

rule which leaves room for the application of either § 1367(b) or

23

§ 1447(e), depending upon which is appropriate based on the facts
of the case.

Ivnes v. Novartis Pharmaceutical Corp. describes

such an approach:
“[T]he purpose of § 1367(b) is to prevent
‘plaintiffs [from being able] to evade the
jurisdictional requirement of 28 U.S.C. § 1332 by
the simple expedient of naming initially only
those defendants whose joinder satisfies section
1332’s requirements and later adding claims not
within original federal jurisdiction against other
defendants who have intervened or been joined on
the supplemental basis.’” Grimes v. Mazda N. Am.
Operations, 355 F.3d 566, 572 (6th Cir. 2004)
(quoting H.R. Rep. No. 101–734, at 29 (1990),
reprinted in 1990 U.S.C.C.A.N. 6860, 6875)
(emphasis added). Subsection 1367(b) “represents
a codification of the Supreme Court’s decision in
Owen Equipment & Erection Co. v. Kroger, 437 U.S.
365, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978).”
Harmon v. McCreary, No. 07–3–DLB, 2007 WL 4163879,
at *2 (E.D. Ky. Nov. 20, 2007). Owen “held that a
plaintiff may not bypass the jurisdiction
requirements by suing only the diverse defendants
and waiting for them to implead the non-diverse
defendants.” Estate of Alvarez v. Donaldson Co.,
Inc., 213 F.3d 993, 995 (7th Cir. 2000) (emphasis
added).
This case does not involve the plaintiffs
asking the court to exercise supplemental
jurisdiction over the claims of non-diverse
defendants. Rather, this case involves the
plaintiffs’ request to join as parties non-diverse
defendants after removal of the case based on
diversity of citizenship, the circumstance
§ 1447(e) directly addresses. See Phillip–Stubbs
v. Walmart Supercenter, No. 12–10707, 2012 WL
1952444, at *4 (E.D. Mich. May 25, 2012) (“A
post-removal attempt to add non-diverse parties,
whether by right or by leave, implicates section
1447(e) and requires the court to exercise
discretion and adopt one of the two options
available to it.”).
An analysis under § 1447(e) requires the
24

balancing of the equities. Farm Bureau Life Ins.
Co. v. Nat’l City Corp., No. 5:06–CV–81, 2006 WL
2728359, at *2 (W.D. Mich. Sept. 22, 2006) (citing
Marshall v. Navistar Int’l Transp. Corp., 168
F.R.D. 606, 612 (E.D. Mich. 1996)). There are
four factors courts look to when conducting such
an analysis: “(1) the extent to which the purpose
of the amendment is to defeat jurisdiction;
(2) whether the plaintiff was dilatory in seeking
the amendment; (3) whether the plaintiff will be
injured significantly if the amendment is not
allowed; and (4) any other factors bearing on the
equities.” Siedlik v. Stanley Works, Inc., 205 F.
Supp. 2d 762, 765 (E.D. Mich. 2002) (citing Wells
v. Certainteed Corp., 950 F. Supp. 200, 201 (E.D.
Mich. 1997)). The court must also consider the
original defendant’s interest in choosing a
federal forum. Wells, 950 F. Supp. at 201 (citing
O’Connor v. Auto. Ins. Co. of Hartford Conn., 846
F. Supp. 39, 41 (E.D. Tex. 1994)). “The general
impetus for applying § 1447(e) is for the trial
court to use its discretion and determine if
allowing joinder would be fair and equitable.”
City of Cleveland v. Deutsche Bank Trust Co., 571
F. Supp. 2d 807, 823 (N.D. Ohio 2008) (citations
omitted).
No. 3:12-CV-191, 2013 WL 499211, at *2 (E.D. Tenn. Feb. 7, 2013)
(some alterations in Ivnes) (emphasis added).
In the instant case, the magistrate judge was correct
to examine whether Plaintiffs attempted to add Diversified to
evade diversity jurisdiction.

[3/27/13 Order & Recommendation at

3-4 (discussing Viacom Int’l, Inc. v. Kearney, 212 F.3d 721, 727
(2d Cir. 2000)).]

The magistrate judge found that Plaintiffs did

not attempt to add Diversified to avoid diversity jurisdiction
and that Plaintiffs’ amendment was legitimate.

The magistrate

judge’s Rule 16(b)(4) and Rule 15(a) findings regarding
diligence, good faith, and lack of undue delay or prejudice are
25

also relevant to the § 1447(e) analysis of whether it was
equitable to allow the amendment.

In light of all of the

relevant circumstances of this case, the magistrate judge
concluded that § 1367(b) did not apply and, in the exercise of
his discretion pursuant to § 1447(e), the magistrate judge
granted joinder and recommended remand.

See 28 U.S.C. § 1447(e)

(“the court may deny joinder, or permit joinder and remand the
action” (emphasis added)); Stevens, 378 F.3d at 949
(Section 1447(e) “requires a district court either to deny
joinder of non-diverse defendants or to permit joinder and remand
the case to state court.

A district court may not allow joinder

and retain jurisdiction.” (citation omitted)).
This Court, after a de novo review, agrees with the
magistrate judge that, based on the circumstances of this case,
§ 1367(b) does not preclude the joinder of Diversified, a nondiverse defendant.

Further, the magistrate judge’s discretionary

decision to allow Plaintiffs to join Diversified was well
supported by the magistrate judge’s factual findings regarding
the circumstances in which Plaintiffs’ proposed the joinder of
the new defendants.
erroneous.

Those findings of fact are not clearly

This Court therefore AFFIRMS the magistrate judge’s

12/24/12 Order and the 3/27/13 Order & Recommendation, insofar as
the orders: granted Plaintiffs leave to amend their Complaint to
add Diversified and Interlake to Plaintiffs’ breach of warranty
26

claim; and denied Crown’s Motion to Strike as to the breach of
warranty claim against Diversified and Interlake.
Plaintiffs have already filed the First Amended
Complaint and, insofar as this Court has affirmed the magistrate
judge’s ruling allowing Plaintiffs to allege a breach of warranty
claim against Diversified, there is no longer complete diversity
among the parties.

[First Amended Complaint at ¶¶ 3-4 (stating

that Roel Tungpalan, Jingle Tungpalan, and J.T. resided in
Honolulu at the time of the relevant events); id. at ¶ 8 (stating
that, at the time of the relevant events, Diversified was a
Hawai`i corporation with its principal place of business in
Hawai`i).]

The magistrate judge correctly concluded that, in

light of Stevens and other similar authority, the addition of the
non-diverse defendant requires remand.

This Court therefore

ADOPTS the magistrate judge’s recommendation that the instant
case be remanded to the state court.
IV.

Certification
Crown argues that, if this Court is inclined to deny

its Objections, this Court should allow Crown “time to
immediately file a motion to certify the question of whether 28
U.S.C. § 1367(b) applies to bar Plaintiffs’ request to add a nondiverse party-defendant, to the Ninth Circuit.”

[Objections at

30.]
As in the instant case, the order under review in

27

Stevens was a single order that both granted the plaintiff’s
motion for leave to amend and remanded the case to the state
court.

378 F.3d at 946.

The Ninth Circuit held that, even

assuming that the order granting the motion to amend was
separable from the remand order, the order granting leave to
amend “is not a final order reviewable on appeal under 28 U.S.C.
§ 1291; nor is it reviewable as a collateral order.

The district

court’s remand order, issued pursuant to 28 U.S.C. § 1447(e), is
barred from appellate review by 28 U.S.C. § 1447(d).”6
949.

Id. at

Crown essentially asks this Court to strike the First

Amended Complaint in its entirety and to delay the re-filing of
the First Amended Complaint with the breach of warranty claim
against Diversified, so that Crown can move for leave to file an
interlocutory appeal from this Court’s ruling allowing the claim
against Diversified.

This Court declines to do so because an

interlocutory appeal of that ruling is not warranted under the
circumstances of this case.

6

Section 1447(d) states:
An order remanding a case to the State court from
which it was removed is not reviewable on appeal
or otherwise, except that an order remanding a
case to the State court from which it was removed
pursuant to section 1442 or 1443 of this title
shall be reviewable by appeal or otherwise.

Neither exception applies in the instant case. 28 U.S.C. § 1442
addresses civil actions or prosecutions against federal officers,
and 28 U.S.C. § 1443 addresses civil rights cases.
28

28 U.S.C. § 1292(b) states:
When a district judge, in making in a civil action
an order not otherwise appealable under this
section, shall be of the opinion that such order
involves a controlling question of law as to which
there is substantial ground for difference of
opinion and that an immediate appeal from the
order may materially advance the ultimate
termination of the litigation, he shall so state
in writing in such order. The Court of Appeals
which would have jurisdiction of an appeal of such
action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application
is made to it within ten days after the entry of
the order: Provided, however, That application for
an appeal hereunder shall not stay proceedings in
the district court unless the district judge or
the Court of Appeals or a judge thereof shall so
order.
This Court has recently described the standard applicable to a
motion for leave to file an interlocutory appeal:
A movant seeking an interlocutory appeal has
a heavy burden to show that “exceptional
circumstances justify a departure from the basic
policy of postponing appellate review until after
the entry of a final judgment.” Coopers & Lybrand
v. Livesay, 437 U.S. 463, 475, 98 S. Ct. 2454, 57
L. Ed. 2d 351 (1978); see also James v. Price
Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th
Cir. 2002) (“Section 1292(b) is a departure from
the normal rule that only final judgments are
appealable, and therefore must be construed
narrowly.”); Pac. Union Conference of Seventh–Day
Adventists v. Marshall, 434 U.S. 1305, 1309, 98 S.
Ct. 2, 54 L. Ed. 2d 17 (1977) (“The policy against
piecemeal interlocutory review other than as
provided for by statutorily authorized appeals is
a strong one.” (citations omitted)). Indeed,
§ 1292(b) is used “only in exceptional situations
in which allowing an interlocutory appeal would
avoid protracted and expensive litigation.” In re
Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th
Cir. 1982) (citing U.S. Rubber Co. v. Wright, 359
F.2d 784, 785 (9th Cir. 1966) (per curiam)).
29

Hawaii ex rel. Louie v. JP Morgan Chase & Co., Civil Nos.
12–00263 LEK–KSC etc., 2013 WL 391024, at *3-4 (D. Hawai`i
Jan. 29, 2013) (quoting Leite v. Crane Co., Civil No. 11–00636
JMS/RLP, 2012 WL 1982535, at *2 (D. Hawai`i May 31, 2012)).
The instant case is not an exceptional case which
warrants an interlocutory appeal.

Even assuming, arguendo, that

this Court’s interpretation of § 1367(b) “involves a controlling
question of law as to which there is substantial ground for
difference of opinion[,]” an interlocutory appeal of this Court’s
ruling on Plaintiffs’ Motion to Amend would not materially
advance the ultimate termination of the litigation because
neither the joinder nor the non-joinder of Diversified and
Interlake will have an effect on the determination of the claims
between Plaintiffs, Crown, and HFM.

An interlocutory appeal

would not avoid, or substantially limit, the litigation involving
Plaintiffs, Crown, and HFM.

To the extent that Diversified and

Interlake may argue that they should not be parties in this case,
they can bring those arguments in the state court.
Insofar as this Court would not grant leave to file an
interlocutory appeal from this Court’s order allowing the breach
of warranty claim against Diversified and Interlake, this Court
declines to bifurcate that portion of this Court’s ruling from
the adoption of the recommendation to remand.

30

V.

Sanctions
Finally, Plaintiffs argue that this Court should impose

sanctions on Crown pursuant to Fed. R. Civ. P. 11 and reconsider
the pro hac vice status of Crown’s counsel because Crown’s
Objections were frivolous.

First, this Court notes that a party

seeking Rule 11 sanctions must comply with Rule 11(c)(2), and
Plaintiffs have not done so.

Moreover, even if Plaintiffs had

brought their request for sanctions in the proper form, this
Court would deny the request.

Insofar as this Court has granted

some of Crown’s Objections to the 12/24/12 Order and the 3/27/13
Order & Recommendation, this Court would not find that Crown’s
Objections were frivolous.

Plaintiffs’ request for sanctions is

therefore DENIED.
CONCLUSION
On the basis of the foregoing, Crown’s Objections to
the Magistrate Judge’s: (1) Order Granting Plaintiffs’ Motion to
Modify Rule 16 Order to Permit Plaintiffs to File First Amended
Complaint and Denying Plaintiffs’ Motion to for [sic] Remand to
the First Circuit Court Without Prejudice; and (2) Order Granting
in Part and Denying in Part Reconsideration of the Court’s
December 24, 2012 Order; Order Denying Defendant’s Motion to
Strike First Amended Complaint; Finding and Recommendation to
Remand this Action, filed April 10, 2013, are HEREBY GRANTED IN
PART AND DENIED IN PART.

Crown’s Objections are GRANTED insofar
31

as this Court: VACATES the portion of the magistrate judge’s
December 24, 2012 Order granting Plaintiffs leave to amend their
Complaint to allege strict product liability, negligence, failure
to warn, and wrongful death claims against Diversified and
Interlake; VACATES the portion of the magistrate judge’s 3/27/13
Order & Recommendation denying Crown’s Motion to Strike as to the
strict product liability, negligence, failure to warn, and
wrongful death claims against Diversified and Interlake in
Plaintiffs’ First Amended Complaint, filed December 4, 2012; and
GRANTS Crown’s Motion to Strike as to those claims in the First
Amended Complaint.

This Court DENIES Crown’s Objections in all

other respects.
In particular, this Court: AFFIRMS the magistrate
judge’s 12/24/12 Order, to the extent that the order allowed
Plaintiffs to add a breach of warranty claim against Diversified
and Interlake; and AFFIRMS the magistrate judge’s 3/27/13 Order
and Recommendation, to the extent that the order denied
reconsideration as to addition of the breach of warranty claim
against Diversified and Interlake and denied Crown’s Motion to
Strike as to that claim.

Further, this Court ADOPTS the

magistrate judge’s recommendation to remand this action to the
State of Hawai`i First Circuit Court.
This Court also DENIES Plaintiffs’ request for
sanctions against Crown.

32

This Court DIRECTS the Clerk of Court to send a
certified copy of this order to the State of Hawai`i First
Circuit Court and to close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 12, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

ESTATE OF ROEL TUNGPALAN, ET AL. V. CROWN EQUIPMENT CORPORATION;
CIVIL NO. 11-00581 LEK-BMK; ORDER (1) GRANTING IN PART AND
DENYING IN PART DEFENDANT’S OBJECTIONS; (2) AFFIRMING IN PART AND
VACATING IN PART THE MAGISTRATE JUDGE’S ORDER MODIFYING THE
SCHEDULING ORDER AND PERMITTING PLAINTIFFS TO FILE A FIRST
AMENDED COMPLAINT; (3) AFFIRMING IN PART AND VACATING IN PART THE
MAGISTRATE JUDGE’S ORDER DENYING RECONSIDERATION OF THE
DECEMBER 24, 2012 ORDER, AND DENYING DEFENDANT’S MOTION TO STRIKE
FIRST AMENDED COMPLAINT; AND (4) ADOPTING, AS MODIFIED, THE
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO REMAND THIS
ACTION

33