Jim Aana; et al. vs. Pioneer Hi-Bred International, Inc.

Filing 609

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE DOCKET NOS. 235, 237 AND 591 592 Motion to Strike, re 237 , re 591 , re 235 . Signed by JUDGE LESLIE E. KOBAYASHI on 02/ 28/2014. -- Defendants' Motion to Strike Docket Nos. 235, 237 and 591, filed January 15, 2014, is HEREBY GRANTED IN PART AND DENIED IN PART. This Court GRANTS the Motion insofar as this Court STRIKES Plaintiffs' Ja nuary 8, 2014 Notice of Voluntary Dismissal Pursuant to F.R.C.P. 41(a)(1)(A)(i). The Motion is DENIED in all other respects. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electroni c 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
JIM AANA, et al., on behalf
of themselves and all others
similarly situated,
Plaintiffs,
vs.
PIONEER HI-BRED
INTERNATIONAL, INC., a DuPont
Business and Iowa
Corporation, GAY & ROBINSON,
INC., a Hawaii corporation;
ROBINSON FAMILY PARTNERS, a
general partnership
registered in Hawaii; and DOE
DEFENDANTS 1-10,
Defendants.
_____________________________
JEFFREY CASEY, et al., on
behalf themselves and all
others similarly situated,
Plaintiffs,
vs.
PIONEER HI-BRED
INTERNATIONAL, INC., et al.,
Defendants.
_____________________________

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CIVIL NO. 12-00231 LEK-BMK
CIVIL NO. 12-00665 LEK-BMK

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO STRIKE DOCKET NOS. 235, 237 AND 591
On January 15, 2014, Defendants Pioneer Hi-Bred
International, Inc. (“Pioneer”), Gay & Robinson, Inc., and

Robinson Family Partners1 (all collectively “Defendants”) filed
their Motion to Strike Docket Nos. 235, 237 and 591 (“Motion”).
[Dkt. no. 592.]

Plaintiffs Jim Aana, et al., on behalf of

themselves and all others similarly situated (collectively
“Plaintiffs”)2 filed their memorandum in opposition on
February 3, 2014, and Defendants filed their reply on
February 20, 2014.

[Dkt. nos. 597, 601.]

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 this Court are familiar with the
factual and procedural background of this case, and this Court
will only discuss the events that are relevant to the instant
Motion.

1

This Court will refer to Gay & Robinson, Inc. and Robinson
Family Partners collectively as “the Robinson Defendants.”
2

Insofar as the instant case and Casey v. Pioneer Hi-Bred
International, Inc., CV 12-00655 LEK-BMK, have been consolidated,
this Court will refer to the plaintiffs in both cases
collectively as “Plaintiffs.” When necessary, this Court will
distinguish between “the Aana Plaintiffs” and “the Casey
Plaintiffs.” The defendants are the same in both cases.
2

The Aana Plaintiffs filed their original Complaint in
state court on December 13, 2011, and Defendants removed the
action on May 4, 2012.

[Notice of Removal of Mass Action, filed

5/4/12 (dkt. no. 1) (“Notice of Removal”), Exh. A.]

Prior to

removal, Pioneer filed an answer to the Complaint on January 31,
2012, and the Robinson Defendants filed their answer on
February 17, 2012.

[Dkt. nos. 1-4, 1-5.]

On February 6, 2013,

Plaintiffs filed their Second Amended Complaint (Property Related
Claims) (“Second Amended Complaint”).3

[Dkt. no. 128.]

On August 26, 2013, Plaintiffs filed a notice that they
were voluntarily dismissing the claims of the following
Plaintiffs: Wilson Aana, John Bernaldes, Lani Marian Bernaldes,
Douglas Dusenberry, Linda Dusenberry, James Hensley,
Gary Higgins, Michelle Higgins, Russell Hill, Jodi Hookano,
Michelle Hookano, Renfred Hookano, Kevin Iwai, Ambrose Kanahele,
Raquel Kanahele, Anya Kaohi, Donia Kaohi, Koharu Kawamura,
Kauakea Mata, Dexter Nishi, Jade Riley, Mike Riley, Teresa Sakai,
Norman Salvacion, Crystal Shimatsu, Wayne Sugawara, Julie Udarbe,
and Melinda Vidinha (“8/26/13 Notice of Dismissal”).
235.]

[Dkt. no.

The 8/26/13 Notice of Dismissal cited Fed. R. Civ. P.

41(a)(1)(A)(i).

[Id. at 2.]

On August 28, 2013, Plaintiffs

3

The Casey Amended Complaint alleged the same claims as the
Aana Second Amended Complaint. [Casey, Notice of Removal of
Action (28 U.S.C. Section 1441), filed 12/7/12 (dkt. no. 1),
Exh. C (Amended Complaint).]
3

filed a Rule 41(a)(1)(A)(i) notice of dismissal on behalf of
Plaintiff Corrado Altomare (“8/28/13 Notice of Dismissal”).
[Dkt. no. 237.]
Plaintiffs filed their Third Amended Complaint
(Property Related Claims) (“Third Amended Complaint”) on
September 6, 2013.

[Dkt. no. 331.]

Defendants did not file an

answer to the Second Amended Complaint, nor have they filed an
answer to the Third Amended Complaint.4
On January 8, 2014, Plaintiffs filed a Rule
41(a)(1)(A)(i) notice of dismissal on behalf of Plaintiffs
Joy Kagawa, Dellick Numazawa, Lorelei Numazawa, Glenn Odo,
Lorene Odo, and Bryan Okazaki (“1/8/14 Notice of Dismissal”).
[Dkt. no. 591.]
In the instant Motion, Defendants argue that this Court
should strike the 8/26/13 Notice of Dismissal, the 8/28/13 Notice
of Dismissal, and the 1/8/14 Notice of Dismissal because
Plaintiffs lost their ability to voluntarily dismiss claims
against Defendants when Defendants filed their answers to the
original complaint.
DISCUSSION
Fed. R. Civ. P. 41(a)(1)(A) addresses the circumstances
under which a plaintiff may voluntarily dismiss his claims

4

This Court notes that, on February 27, 2014, it issued an
order ruling on Defendants’ motion to dismiss the Third Amendment
Complaint. [Dkt. no. 608.]
4

without a court order.

Rule 41(a)(1)(A) states:

Subject to Rules 23(e), 23.1(c), 23.2, and 66 and
any applicable federal statute, the plaintiff may
dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing
party serves either an answer or a motion for
summary judgment; or
(ii) a stipulation of dismissal signed by all
parties who have appeared.
The rule does not address the specific issue presented in the
instant Motion, nor has the Ninth Circuit addressed the issue.
The Fourth Circuit Court of Appeals has held that it
was proper for the district court to vacate the plaintiff’s
(Joseph R. Armstrong (“Armstrong”)) notice of dismissal of the
amended complaint where the defendant, the Frostie Company
(“Frostie”), filed an answer and a motion for summary judgment
addressing the original complaint, but had not filed an answer to
the amended complaint.
916 (4th Cir. 1971).

Armstrong v. Frostie Co., 453 F.2d 914,

In so ruling, the Fourth Circuit noted that

the applicable rule, which corresponds to the current Rule
41(a)(1)(A)(i), was
designed to permit a disengagement of the parties
at the behest of the plaintiff only in the early
stages of a suit, before the defendant has
expended time and effort in the preparation of his
case. See Harvey Aluminum, Inc. v. American
Cyanamid Co., 203 F.2d 105, 107 (2d Cir.), cert.
denied, 345 U.S. 964, 73 S. Ct. 949, 97 L. Ed.
1383 (1953); cf. Butler v. Denton, 150 F.2d 687,
689 (10th Cir. 1945). Once the defendant has
filed an answer or a motion for summary judgment,
which normally is marked by extensive preparation,
5

granting dismissal without prejudice becomes
discretionary with the court. Fed. R. Civ. P.
41(a)(2); see 2B W. Barron & A. Holtzoff, Federal
Practice and Procedure § 912 (C. Wright, ed.
1961).
Id.

The Fourth Circuit stated that “[d]ismissal of [the

original] complaint, followed by an amended complaint, increased
rather than nullified Frostie’s burden.”

Id.

The First Circuit Court of Appeals has observed that
commentators interpret Armstrong as standing for the proposition
that “a plaintiff cannot supersede the cutting off of its right
to give notice of voluntary dismissal by filing an amended
complaint after an answer or motion for summary judgment has been
filed by the defendant.”

Universidad Cent. Del Caribe, Inc. v.

Liaison Comm. on Med. Educ., 760 F.2d 14, 17-18 (1st Cir. 1985)
(citing 5 Moore’s Federal Practice ¶ 41.02[3], at 41–32 (1984)).
Although it appears that neither the Ninth Circuit nor the
district courts within the Ninth Circuit have considered this
portion of Armstrong,5 other district courts continue to follow
the Fourth Circuit’s reasoning in Armstrong regarding a
plaintiff’s ability to dismiss an amended complaint.

5

See, e.g.,

The Ninth Circuit has quoted Armstrong for the statement
of Rule 41(a)(1)’s purpose, but it was not in the context of the
issue currently before this Court. See Pedrina v. Chun, 987 F.2d
608, 609-10 (9th Cir. 1993) (“We agree with the First, Third,
Fifth, and Eighth circuits that Rule 41(a)(1) allows a plaintiff
to dismiss without a court order any defendant who has yet to
serve an answer or a motion for summary judgment.” (footnote
omitted)).
6

Quick v. EMCO Enters., Inc., 251 F.R.D. 371, 373-74 (S.D. Iowa
2008).
This Court agrees with and adopts the reasoning in
Armstrong.

Plaintiffs’ reliance on Concha v. London, 62 F.3d

1493 (9th Cir. 1993), and other similar cases, [Mem. in Opp. at 4
& n.5,] is misplaced.

Concha merely recognizes that a plaintiff

may voluntarily dismiss his action even though the defendant
filed a motion to dismiss.

62 F.3d at 1506.

Concha acknowledged

that “[o]nce the defendant files an answer or a motion for
summary judgment, the plaintiff may no longer voluntarily dismiss
without a court order under Rule 41(a)(1), but must file a motion
for voluntary dismissal under Rule 41(a)(2).”

Id.

In addition,

Plaintiffs are correct that its original Complaint and its Second
Amended Complaint are treated as non-existent.

See Rhodes v.

Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (noting that, as a
general rule, “when a plaintiff files an amended complaint, [t]he
amended complaint supercedes the original, the latter being
treated thereafter as non-existent” (citation and internal
quotation marks omitted)).

The purpose of Rule 41(a)(1)(A)(i),

however, is to allow a plaintiff to voluntarily withdraw his case
before the defendant expends significant time and resources on
the case, not just on the version of the plaintiff’s complaint
currently before the district court.

7

This Court therefore concludes that, in light of the
fact that Defendants all answered the original Complaint,
Plaintiffs cannot voluntarily dismiss their current claims by
filing a notice of dismissal pursuant to Rule 41(a)(1)(A)(i).
This does not end the inquiry because this Court’s August 9, 2013
order addressing the motions to dismiss the Second Amended
Complaint (“8/9/13 Order”) dismissed some of Plaintiffs’ claims
and gave Plaintiffs leave to file the Third Amended Complaint.
[Dkt. no. 224.]

Although this Court expressly stated that

Plaintiffs could not add new parties in the Third Amended
Complaint, this Court did not prohibit Plaintiffs from removing
parties.

[Id. at 61.]

Thus, although it was technically

improper for Plaintiffs to file the 8/26/13 Notice of Dismissal
and the 8/28/13 Notice of Dismissal, this Court declines to
strike those documents because the 8/9/13 Order effectively
granted leave to dismiss the parties from the action.

This Court

therefore DENIES Defendants’ Motion as to the 8/26/13 Notice of
Dismissal and the 8/28/13 Notice of Dismissal.
For the reasons stated above, this Court concludes that
it was improper for Plaintiffs to file the 1/8/14 Notice of
Dismissal.

This Court therefore GRANTS Defendants’ Motion as to

the 1/8/14 Notice of Dismissal, which is HEREBY STRICKEN.

If

Plaintiffs wish to dismiss the persons identified in the 1/8/14
Notice of Dismissal, they must either obtain Defendants’

8

stipulation to do so or move for a court order of dismissal.

See

Fed. R. Civ. P. 41(a)(1)(A)(ii), (a)(2).
As dismissal of those persons identified in the 1/8/14
Notice of Dismissal appears to be in the interest of justice and
to promote judicial economy, the Court gently reminds counsel of
the Preamble to the Hawai`i Rules of Professional Conduct, and
asks that they practice law with aloha.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Strike Docket Nos. 235, 237 and 591, filed January 15, 2014, is
HEREBY GRANTED IN PART AND DENIED IN PART.

This Court GRANTS the

Motion insofar as this Court STRIKES Plaintiffs’ January 8, 2014
Notice of Voluntary Dismissal Pursuant to F.R.C.P.
41(a)(1)(A)(i).

The Motion is DENIED in all other respects.

IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 28, 2014.

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

JIM AANA, ET AL. VS. PIONEER HI-BRED INTERNATIONAL, INC.; CV 1200231 LEK-BMK; JEFFREY CASEY, ET AL. VS. PIONEER HI-BRED
INTERNATIONAL;, INC.; CV 12-00665 LEK-BMK; ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION TO STRIKE DOCKET NOS. 235,
237 AND 591

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