Bennett-Bagorio et al v. City and County of Honolulu; et al.

Filing 37

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO STRIKE AND/OR DISMISS FIRST AMENDED COMPLAINT FILED FEBRUARY 20, 2013 AND FOR SANCTIONS UNDER SEAL re: 31 . Signed by JUDGE LESLIE E. KOBAYASHI on 5/15/2013.(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 el ectronic notifications were served by first class mail on the date of this docket entry. LODGED COPIES OF THE MOTION TO DISMISS AND STATEMENT OF FACTS (original & 2 copies) PLACED IN CLERK'S OFFICE RECEPTION AREA (ATTORNEY-JACKET LOCATION) FOR RETURN TO AYABE CHONG NISHIMOTO SIA & NAKAMURA

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiffs,
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vs.
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THE CITY AND COUNTY OF
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HONOLULU, on behalf of THE
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HONOLULU POLICE DEPARTMENT
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and THE CITY AND COUNTY OF
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HONOLULU OFFICE OF
CORPORATION COUNSEL; D. SCOTT )
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DODD; CARRIE K.S. OKINAGA;
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ROBERT C. GODBEY; CHIEF OF
POLICE LOUIS KEALOHA, FORMER )
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CHIEF BOISSE CORREA, DEPUTY
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CHIEF DAVID KAJIHIRO, MAJOR
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JOHN MCENTIRE; MAJOR KERRY
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INOUYE; LIEUTENANT CAROLYN
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ONAGA; LIEUTENANT YVONNE
BOLTON; RANDALL GRATZ; DENISE )
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TSUKAYAMA; and Does 1-100,
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Defendants.
_____________________________ )
OFFICER CASSANDRA
BENNETT-BAGORIO; SERGEANT
SHERMON DEAN DOWKIN; and
FORMER OFFICER FEDERICO
DELGADILLO MARTINEZ, JR.,

CIVIL NO. 13-00071 LEK-KSC

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
LEAVE TO FILE MOTION TO STRIKE AND/OR DISMISS FIRST AMENDED
COMPLAINT FILED FEBRUARY 20, 2013 AND FOR SANCTIONS UNDER SEAL
Before the Court is Defendant City and County of
Honolulu’s (“the County”) Motion for Leave to File Motion to
Strike and/or Dismiss First Amended Complaint Filed February 20,
013 and for Sanctions Under Seal (“Motion to Seal”), filed May 9,
2013.

[Dkt. no. 31.]

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.
The County has lodged a copy of its Motion to Strike
and/or Dismiss First Amended Complaint Filed February 20, 2013
and for Sanctions (“Motion to Dismiss”), along with a Separate
and Concise Statement of Facts in support of the Motion to
Dismiss (“Statement of Facts”).

The County seeks leave to file

each of these documents, in its entirety, under seal.
“Those who seek to maintain the secrecy of documents
attached to dispositive motions must meet the high threshold of
showing that ‘compelling reasons’ support secrecy.”

Kamakana v.

City & Cnty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006)
(citation omitted).

The County argues that this Court should

seal the Motion to Dismiss and the Statement of Facts because
they discuss matters, and include exhibits, from the related
proceeding of Dowkin, et al. v. Honolulu Police Department, et
al., CV 10-00087 LEK-RLP.
in place in Dowkin.

There is a stipulated protective order

[Motion to Seal, Decl. of Steven L. Goto

(“Goto Decl.”), Exh. A (Dowkin stipulated protective order).]
The plaintiffs’ counsel in Dowkin, who is also counsel for the
plaintiffs in the instant case, was sanctioned for violating the
stipulated protective order.

[Goto Decl., Exh. B (Dowkin order

filed 8/9/12 regarding violation of the stipulated protective

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order).]
This Court notes that the standard for the issuance of
a protective order under Fed. R. Civ. P. 26(c) is “good cause.”
The Ninth Circuit has stated that “[a] ‘good cause’ showing will
not, without more, satisfy a ‘compelling reasons’ test.”
Kamakana, 447 F.3d at 1180 (citation omitted).

Thus, the mere

fact that there is a protective order in place in Dowkin does
not, by itself, require this Court to seal the Motion to Dismiss
and the Statement of Facts.

Under the circumstances of the

instant case, however, and after review of the County’s proposed
filings, this Court FINDS that there are compelling reasons to
seal: 1) documents filed under seal in Dowkin; and 2) discovery
subject to the Dowkin stipulated protective order.

This Court

therefore GRANTS the County’s Motion to Seal as to these
categories.
This Court DENIES the County’s Motion to Seal insofar
as it seeks leave to file the Motion to Dismiss and the Statement
of Facts, in their entirety, under seal.

Further, the Motion is

DENIED insofar as the County seeks leave to file under seal:
documents that are public record, including, but not limited to,
documents filed in Dowkin which were not filed under seal;
documents that are not subject to the Dowkin stipulated
protective order; and portions of the Motion to Dismiss quoting
from, or discussing confidential information contained in,

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documents filed under seal in Dowkin or otherwise subject to the
Dowkin stipulated protective order.
This Court ORDERS the County to re-file the Motion to
Dismiss and the Statement of Facts, according to the terms of
this order, by no later than May 24, 2013.

The Court also

DIRECTS the Clerk’s Office to return the lodged copies of the
Motion to Dismiss and the Statement of Facts to the County’s
counsel.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 15, 2013.

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

OFFICER CASSANDRA BENNETT-BAGORIO, ET AL. V. THE CITY AND COUNTY
OF HONOLULU, ET AL; CIVIL NO. 13-00071 LEK-KSC; ORDER GRANTING IN
PART AND DENYING IN PART MOTION FOR LEAVE TO FILE MOTION TO
STRIKE AND/OR DISMISS FIRST AMENDED COMPLAINT FILED FEBRUARY 20,
2013 AND FOR SANCTIONS UNDER SEAL

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