Bynum v. Kaua'i, County of et al
Filing
167
ORDER DISMISSING WITH PREJUDICE DEFENDANT SHAYLENE ISERI-CARVALHO, IN HER INDIVIDUAL CAPACITY. Signed by JUDGE J. MICHAEL SEABRIGHT on 2/24/2014. ~ Order Grants Plaintiff's Motion to Dismiss complaint with Prejudice as to defen dant Shaylene Iseri-Carvalho, in her individual capacity. Motion: doc no. 158 ~ (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). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TIMOTHY BYNUM,
)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF KAUAI; SHEILA
)
MIYAKE; SHAYLENE ISERI)
CARVALHO, individually and in their )
professional capacities; DOE
)
DEFENDANTS 1-10,
)
)
Defendants.
)
_______________________________ )
CIVIL NO. 12-00523 JMS/RLP
ORDER DISMISSING WITH
PREJUDICE DEFENDANT
SHAYLENE ISERI-CARVALHO,
IN HER INDIVIDUAL CAPACITY
ORDER DISMISSING WITH PREJUDICE DEFENDANT SHAYLENE
ISERI-CARVALHO, IN HER INDIVIDUAL CAPACITY
I. INTRODUCTION
On September 19, 2012, Plaintiff Timothy Bynum (“Plaintiff”), a
County of Kauai (the “County”) Councilman, filed this action asserting that Sheila
Miyake (“Miyake”), the County’s supervising planning inspector, and Shaylene
Iseri-Carvalho (“Carvalho”), the County prosecuting attorney, violated his civil
rights when Miyake and Carvalho investigated and prosecuted Plaintiff for zoning
law violations of his residence in an alleged attempt to chill his advocacy on the
County Council and harm Plaintiff’s chances of reelection. Plaintiff asserted
claims for violation of Plaintiff’s constitutional rights and state law claims against
the County, and Miyake and Carvalho in their individual and official capacities.
All Defendants except Carvalho in her individual capacity filed
dispositive motions. See Doc. Nos. 62, 66, 72, 97, 112. On the eve of the hearing
on these Motions, Defendants withdrew their Motions because a settlement had
been reached. The settlement involved all parties except Carvalho in her
individual capacity, who was not involved in settlement negotiations. See Doc.
No. 165. Although Plaintiff proffered a stipulation for dismissal of the claims
against Carvalho in her individual capacity, she refused to sign it because the
dismissal was without prejudice and required Carvalho to bear her own attorneys’
fees and costs. Id. at 7.
As a result, Plaintiff filed his Motion to Dismiss Complaint with
Prejudice as to Carvalho in her Individual Capacity. Doc. No. 158. Plaintiff
argues that he is satisfied with his compensatory recovery from the settlement with
the other parties (including Carvalho in her official capacity), and that he need not
proceed further against Carvalho in her individual capacity. Plaintiff therefore
seeks a dismissal of Carvalho in her individual capacity with prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2). In opposition, Carvalho explains that
she wishes to proceed in this action to clear her name in the media and to recoup
her attorneys’ fees. Doc. No. 165. Based on the following, the court GRANTS
2
Plaintiff’s Motion to Dismiss Carvalho in her individual capacity with prejudice.
II. ANALYSIS
Federal Rule of Civil Procedure 41(a)(2) governs voluntary dismissals
pursuant to court order:
Except as provided in Rule 41(a)(1), an action may be
dismissed at the plaintiff’s request only by court order,
on terms that the court considers proper. If a defendant
has pleaded a counterclaim before being served with the
plaintiff’s motion to dismiss, the action may be dismissed
over the defendant’s objection only if the counterclaim
can remain pending for independent adjudication. Unless
the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.
“A motion for voluntary dismissal under Rule 41(a)(2) is addressed to
the district court’s sound discretion and the court’s order will not be disturbed
unless the court has abused its discretion.” Stevedoring Servs. of Am. v. Armilla
Int’l B.V., 889 F.2d 919, 921 (9th Cir. 1989) (citing Sams v. Beech Aircraft Corp.,
625 F.2d 273, 277 (9th Cir. 1980)). “A district court should grant a motion for
voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will
suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975
(9th Cir. 2001) (citing Waller v. Fin. Corp. of Am., 828 F.2d 579, 583 (9th Cir.
1987)); See also Stevedoring Servs. of Am., 889 F.2d at 921 (“The purpose of the
rule is to permit a plaintiff to dismiss an action without prejudice so long as the
3
defendant will not be prejudiced, or unfairly affected by dismissal.” (citations
omitted)). As Smith explains:
“[L]egal prejudice” means “prejudice to some legal
interest, some legal claim, some legal argument.”
[Westlands Water Dist. v. United States, 100 F.3d 94, 97
(9th Cir. 1996)]. In so holding, we also explained that
“[u]ncertainty because a dispute remains unresolved” or
because “the threat of future litigation . . . causes
uncertainty” does not result in plain legal prejudice. Id.
at 96-97. Also, plain legal prejudice does not result
merely because the defendant will be inconvenienced by
having to defend in another forum or where a plaintiff
would gain a tactical advantage by that dismissal.
[Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143,
145 (9th Cir. 1982)].
263 F.3d at 975. Where a dismissal is with prejudice -- such that the claims cannot
be reasserted -- it is less likely that the defendant will suffer any legal prejudice.1
Id. at 976 (“That the district court here dismissed, with prejudice, the federal
1
Other courts have suggested that a court lacks discretion to deny a motion to dismiss
where a plaintiff seeks dismissal with prejudice and the rights of third parties are not affected.
See, e.g., Smoot v. Fox, 340 F.2d 301, 302-03 (6th Cir. 1964) (“[N]o case has been cited to us,
nor have we found any, where a plaintiff, upon his own motion, was denied the right to dismiss
his case with prejudice.”); Wis. Bell, Inc. v. TCG Milwaukee, Inc., 301 F. Supp. 2d 893, 899
(W.D. Wis. 2002) (“When dismissal is with prejudice, the general rule is that the court lacks
discretion to deny the motion for voluntary dismissal, although it may impose conditions on the
dismissal.” (citing 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
§ 2367 at 318 (2d ed.1994)); Shepard v. Egan, 767 F. Supp. 1158, 1165 (D. Mass. 1990) (“[I]t is
difficult, both practically and logistically, to imagine a court denying a plaintiff's motion to
dismiss her own action with prejudice. Could the Court force the plaintiff to continue discovery,
or offer evidence? Can or should the Court require plaintiff to litigate a claim when plaintiff
herself has attempted to dismiss it? . . . Suffice it to say that the Court will not compel plaintiff
to pursue a claim that she wishes to dismiss with prejudice.”)
4
claims so they cannot be reasserted in another federal suit only strengthens our
conclusion that the dismissal caused no legal prejudice . . . .”).
Applying these principles, the court finds that Carvalho has utterly
failed to establish legal prejudice if the court grants Plaintiff’s Motion to Dismiss.
Plaintiff seeks dismissal of Carvalho in her individual capacity because Plaintiff
has already obtained adequate compensation from the other Defendants. The
dismissal sought is with prejudice2 -- meaning that there would be no possibility
that Plaintiff could raise these same claims against Carvalho again either here or in
another forum.
Further, Carvalho’s arguments in opposition of the Motion to Dismiss
do not establish legal prejudice. For example, Carvalho asserts that she wishes to
proceed in this action because Plaintiff publicized his claims against Carvalho and
a decision on the merits in her favor would assist in vindicating her name with the
public. Carvalho asserts that she will “continue to live[] under a cloud of suspicion
and doubt” until judgment is rendered in this action, and that granting Plaintiff’s
Motion to Dismiss will allow Plaintiff to “claim victory.” Doc. No. 165, Carvalho
Opp’n at 5. The court recognizes that both Plaintiff and Carvalho are political
2
Carvalho mistakenly asserts that the Plaintiff seeks a dismissal without prejudice. See
Doc. No. 165, Carvalho Opp’n at 2 n.1. The title of Plaintiff’s Motion makes clear that he is
seeking dismissal with prejudice.
5
figures on Kauai, and that Plaintiff’s allegations in this action have played out in
the media. But such negative publicity and the lack of a decision on the merits
does not amount to legal prejudice, and dismissal will not injure any actual legal
right. See In re Sizzler Rests. Int’l, Inc., 262 B.R. 811, 822 n.8 (Bankr. C.D. Cal.
2001) (“[P]rejudice to one’s career reputation does not constitute prejudice to a
legal interest, legal claim or legal argument.”); See also Westlands, 100 F.3d at 97
(determining that uncertainty over water rights if the matter remained unresolved
was insufficient to constitute plain legal prejudice); Watson v. Clark, 716 F. Supp.
1354, 1355 (D. Nev. 1989) (“[P]lain legal prejudice [does not] arise from
defendant’s missed opportunity for a legal ruling on the merits.”). Proceeding with
this action would provide Carvalho no assurances that she would prevail in this
action, much less regain standing in the public eye.
Carvalho also appears to argue that there is no prejudice if the parties proceeded on
the Motions for Summary Judgment given that they were fully briefed and will not
require much additional resources to address. Doc. No. 165, Carvalho Opp’n at 8.
Carvalho ignores, however, that not only were the Motions for Summary Judgment
withdrawn, but that Carvalho in her individual capacity did not file her own
Motion for Summary Judgment. Thus, contrary to Carvalho’s argument, it would
be unduly burdensome for both the court and Plaintiffs to sort through the various
6
Motions and determine what arguments might be applicable to Carvalho in her
individual capacity. And allowing Carvalho to file her own Motion for Summary
Judgment -- where Plaintiff has asserted that he has been adequately compensated
by the settlement with the other parties -- would only cause all parties to expend
needless additional resources to litigate Plaintiff’s claims he no longer wishes to
assert.
Finally, Carvalho argues that if the court grants Plaintiff’s Motion to
Dismiss, the court should make an express finding that Plaintiff’s claims were
frivolous such that she is entitled to her attorneys’ fees pursuant to 42 U.S.C.
§ 1988. The court rejects this argument as well. Rule 41(a)(2) does not on its own
provide a basis for attorneys’ fees -- the Ninth Circuit has explicitly held that “the
expense incurred in defending against a lawsuit does not amount to legal
prejudice.” Westlands, 100 F.3d at 97; see also Rodriguez v. Serv. Emp. Int’l, 2011
WL 4831201, at *3 (N.D. Cal. Oct.12, 2011) (denying defendants’ request for
costs as a condition of dismissal pursuant to Rule 41(a)(2) because plaintiffs
stipulated to dismissal with prejudice and the case was “not exceptional”). As a
result, numerous courts have held that payment of fees and costs should not be
imposed as a condition for voluntary dismissal with prejudice. See Chang v.
Pomeroy, 2011 WL 618192, at *1 (E.D. Cal. Feb. 10, 2011) (collecting cases).
7
Nor has Carvalho established that she entitled to her fees pursuant to
42 U.S.C. § 1988, which provides that a prevailing civil rights defendant may
recover fees only in “exceptional circumstances” when the plaintiff’s claims are
“frivolous, unreasonable, or groundless.” Braunstein v. Ariz. Dep’t of Transp., 683
F.3d 1177, 1187 (9th Cir. 2012). A dismissal pursuant to Rule 41(a)(2) is not on
the merits and nothing in the plain language of Rule 41(a)(2) suggests that
Carvalho is the prevailing party.
And in any event, the court finds that Carvalho has failed to meet the
§ 1988 standard for attorneys’ fees. Plaintiff claimed that Carvalho violated his
civil rights by, among other things, improperly investigating him for zoning
violations, bringing a criminal action against him that was not supported by
probable cause, and seeking his recusal from Council matters involving her office
by publicizing Plaintiff’s alleged bias. Plaintiff presented evidence that
(1) Carvalho was openly hostile to Plaintiff, Doc. No. 116-1, Pl.’s Decl. ¶ 4;
(2) Carvalho investigated an anonymous complaint of a zoning violation on
Plaintiff’s property by reviewing a police report concerning Plaintiff’s property
and contacting the Director of the County Planning Department to determine
whether Plaintiff had committed any zoning violations (even though misdemeanors
were handled by junior prosecutors), Doc. No. 67-2, Carvalho Decl. ¶¶ 4, 6; Doc.
8
No. 116-14, Pl.’s Ex. 12; (3) Carvalho’s office filed criminal charges against
Plaintiff regarding these zoning violations, even though two of the charges were
the result of a possible violation of Plaintiff’s Fourth Amendment rights, Doc. No.
67-14, Carvalho Ex. J; Doc. No. 67-12, Carvalho Ex. H at 14-15 (Miyake
informing deputy prosecutor of the manner of her investigation); (4) the criminal
charges were dismissed against Plaintiff after Carvalho’s office was removed from
the case for a conflict of interest, Doc. No. 116-6, Pl.’s Ex. 4, Doc. No. 116-15,
Pl.’s Ex. 13; and (5) Carvalho sought Plaintiff’s recusal from Council matters
regarding her office in light of the criminal charges against him, and further
released a letter to the media seeking Plaintiff’s recusal and outlining several
alleged incidents with Plaintiff. Doc. No. 67, Carvalho CSF ¶¶ 16-17, Doc. No.
67-6, Carvalho Ex. B.
Whether or not this evidence establishes Plaintiff’s claims (an issue
the court need not decide), it shows that Plaintiff had at least some factual basis for
his claims, and that they do not appear to be frivolous, unreasonable, or groundless.
The court therefore finds that Carvalho would not be entitled to her attorneys’ fees
even if she prevailed at trial. As a result, proceeding in this action, where Plaintiff
has been compensated and seeks dismissal with prejudice, would serve no purpose
other than to feed the fire of Plaintiff’s and Carvalho’s public feud. Needless to
9
say, such purpose does not justify the expenditure of the parties’ or the court’s
resources. The court will not be drawn into this continuing political feud.
III. CONCLUSION
Based on the above, the court DISMISSES with prejudice Defendant
Shaylene Iseri-Carvalho in her individual capacity. The parties shall bear their
own fees and costs.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 24, 2014.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Bynum v. Cnty. of Kauai et al., Civ. No. 12-00523 JMS/RLP, Order Dismissing with Prejudice
Defendant Shaylene Iseri-Carvalho, in Her Individual Capacity
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?