Bennett-Bagorio et al v. City and County of Honolulu; et al.
ORDER GRANTING DEFENDANT CITY & COUNTY OF HONOLULU'S MOTION TO STRIKE AND/OR DISMISS FIRST AMENDED COMPLAINT AND DENYING THE MOTION FOR SANCTIONS -- re 38 , re 5 Signed by JUDGE DERRICK K. WATSON on 01/28/2014. -- The Court hereby GRANTS the City Defendants' Motion to Strike and/or Dismiss the First Amended Complaint Filed on February 20, 2013 and DENIES the City Defendants' Motion for Sanctions. Plaintiffs' First Amended Complaint is D ISMISSED WITH PREJUDICE. (eps)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 were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
THE CITY AND COUNTY OF
HONOLULU, et al.
CIVIL NO. 13-00071 DKW-KSC
ORDER GRANTING DEFENDANT
CITY & COUNTY OF
HONOLULU’S MOTION TO
STRIKE AND/OR DISMISS FIRST
AMENDED COMPLAINT AND
DENYING THE MOTION FOR
ORDER GRANTING DEFENDANT CITY & COUNTY OF HONOLULU’S
MOTION TO STRIKE AND/OR DISMISS FIRST AMENDED
COMPLAINT AND DENYING THE MOTION FOR SANCTIONS
Before the Court is Defendant City and County of Honolulu’s
(“City”), on behalf of the Honolulu Police Department (“HPD”) and the City and
County of Honolulu Office of Corporation Counsel (“Corp. Counsel”)
(collectively, “City Defendants”), Motion to Strike and/or Dismiss the First
Amended Complaint, filed on February 20, 2013, and for Sanctions. Plaintiffs
Cassandra Bennett-Bagorio, Shermon Dean Dowkin, and Federico Delgadillo
Martinez, Jr. (collectively, “Plaintiffs”) opposed the Motion. A hearing was held
on August 23, 2013. After careful consideration of the supporting and opposing
memoranda, the accompanying documentation, and the relevant legal authority, the
Motion to Strike and/or Dismiss (“Motion”) is hereby GRANTED. The Motion
for Sanctions is DENIED. Plaintiffs’ First Amended Complaint is DISMISSED
Plaintiffs initiated the present action on February 11, 2013 and filed
the operative First Amended Complaint (“1AC”) on February 20, 2013. The City
Defendants’ Motion focuses on the similarity of this action to a separate action
brought by the same Plaintiffs, Dowkin v. Honolulu Police Department, et al., CV
10-00087 LEK-RLP (“Dowkin”), which is presently stayed before District Judge
Leslie Kobayashi. The Court will briefly recount the background of Dowkin and
the allegations of the 1AC in the present action.
The history of Dowkin is covered at length in Magistrate Judge
Puglisi’s Order (1) Denying Plaintiffs’ Motion for Leave to File a Fourth Amended
Complaint; (2) Denying Plaintiffs’ Motion for Leave to Supplement Their Reply;
(3) Denying in Part and Taking Under Advisement in Part Plaintiffs’ Motion to
Modify Rule 16 Scheduling Order; and (4) For Plaintiffs’ Counsel to Show Cause
Why They Did Not Violate FRCP 11(b) (“Dowkin 4AC Order”). Dowkin, Dkt. no.
338, July 3, 2012. Magistrate Judge Puglisi summarized the alleged conduct
leading to the claims in Dowkin as follows:
On February 22, 2010, three Honolulu police officers
brought this action against their employer, the Honolulu Police
Department (“HPD”), and thirteen supervisors, officers, and
HPD personnel for alleged race and gender discrimination,
retaliation, and disparate treatment. Dowkin, who allegedly is
the only African-American supervisor in HPD’s Regional
Patrol Bureau District 4, First Watch (“District 4”), and
Delgadillo, who is allegedly the only Mexican-American officer
in District 4, claim that, between 2003 and 2008, their
supervisors and fellow officers gave direct orders and conspired
not to provide them protective “cover” or “backup” when
Dowkin and Delgadillo arrested persons in the field. Dowkin
and Delgadillo’s requests for assistance were allegedly
“routinely ignored,” as Defendants were purportedly
“motivated by racial prejudice.” Dowkin and Delgadillo also
allege that they were demoted to “junior officer status” after
returning to their unit from a special duty assignment.
On August 7, 2008, Dowkin, on behalf of himself and
Delgadillo, delivered a written complaint, alleging race
discrimination by HPD to Defendant Simmons, Commander of
District 4. After Dowkin spoke with Defendant Simmons about
the disparate treatment, Defendant Simmons allegedly took no
action in response to the complaint. Plaintiffs allege that,
although the filing of the complaint was protected activity,
retaliation immediately commenced.
On October 14, 2008, Bennett-Bagorio was allegedly
summoned by HPD Human Resources to provide testimony
regarding Dowkin and Delgadillo’s race discrimination
complaint. Bennett-Bagorio’s testimony allegedly supported
Dowkin and Delgadillo’s claims of race discrimination and
purported failure to provide protective cover on traffic stops.
Bennett-Bagorio alleges that, as a result of her testimony and
her gender, Defendants retaliated against her.
Dowkin 4AC Order at 2–4.
In Dowkin, Plaintiffs filed three amended complaints, but leave was
denied to file a fourth amended complaint (“4AC”). The changes to each
complaint and the protracted procedural history of each amendment are discussed
in the Dowkin 4AC Order, and the Court does not repeat that discussion here.
Dowkin 4AC Order at 4–9. The Court notes, however, the changes from the Third
Amended Complaint to the proposed 4AC in Dowkin, as described by Magistrate
. . . Plaintiffs seek leave to file a Fourth Amended
Complaint (“FAC”), in the form proposed in Exhibit A to their
Motion. The FAC asserts twelve causes of action: (1) Title VII;
(2) Title VI; (3) violations of the Hawaii Civil Rights Law; (4)
general negligence, including negligent training and
supervision; (5) IIED; (6) NIED; (7) conspiracy to interfere
with civil rights; (8) civil conspiracy against rights and to
tamper with witnesses; (9) conspiracy against rights (18 U.S.C.
§ 241); (10) tampering with a witness; (11) 42 U.S.C. § 1983;
and (12) neglect to prevent conspiracy. The FAC includes three
primary changes from the TAC. First, Plaintiffs added Deputy
Chief Dave Kajihiro and Denise Tsukayama as Defendants.
Second, Plaintiffs included additional allegations (¶¶ 84–125)
supposedly based upon facts revealed by Defendants after
Plaintiffs requested leave of court to file their TAC, as well as
37 exhibits, purportedly confirming Plaintiffs’ conspiracy
claims. Finally, Plaintiffs brought four new claims against
Dowkin 4AC Order at 9. Ultimately, Judge Puglisi denied Plaintiffs leave to file
the 4AC, finding, among other things, that the proposed 4AC violated Fed. R. Civ.
P. 8(a) due to its prolixity (the 4AC was 134 pages long with an additional 213
pages from 37 exhibits):
Plaintiffs’ proposed FAC is neither short nor plain and again is
unduly long and confusing, in addition to being argumentative,
largely irrelevant, and conclusory. . . . Rather than
straightforwardly stating their claims and allegations, Plaintiffs
would burden Defendants with the onerous task of combing
through a 347-page pleading just to prepare an answer that
admits or denies such allegations, and to determine what claims
and allegations must be defended or otherwise litigated.
Dowkin 4AC Order at 15–16. Judge Susan Mollway1 affirmed the Dowkin 4AC
Order on appeal. Dowkin, Dkt. no. 393, August 27, 2012. Plaintiffs then sought
certification to take an interlocutory appeal of the Dowkin 4 AC Order, which
Judge Mollway denied. Dowkin, Dkt. no. 412, September 25, 2012. On
January 17, 2013, the Court stayed Dowkin, pending a decision from the Hawaii
Supreme Court related to individual liability under HRS § 378-2. Id., Dkt. no. 444,
January 17, 2013. Plaintiffs initiated this action approximately three weeks later.
As in the proposed 4AC in Dowkin, the 1AC in this action alleges
Violations of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e-2 et seq., race and gender
discrimination in the terms and conditions of employment (all
Plaintiffs against City Defendants). 1AC ¶¶ 91–95.
Violations of Title VI of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000d et seq., race, color and national
origin discrimination under federal assisted programs (all
Plaintiffs against City Defendants). 1AC ¶¶ 96–101.
Dowkin was assigned to Judge Mollway prior to being transferred to Judge Kobayashi on
March 27, 2013. Dowkin, Dkt. no. 448.
General negligence (all Plaintiffs against all Defendants),
including negligent training and supervision (against all
Defendants except Gratz) and negligent retention (against City
Defendants, Correa, and Kealoha). 1AC ¶¶ 102–108.
Intentional Infliction of Emotional Distress (all Plaintiffs
against all Defendants). 1AC ¶¶ 109–113.
Negligent Infliction of Emotional Distress (Plaintiffs Dowkin
and Bennett-Bagorio against all Defendants). 1AC ¶¶ 114–120.
Violations of 42 U.S.C. § 1985, conspiracy to interfere with
civil rights (all Plaintiffs against all Defendants). 1AC ¶¶ 121–
Civil conspiracy against rights and to tamper with witnesses (all
Plaintiffs against all Defendants). 1AC ¶¶ 143–151.
Violations of 18 U.S.C. § 241, conspiracy against rights (all
Plaintiffs against all Defendants). 1AC ¶¶ 152–156.
Violations of 18 U.S.C. § 1512, tampering with a witness (all
Plaintiffs against all Defendants). 1AC ¶¶ 157–161.
Violations of 42 U.S.C. § 1983, violations of rights of equal
protection, due process of law, and freedom of speech (all
Plaintiffs against all Defendants). 1AC ¶¶ 162–171.
Violations of 42 U.S.C. § 1986, neglect and/or refusal to
prevent conspiracy (all Plaintiffs against all Defendants). 1AC
Violations of HRS § 378-2, race and gender discrimination in
the terms and conditions of employment (all Plaintiffs against
City Defendants). 1AC ¶¶ 180–182.
The City, HPD, Former Chief of Police Boisse Correa, Chief of Police Louis
Kealoha, and Major John McEntire are Defendants both in this action and in
Dowkin. Like the proposed 4AC in Dowkin, the 1AC also asserts claims against
Deputy Chief Dave Kajihiro (HPD) and Denise Tsukayama (City/HPD EEO
Officer). Unlike any complaint in Dowkin, the 1AC also names as Defendants: D.
Scott Dodd (Corp. Counsel), Carrie K.S. Okinaga (Corp. Counsel), Robert C.
Godbey (Corp. Counsel), Major Kerry Inouye (HPD), Lieutenant Carolyn Onaga
(HPD), Lieutenant Yvonne Bolton (HPD), and Randall Gratz (HPD).2
As a result of discovery in the Dowkin litigation, Plaintiffs allege here
that they became aware of an improper delay and a wrongful influence in the
discrimination investigation and an alleged conspiracy “to cover-up and whitewash
the discrimination and retaliation perpetrated against the Plaintiffs by all of the
Defendants . . . .” 1AC ¶¶ 36, 59, 76. According to Plaintiffs’ counsel, this action
is “based upon acts committed by the defendants either after the original Dowkin
complaint was filed or which were concealed and covered-up by the Defendants
during the litigation, which acts were only subsequently discovered well after the
2010 filing date of the Dowkin lawsuit and even then not until the year 2012.”
Opp. at 1.
The City Defendants now move to strike and/or dismiss the 1AC as
duplicative of the amended complaints and proposed 4AC in Dowkin and because
the 1AC asserts claims that were previously litigated in Dowkin.
STANDARD OF REVIEW
Defendants bring the Motion pursuant to Fed. R. Civ. P. 12(b)(6) and
There are also ten other individuals who are Defendants in Dowkin, but who are not Defendants
Rule 12(b)(6) permits a motion to dismiss for failure to state a claim
upon which relief can be granted. Pursuant to Ashcroft v. Iqbal, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” 555 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)).
“[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a]
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Factual allegations
that only permit the court to infer “the mere possibility of misconduct” do not
constitute a short and plain statement of the claim showing that the pleader is
entitled to relief as required by Rule 8(a)(2). Id. at 679.
Rule 12(f) provides that the “court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). The function of a Rule 12(f) motion is to avoid the
waste of time and money spent on litigating spurious issues by dispensing with
those issues before trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885
(9th Cir. 1983). Grounds for a motion to strike must be readily apparent from the
face of the pleadings or from materials that may be judicially noticed. Wailua
Assocs. v. Aetna Cas. & Sur. Co., 183 F.R.D. 550, 554 (D. Haw. 1998). A matter
will not be stricken from a pleading unless it is clear that it can have no possible
bearing on the subject matter of the litigation. Id. Courts will generally grant a
motion to strike only when the moving party has proved that the matter to be
stricken could have no possible bearing on the subject matter of the litigation. See
Cal. Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028,
1033 (C.D. Cal. 2002).
Motions to strike are disfavored in the absence of prejudice. “A
motion to strike is a severe measure and it is generally viewed with disfavor [and
is] not normally granted unless prejudice would result to the movant from the
denial of the motion.” United States v. 729,773 Acres of Land, 531 F. Supp. 967,
971 (D. Haw. 1982). In deciding a motion to strike, the Court “views the
challenged pleadings in the light most favorable to the [non-moving party].”
Wailua Assocs., 183 F.R.D. at 554 (citing Hoeft v. Tucson Unified School Dist.,
967 F.2d 1298, 1301 (9th Cir. 1992)).
Where potentially duplicative actions exist, “[a]fter weighing the
equities of the case, the district court may exercise its discretion to dismiss a
duplicative later-filed action, to stay that action pending resolution of the
previously filed action, to enjoin the parties from proceeding with it, or to
consolidate both actions.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d, 684,
688 (9th Cir. 2007).
The City Defendants move to strike and/or dismiss the 1AC on the
basis that the 1AC is duplicative of the claims and issues that have been litigated or
will be litigated in Dowkin. Plaintiffs counter that the claims in the 1AC are
distinct in time from the claims in Dowkin and involve an overlapping but distinct
set of defendants. For the reasons set forth below, the Court agrees with the City
Defendants and dismisses the 1AC with prejudice.
Applicability of the Claim-Splitting Doctrine
As a threshold matter, the parties dispute the applicable legal standard
to assess whether the 1AC is duplicative of the claims and issues in Dowkin. The
City Defendants assert that the “duplicative complaint” doctrine, also known as the
“claim-splitting” doctrine, applies in this case. That doctrine was laid out by the
Ninth Circuit as follows:
To determine whether a suit is duplicative, we borrow
from the test for claim preclusion. As the Supreme Court stated
in The Haytian Republic, “the true test of the sufficiency of a
plea of ‘other suit pending’ in another forum [i]s the legal
efficacy of the first suit, when finally disposed of, as ‘the thing
adjudged,’ regarding the matters at issue in the second suit.”
154 U.S. 118, 124, 14 S.Ct. 992, 38 L.Ed. 930 (1894); see also
Hartsel Springs Ranch, 296 F.3d at 987 n. 1 (“[I]n the claim10
splitting context, the appropriate inquiry is whether, assuming
that the first suit were already final, the second suit could be
precluded pursuant to claim preclusion.”); Curtis, 226 F.3d at
139–40 (“[T]he normal claim preclusion analysis applies and
the court must assess whether the second suit raises issues that
should have been brought in the first.”); Davis v. Sun Oil Co.,
148 F.3d 606, 613 (6th Cir. 1998) (per curiam) (referring to the
doctrine against claim-splitting as “the ‘other action pending’
facet of the res judicata doctrine”).
Thus, in assessing whether the second action is
duplicative of the first, we examine whether the causes of
action and relief sought, as well as the parties or privies to the
action, are the same. See The Haytian Republic, 154 U.S. at
124, 14 S.Ct. 992 (“There must be the same parties, or, at least,
such as represent the same interests; there must be the same
rights asserted and the same relief prayed for; the relief must be
founded upon the same facts, and the . . . essential basis, of the
relief sought must be the same.” (internal quotation marks
omitted)); Curtis, 226 F.3d at 140 (holding that the trial court
did not abuse its discretion in dismissing “Curtis II claims
arising out of the same events as those alleged in Curtis I,”
which claims “would have been heard if plaintiffs had timely
raised them”); Serlin, 3 F.3d at 223 (“[A] suit is duplicative if
the claims, parties, and available relief do not significantly
differ between the two actions.” (internal quotation marks
Adams v. California Department of Health Services, 487 F.3d 684, 688–89 (9th
Cir. 2007). Plaintiffs counter that the claim-splitting doctrine is inapplicable here
because there has not yet been a judgment in Dowkin and because the conduct
addressed by the 1AC arose after the initiation of the lawsuit in Dowkin in 2010.
The Court agrees with the City Defendants that the claim-splitting doctrine applies
Plaintiffs rely on Atchison, Topeka and Santa Fe Ry. Co. v. Hercules,
Inc., 146 F.3d 1071 (9th Cir. 1998), and Curtis v. Citibank, N.A., 226 F.3d 133 (2d
Cir. 2000), to support their position that the claim-splitting doctrine does not apply
here. Atchison, however, is not instructive, as it dealt with the issue of whether a
plaintiff could bring claims that it chose not to assert against a third-party
defendant to the first action (claims that would have been permissive cross-claims
under Fed. R. Civ. P. 14) via a second, separately filed, action. 146 F.3d at 1073–
74. Atchison turned on the proper application of Fed. R. Civ. P. 14, which is not in
play here, and did not address the claim-splitting doctrine. Id. at 1074. In fact, in
Adams, the Ninth Circuit clarified that an application of the claim-splitting doctrine
to dismiss a second action as duplicative does not conflict with the Atchison
decision because there is no conflicting rule of civil procedure for a proper
dismissal in the claim-splitting context. See Adams, 487 F.3d at 688 n.1.
Plaintiffs’ reliance on Curtis is also misplaced. Plaintiffs cite to the
following comments by the Second Circuit:
While claim preclusion bars relitigation of the events
underlying a previous judgment, it does not preclude litigation
of events arising after the filing of the complaint that formed
the basis of the first lawsuit. The crucial date is the date the
complaint was filed. The plaintiff has no continuing obligation
to file amendments to the complaint to stay abreast of
subsequent events; plaintiff may simply bring a later suit on
those later-arising claims.
226 F.3d at 139 (internal citation omitted); see Opp. at 15–16. Plaintiffs assert that
this case is “exactly the same” as Curtis because:
Plaintiffs’ discovery of Defendants’ conspiracy to reverse
adverse findings that admitted liability did not occur until more
than two years after the first Dowkin Complaint was filed and
five months after the Dowkin Third Amended Complaint was
filed. [Thus, i]t would not have been possible to bring the new
causes of action in those complaints because Plaintiffs were
unaware of the manipulated ARB outcome and the concealment
of the original finding against Kwon.
Opp. at 17. However, the Ninth Circuit has specifically held that “‘the fact that
plaintiff was denied leave to amend does not give h[er] the right to file a second
lawsuit based on the same facts.’” Adams, 487 F.3d at 688 (quoting Hartsel
Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982 (10th Cir. 2002)
(alteration in original)); see Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1025
(9th Cir. 2011) (referring to actions dismissed for claim-splitting as ones where
“plaintiff was, in effect, attempting to avoid an unfavorable prior ruling in one case
by filing essentially the same claims in a new case.”). In other words, instead of
the rigid time frame suggested by Curtis to determine a duplicative complaint, the
Court must analyze whether the claims in the later action should be precluded
under the test for claim preclusion. See id. at 689 (citing Hartsel, 296 F.3d at 987
n.1, for the proposition that “in the claim-splitting context, the appropriate inquiry
is whether, assuming that the first suit were already final, the second suit could be
precluded pursuant to claim preclusion”). Accordingly, Plaintiffs arguments for
why the Court should not analyze the 1AC under the claim-splitting doctrine are
“[I]n assessing whether the second action is duplicative of the first,
[the Court] examine[s] whether the causes of action and relief sought, as well as
the parties or privies to the action, are the same.” Id. The Court addresses each of
these two questions in turn and determines each in the affirmative.
Whether the Causes of Action and Relief Sought are the Same
Under the first part of the duplicative action test, “[t]o ascertain
whether successive causes of action are the same, [the court must] use the
transaction test, developed in the context of claim preclusion.” Id. The transaction
(1) whether rights or interests established in the prior judgment
would be destroyed or impaired by prosecution of the second
action; (2) whether substantially the same evidence is presented
in the two actions; (3) whether the two suits involve
infringement of the same right; and (4) whether the two suits
arise out of the same transactional nucleus of facts.
Id. The fourth factor is “the most important” and asks whether the suits are related
to the same set of facts and could conveniently be tried together. Constantini v.
Trans World Airlines, 681 F.2d 1199, 1202 (9th Cir. 1982); Western Sys., Inc. v.
Ulloa, 958 F.2d 864, 871 (9th Cir. 1992).
As to the first factor, although there has been no judgment in Dowkin
because it is presently stayed,3 litigation of Plaintiffs’ claims in this action would
interfere with the City Defendants’ rights and interests that have been established
in Dowkin. In Dowkin, Plaintiffs repeatedly argued that the City Defendants,
HPD’s Human Resources Division (“HRD”), and Corp. Counsel were all involved
in a “deliberate cover-up of inculpatory evidence” and that, consequently,
Plaintiffs should be entitled to discovery of these allegations. Dowkin,
Dkt. no. 344 (Plaintiffs’ Motion to Extend the Limitation on the Number of
Depositions allowed by Fed. R. Civ. P. Rule 30(a)(2)(A)(i)), at 5 ¶ 9; see, e.g., id.,
Dkt. no. 418 (Plaintiffs’ appeal of Magistrate’s order (ECF No. 413)), at 4–5
(describing the “complicity of the current Chief of Police [Chief Kealoha], the
EEOC Officer for the City and County of Honolulu [Denise Tsukayama], and
others [Kajihiro and McEntire] in the tampering with and suppression of evidence
concerning Defendant Kwon’s discipline investigation”); id., Dkt. no. 398
(Plaintiffs’ reply related to their Motion for a New Scheduling Order Extending
Plaintiffs argue that the claim-splitting doctrine only applies to previous judgments. Opp. at 15.
While that may be the rule in a res judicata analysis, it is not a requirement in the claim-splitting
context. “It is clear that a motion to dismiss based on improper claim-splitting need not—
indeed, often cannot—wait until the first suit reaches final judgment. Thus, in the claim-splitting
context, the appropriate inquiry is whether, assuming that the first suit were already final, the
second suit could be precluded pursuant to claim preclusion.” Hartsel, 296 F.3d at 987 n.1
(quoted in part in Adams, 487 F.3d at 689) (internal citations omitted); see Long v. TRW Vehicle
Safety Sys., Inc., 2010 WL 729465, at *5 (D. Ariz. Feb. 26, 2010) (“Final adjudication on the
merits of the first action is not a concern in duplicative litigation.”); see also 18 Wright et al.,
Federal Practice and Procedure § 4406 (“In dealing with simultaneous actions on related
theories, courts at times express principles of ‘claim splitting’ that are similar to claim
preclusion, but that do not require a prior judgment.”).
Discovery Deadlines), at 3–6 (same); id., Dkt. no. 343 (Plaintiff’s Motion for
Sanctions Against Defendants and Their Counsel), at 2 (“Corporation Counsel
knew that the records documenting Defendant Kwon’s IA 08-0554 discipline were
not produced or otherwise made known to Plaintiffs because Corporation Counsel
was directly involved in the disciplinary finding reversal and in covering up the
documents’ existence.”). In each of these instances, the Court in Dowkin rejected
Plaintiffs’ arguments and allegations and concluded that there was no evidence to
support the assertions made by Plaintiffs.
Plaintiffs do not dispute that these same allegations of a cover-up
form the basis of the current 1AC. Opp. at 2 (“[The proposed 4AC in Dowkin]
set[s] forth in excruciating detail (referencing and attaching actual HPD
documents) some of the key background facts and substantial bases for the new
and distinct Bennett-Bagorio First Amended Complaint . . . at issue here.”). Thus,
although the Defendants in Dowkin already litigated the need for any discovery
related to claims of a cover-up of the discrimination investigation, allowing
Plaintiffs to proceed anew here would unfairly subject Defendants to the very same
discovery that has been precluded in the context of both the Dowkin plaintiffs’
discovery motions and efforts to amend the pleadings. See Dowkin, Dkt. no. 343
(Plaintiffs’ Motion for Sanctions Against Defendants and Their Counsel), at 2
(relying and referencing the allegations and exhibits in the already denied 4AC as
the basis for warranting additional discovery on those allegations); id., Dkt. no.413
(Order Denying Plaintiffs’ Motion for Sanctions Against Defendants and Their
Counsel), at 4–5 (“Plaintiffs present no evidence of a cover-up by Defendants or
their counsel. In fact, the record shows that Plaintiffs requested these specific
documents on May 16, 2012 and were provided them two weeks later on June 1,
2012.”); 1AC ¶¶ 63–65 (alleging as the basis of the claims in the 1AC the
discovery abuse by Defendant that was specifically rejected by the Court in
Dowkin). Prosecution of this action would impair the rights and interests of
Defendants that have already been established in Dowkin.
The fourth factor in the transaction test also instructs that the 1AC is
duplicative of claims made in Dowkin.4 Even by narrowly construing the scope of
the Dowkin action, Central Delta Water Agency v. United States, 306 F.3d 938,
953 (9th Cir. 2002), the Court is convinced that the two actions arise out of the
same nucleus of facts. “Whether two events are part of the same transaction or
series depends on whether they are related to the same set of facts and whether
they could conveniently be tried together.” Adams, 487 F.3d at 689. The 1AC
centers around the following alleged events:
[I]n a unified, conscious, and concerted effort to conspire
together in order to, and in demonstration of their intent to,
discriminate and retaliate against the Plaintiffs, Defendants: (1)
This conclusion on the fourth factor instructs the determination that the second and third factors
would also weigh in favor of a determination that the 1AC is duplicative.
concealed and covered-up the existence of these inculpatory
records; (2) unduly delayed the completion of the investigation
of the First Race Complaint for 3 years and 3 months, instead of
within the 5-day period required by HPD policy; (3) failed to
separate the Plaintiffs from the perpetrators; (4) failed to
properly and adequately investigate the First Race Complaint;
(5) whitewashed the recommendation for the suspension of
Kwon; and (6) failed to impose any discipline against Kwon
and/or Fernandez in the face of overwhelming evidence of their
illegal discrimination, retaliation, and violations of HPD’s SOC
1AC ¶ 65. The operative complaint in Dowkin, the Third Amended Complaint
(“3AC”), similarly alleges a conspiracy by all Defendants to approve violations of
HPD Policy in discriminating against Plaintiffs and in failing to properly
investigate and punish the alleged offending Defendants. See 3AC ¶¶ 45, 54.
Although the claims in Dowkin also address the original alleged discriminatory
acts against Plaintiffs, both actions center on Plaintiffs’ disapproval of the timing,
procedure, and substance of the investigation by the City Defendants of Plaintiffs’
discrimination complaints, and the allegation that the improper investigation was a
conspiracy by all Defendants. In other words, Plaintiffs seek relief in both actions
from Defendants’ alleged conspiracy to commit wrongful conduct surrounding the
investigation of Plaintiffs’ discrimination complaint. This conclusion is further
supported by the fact that Plaintiffs, as discussed above, argued several times in
Dowkin that Corp. Counsel, the HRD, and other HPD officials all conspired to
cover up and alter the discrimination investigation, asserted these same allegations
in the proposed 4AC, and readily admitted that the 4AC provides “substantial
bases” for the allegations of the 1AC here. See Opp. at 2.
Plaintiffs sought to make the allegations of the 1AC part of Dowkin,
but were prevented from doing so. Dowkin 4AC Order. This is exactly the type of
conduct that the claim-splitting doctrine aims to preclude. See Adams, 487 F.3d at
688 (dismissing a duplicative complaint because “[plaintiff] filed her present
complaint in an attempt to avoid the consequences of her own delay and to
circumvent the district court’s denial of her untimely motion for leave to amend
her first complaint”).
The common nucleus of facts in both suits instructs this Court that,
assuming Dowkin was already final, this lawsuit would be precluded pursuant to
claim preclusion. Id. at 689. The transaction test weighs heavily in favor of claim
preclusion. See Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir.
2005). In light of the “‘the fact that [a] plaintiff [being] denied leave to amend
does not give [them] the right to file a second lawsuit based on the same facts,’”
Adams, 487 F.3d at 688 (quoting Hartsel Springs Ranch of Colo., Inc. v. Bluegreen
Corp., 296 F.3d 982 (10th Cir. 2002), the first part of the duplicative action test is
satisfied. The 1AC does not raise any substantially separate factual bases from
what Plaintiffs proposed to assert in the 4AC in Dowkin5 or from the nucleus of
events giving rise to the operative 3AC in Dowkin. The first part of the duplicative
action test is satisfied.
Whether the Parties and Privies are the Same
Under the second part of the duplicative action test, a court must
“examine whether . . . the parties or privies to the action[s] are the same.” Adams,
487 F.3d at 689. As noted above, the 1AC adds 10 new Defendants as compared
to the 3AC in Dowkin (8 of which are new as compared to the proposed Dowkin
4AC). The Court concludes, however, that each of the new Defendants is in a
close relationship to the Defendants that are named in Dowkin and that the Dowkin
Defendants represent the same interests as the newly named Defendants.
Where the parties are identical in both actions, the answer to the
second part of the duplicative action test is simple. In Adams, however, the Ninth
Circuit determined that even where the new complaint named several new
defendants (as is the case here), the second complaint was nonetheless duplicative
because the new defendants had, among other things, “a close relationship” with
the defendants named in the earlier complaint.6 487 F.3d at 691. Specifically, the
Additionally, the Court notes that the number and substance of the claims in the proposed
Dowkin 4AC and the 1AC here are essentially the same, albeit with the addition and subtraction
of some Defendants, all of which are privies to each other, as discussed below. The requested
relief in the 3AC and the proposed 4AC in Dowkin, and in the 1AC here are also the same.
The Court recognizes that the concept of “virtual representation” invoked by the Ninth Circuit
in Adams has since been disapproved of in certain contexts by the Supreme Court in Taylor v.
Ninth Circuit found that some of the newly named defendants were in privity with
the original defendants because they were employees of the originally named
defendant employer and because the interests of the employer and newly named
defendants were aligned:
Here, three of the new defendants . . . were employees of [the
originally named defendant employer] at the time of the events
described in both of [plaintiff’s] complaints and thus had a
close relationship with both [employer] and the . . . employees
named as defendants in the first complaint. . . . Moreover, the
interests of the three new employee-defendants are aligned with
[the employer] because [the employer’s] liability was
predicated largely upon a finding of wrongdoing by its
Id. at 692 (internal citation omitted). The Court concludes that this same reasoning
applies to all of the newly named City and HPD employees, namely Corp. Counsel
employees D. Scott Dodd, Carrie K.S. Okinaga and Robert C. Godbey, City
Employee Denise Tsukayama, and HPD employees Major Kerry Inouye,
Lieutenant Carolyn Onaga, Lieutenant Yvonne Bolton, Randall Gratz, and Deputy
Chief Dave Kajihiro. As stated in the 1AC, all of these individuals are employees
of the City or HPD, which is operated by the City. 1AC ¶¶ 7–8, 11–13.
Identically in Dowkin, the City was sued as the operating governmental entity of
HPD, and along with the City, thirteen individual defendants were named, all of
Sturgell, 553 U.S. 880, 904 (2008). Accordingly, the Court does not rely on virtual
representation in determining that the new Defendants in the 1AC are in privity with the
Defendants in Dowkin. The Court notes, however, that under an analysis of virtual
representation, all of the newly named Defendants in the 1AC would be in privity with the
whom are/were employees of HPD and were sued because they were “acting on
behalf or in furtherance of the business of HPD and/or the City & County . . .”
3AC ¶ 9; see id. ¶¶ 10–23 (naming each of the individual HPD Defendants and
describing their role in “HPD’s chain of command”); see 4AC ¶¶ 23–24 (proposing
to add two additional Defendants, namely Denise Tsukayama, an EEO Officer for
the City and HPD, and Deputy Chief Dave Kajihiro, an HPD employee). Further,
all of the new Defendants in the 1AC are named only because they are alleged to
have “conspired with one or more of the other Defendants to delay and whitewash
the investigation of Plaintiffs’ race and gender discrimination and retaliation
complaints.” 1AC ¶¶ 12–13. This is the same larger conspiracy (albeit with
additional details) that is one of the primary bases for the Dowkin action. See 3AC
Accordingly, the Court determines that the 10 new Defendants named
above in the 1AC are in privity with the original Defendants in Dowkin and the
second part of the duplicative action test is satisfied. The Dowkin Defendants were
employed by the same local government entities (or were the same entities
themselves) as the Defendants here and therefore share an identity of interest,
which the Dowkin Defendants adequately represented. Adams, 487 F.3d at 691–
92; See, e.g., Birch v. Gonzalez, 2013 WL 1191429, at *8 (C.D. Cal. Feb. 15,
2013) (holding that for res judicata purposes, “committee members named as
defendants in this action were in privity with the Warden named as the respondent
in the state habeas petitions” because “[t]hose committee members are employees
of the . . . same institution that Warden Marshall—named in the state habeas
petitions—oversaw. Liability in the state habeas petition would have been
predicated upon a finding of wrongdoing by the committee members.”); Barclay v.
Lowe, 131 Fed. Appx. 778, 779 (2d Cir. 2005) (“Although [plaintiff] named
different defendants in the second suit than in the first, the suits are nonetheless
duplicative because the defendants in the second suit are in privity with the
defendants in the first suit. All defendants are employees of [employer] and their
interests are adequately represented by those in the first suit who are vested with
the authority of representation.” (internal quotation marks omitted)); Jones v.
Mortgageit, 2010 WL 330226, at *3 (N.D. Cal. Jan. 21, 2010) (dismissing a
second action as duplicative because “the interests of Defendants in each action
Moreover, specifically as to Corp. Counsel and the three named Corp.
Counsel attorneys (D. Scott Dodd, Carrie K.S. Okinaga, and Robert C. Godbey),
the actual allegations asserted in the 1AC against these Defendants were asserted
and rejected in Dowkin (although Corp. Counsel and its attorneys were not named
Defendants in Dowkin). Compare Dowkin, Dkt. no. 343 (Plaintiff’s Motion for
Sanctions Against Defendants and Their Counsel), at 2 (“Corporation Counsel
knew that the records documenting Defendant Kwon’s IA 08-0554 discipline were
not produced or otherwise made known to Plaintiffs because Corporation Counsel
was directly involved in the disciplinary finding reversal and in covering up the
documents’ existence.”), with 1AC ¶ 79 (“Corporation Counsel therefore
deliberately injected himself/itself into the ‘investigation’ of the First Race
Complaint in order to secure the reversal of the ARB recommendation of
disciplinary action against Defendant Kwon, because such finding and
recommendation constitute an admission against the interest of the City & County
and would facilitate the establishment of liability in the First Lawsuit.”). The
Court finds this to be further support that the interests of Corp. Counsel and its
named attorneys were shared with and adequately represented by the Dowkin
Dismissal of the 1AC
Having concluded that the claim-splitting doctrine applies to the 1AC
and that the two-part test to find a duplicative complaint is satisfied, the Court
hereby dismisses the 1AC with prejudice. See Adams, 487 F.3d at 692–93. In
Adams, the Ninth Circuit noted:
The allegedly illegal background investigation . . . occurred . . .
eight months before [plaintiff] filed her first action in state court
. . . . In addition, the . . . Investigations report upon which
[plaintiff] bases her claims . . . was made available to [plaintiff]
as part of the discovery materials provided by [defendant].
[Plaintiff] herself admits that she uncovered this report . . .
more than two months prior to the deadline in the first action
for amending the complaint.
487 F.3d at 693. Similarly here, the alleged wrongful investigation of Plaintiffs’
discrimination complaint occurred prior to the initiation of the Dowkin lawsuit
(although Plaintiffs allege continuing wrongful conduct going past the initial filing
of Dowkin). Even as to the allegations that wrongful conduct related to the
investigation continued while the Dowkin litigation was ongoing, Plaintiffs raised
those issues before the Court in Dowkin, but no wrongful conduct was found.
Dowkin, Dkt. no. 413 (Order Denying Plaintiffs’ Motion for Sanctions Against
Defendants and Their Counsel), at 4–5 (“Plaintiffs present no evidence of a coverup by Defendants or their counsel.”).
Additionally, Plaintiffs’ own delay served as part of the basis for their
inability to bring those claims in Dowkin. See Dowkin 4AC Order at 17–18
(“Plaintiffs waited . . . nearly five months after they received the documents from
Defendants [that served as the basis for the 4AC], to file the instant Motion and fail
to provide any reason for the lengthy delay. As a result, the Court finds that
Plaintiffs were not diligent in moving to file their proposed [4AC].”). This is not a
case where the 1AC is based on events occurring subsequent to Dowkin that could
not have been part of Dowkin. See Adams, 487 F.3d at 693. Plaintiffs’ own efforts
to file the 4AC in Dowkin direct that conclusion.
Accordingly, the 1AC is dismissed with prejudice. Id. at 692
(affirming the dismissal with prejudice of a duplicative second action). The Court
notes that, despite this dismissal, Plaintiffs are not without recourse. They may
still appeal the denial of leave to file the 4AC in Dowkin to the Ninth Circuit once
the Dowkin matter is concluded. See Oxbow Energy, Inc. v. Koch Indus., Inc., 686
F. Supp. 278, 282 (D. Kan. 1988) (“The fact that [the judge in the first action] did
not allow plaintiffs to proceed on all claims is not a persuasive reason for granting
plaintiffs the right to proceed in a second action. To allow such an approach would
defeat the purpose of the rule against splitting causes of action: requiring a
plaintiff to address all related claims in one action and protecting the defendant
from the necessity of litigating similar claims in separate actions. The proper
course for plaintiffs is to appeal . . . [the] ruling [denying certain claims in the first
action] to the Circuit Court of Appeals once the [first] action is concluded.”).
The City Defendants also move for sanctions against Plaintiffs’
counsel for the filing of the second lawsuit. Although the motives and conduct of
Plaintiffs’ counsel can be questioned, the Court is not inclined to impose sanctions
at this time. The Motion for Sanctions is DENIED.
The Court hereby GRANTS the City Defendants’ Motion to Strike
and/or Dismiss the First Amended Complaint Filed on February 20, 2013 and
DENIES the City Defendants’ Motion for Sanctions. Plaintiffs’ First Amended
Complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAI‘I, January 28, 2014.
Bennett-Bagorio, et al. v. The City and County of Honolulu, et al.; CV 13-00071
DKW/KSC; ORDER GRANTING DEFENDANT CITY & COUNTY OF
HONOLULU’S MOTION TO STRIKE AND/OR DISMISS FIRST AMENDED
COMPLAINT AND DENYING THE MOTION FOR SANCTIONS
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?