Casados v. Drury et al

Filing 84

ORDER GRANTING COUNTERCLAIM DEFENDANTS LISA ANN CASADOS AND YOKO CASADOS' MOTION TO DISMISS COUNTERCLAIM FILED ON OCTOBER 17, 2013, AS TO COUNTERCLAIM DEFENDANTS CHARLES LEE CASADOS AND LISA ANN CASADOS re 56 . Signed by JUDGE LESLIE E. KOBAYA SHI on 04/30/2014. -- the Motion to Dismiss Counterclaim Filed on October 17, 2013, as to Counterclaim Defendants Charles Lee Casados and Lisa Ann Casados, filed January 16, 2014 is HEREBY GRANTED. The Ameritas Defendants� 39; Counterclaim is DISMISSED WITHOUT PREJUDICE as to Charles Lee Casados and Lisa Ann Casados. (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 HAWAII
CIVIL NO. 13-00283 LEK-RLP

)
)
Plaintiff,
)
)
vs.
)
)
LORI A. DRURY; AMERITAS LIFE )
INSURANCE CORP.; DIANE PEREZ; )
GRACE CASADOS MARTINEZ; PETRA )
WILLIAMS; PATRICIA DIANE
)
)
JACOBS; ESTATE OF SAMUEL
FRANCISCO CASADOS; JOHN
)
)
and/or JANE DOES 1-20; DOE
)
ENTITIES 1-10,
)
)
Defendants.
_____________________________ )
YOKO CASADOS,

ORDER GRANTING COUNTERCLAIM DEFENDANTS LISA ANN CASADOS
AND YOKO CASADOS’ MOTION TO DISMISS COUNTERCLAIM FILED
ON OCTOBER 17, 2013, AS TO COUNTERCLAIM DEFENDANTS
CHARLES LEE CASADOS AND LISA ANN CASADOS
Before the Court is Counterclaim Defendants Lisa Ann
Casados (“Lisa Ann Casados”) and Yoko Casados’ (“Plaintiff”)
Motion to Dismiss Counterclaim Filed on October 17, 2013, as to
Counterclaim Defendants Charles Lee Casados and Lisa Ann Casados
(“Motion”), filed January 16, 2014.

[Dkt. no. 56.]

Counterclaimants Ameritas Life Insurance Corp. (“Ameritas”) and
Lori A. Drury (“Drury,” collectively “the Ameritas Defendants”)
filed their memorandum in opposition on February 7, 2014, and
Plaintiff and Lisa Ann Casados filed their reply on March 3, 2014
(“Reply”).

[Dkt. nos. 69, 72.]

on April 14, 2014.

This matter came on for hearing

After careful consideration of the Motion,

supporting and opposing memoranda, and the arguments of counsel,
the Motion is HEREBY GRANTED because the Ameritas Defendants lack
standing and have improperly brought the counterclaim as set
forth more fully below.
BACKGROUND
I.

The Complaint
On June 4, 2013, Plaintiff filed her Complaint for

Damages (“Complaint”) against Defendants Ameritas, Drury, Diane
Perez (“Perez”), Petra Williams (“Williams”), Grace Casados
Martinez (“Martinez”), Patricia Diane Jacobs (“Jacobs”), the
Estate of Samuel Francisco Casados (“Estate of Samuel Casados”),
and John and/or Jane Does 1-10 and Doe Entities 1-10 (“Doe
Defendants”), asserting diversity jurisdiction.
¶¶ 2-4]

[Complaint at

Plaintiff is a Hawai`i resident and claims that she was

married to Charles Casados (“Mr. Casados”) “at all times
pertinent hereto.”

[Id. at ¶ 5.]

Drury is an employee of

Ameritas, which is a Nebraska corporation.

[Id. at ¶¶ 6-7.]

Williams; Perez, Martinez, and Jacobs; and Samuel Casados (“the
Casados Defendants”) are the mother, two sisters,1 and brother,
respectively, of Mr. Casados and reside in Texas, with the
exception of Williams, who resides in Oklahoma.

1

[Id. at ¶¶ 8-

In the memorandum in support of the Motion, Plaintiff
states that Perez and Jacobs are actually the same person. [Mem.
in Supp. of Motion at 4 n.1.] Thus, the Court refers to this
individual as Jacobs throughout this order.
2

12.]
Plaintiff alleges that “[on] or about December 10,
2008, the Family Court of the First Circuit of the State of
Hawaii [(“the Family Court”)] issued its ‘Order re:
[Mr. Casados’s] Motion for Pre-Decree Relief Filed September 19,
2008’ in the divorce matter of Charles Casados vs. Yoko Casados,
FC-D No. 08-1-2749.”
Complaint).]

[Id. at ¶ 14 (some alterations in

She claims that the order (“Pre-Decree Relief

Order”) stated that Plaintiff and Mr. Casados were “restrained
and enjoined from transferring, wasting or otherwise disposing
any of his or her real or personal property, except as necessary,
over and above current income, for the ordinary course of
business or for usual, current living expenses” and that this
language, among other things, forbade both of them from changing
beneficiaries of life insurance policies.

[Id. at ¶¶ 15-16.]

Plaintiff alleges that two years later, on or about October 5,
2010, Mr. Casados violated that order by changing the
beneficiaries of his $750,000 life insurance policy, numbered
1003123442, with Ameritas (“the Policy”) from Plaintiff to
Williams, Martinez, Jacobs, and Samuel Casados.

[Id. at ¶ 17.]

Plaintiff alleges that Ameritas confirmed the change with
Mr. Casados but did not inform Plaintiff.

[Id. at ¶ 18.]

On or about January 27, 2011, Mr. Casados died along
with Stephanie Casados, Plaintiff and Mr. Casados’s minor

3

daughter.

[Id. at ¶ 19.]

Plaintiff alleges this was before the

Family Court finalized Plaintiff and Mr. Casados’s divorce.
[Id.]

Shortly thereafter, when Plaintiff made a claim upon the

Policy, she discovered the change in beneficiaries and, on or
about February 15, 2011, she challenged the change through an
email from her attorney Stephen Reese, Esq., to Drury, attaching
the Pre-Decree Relief Order.

[Id. at ¶¶ 20-22.]

In response to

an email from Drury, on or about May 11, 2011, Plaintiff wrote a
letter to Ameritas, to the attention of Drury, asserting that the
change in beneficiary violated the Pre-Decree Relief Order and
thus it was “null and void.”

[Id. at ¶¶ 23-24.]

Plaintiff

alleges that on or about July 7, 2011, the Family Court dismissed
the divorce case because Mr. Casados died before the divorce was
granted, and two weeks later Drury informed Plaintiff that Mr.
Casados’s change of beneficiary was valid and Plaintiff was not
entitled to any proceeds under the Policy.

[Id. at ¶¶ 25-26.]

Plaintiff retained attorney Jared Kawashima, Esq., to
contest Ameritas’s decision.

[Id. at ¶ 27.]

She alleges that,

on or about August 1, 2011, Mr. Kawashima informed Drury that
Mr. Reese would forward the paperwork to collect on the rider for
Stephanie Casados (which Reese eventually did in November 2011)
and that he would keep Drury appraised of whether competing
claimants from the Casados family would permit the Policy
proceeds to be put in an escrow account while they resolved the

4

dispute over the proceeds.

[Id. at ¶¶ 28-30, 35.]

The next

week, Plaintiff claims, Drury acknowledged receipt of the claims
and stated that Ameritas would “wait for further instructions
from Mr. Kawashima.”

[Id. at ¶ 31.]

On or about November 15,

2011, attorney Everett Cuskaden, on behalf of Jacobs and as
representative of the Casados Defendants, made an offer to
distribute $350,000 to Plaintiff and distribute the remainder
equally among the other beneficiaries.

[Id. at ¶ 32.]

Plaintiff alleges that, on or about November 25, 2011,
Mr. Kawashima accepted the offer to settle via letter on behalf
of Plaintiff, and requested that Mr. Cuskaden draft a letter to
Ameritas with signature lines for the parties to the agreement
and the attorneys.

[Id. at ¶¶ 33-34.]

On or about December 13,

2011, Mr. Kawashima emailed Mr. Cuskaden, reiterating acceptance
of the offer, and requesting a copy of the Policy for Plaintiff’s
accountant to review to determine possible tax ramifications.
[Id. at ¶ 36.]

Plaintiff claims that, on or about that same day,

the Ameritas Defendants “allege that they received Plaintiff’s
signed disclaimer and that this disclaimer applied to all funds
under [the Policy], not just the amount due and owing on account
of Stephanie Casados’ death,”

[id. at ¶ 37,] and thus they

distributed the entire proceeds to the Casados Defendants [id. at
¶ 38].

5

Plaintiff alleges that neither the Ameritas Defendants
nor the Casados Defendants informed her or Mr. Kawashima of the
distribution.

[Id. at ¶¶ 39-40.]

On or about January 6, 2012,

Mr. Kawashima sent a third email to Mr. Cuskaden, accepting the
offer.

[Id. at ¶ 41.]

Plaintiff alleges that it was not until

on or about January 11, 2012, that Mr. Kawashima “received a fax
transmission from Mr. Cuskaden stating that the settlement offer
was voided and retracted because the matter had already been
resolved.”

[Id. at ¶ 42.]

Around two weeks later, Drury

informed Plaintiff that the proceeds had been paid out to the
Casados Defendants on December 13, 2011.

[Id. at ¶ 43.]

Plaintiff alleges that, as a direct and proximate result of
Defendants’ knowing, intentional, deliberate and/or malicious
acts, she suffered the loss of the proceeds and interest.

[Id.

at ¶¶ 44-45.]
The Complaint alleges the following claims: breach of
the duty of good faith and fair dealing by the Ameritas
Defendants (and Doe Defendants) under Haw. Rev. Stat. Chapter 431
(“Count I”); breach of the duty of good faith and fair dealing by
the Casados Defendants (and Doe Defendants), related to the
settlement negotiations (“Count II”); violation of Hawaii’s
Unfair and Deceptive Act or Practices (“UDAP”) law against the
Ameritas Defendants (“Count III”); conversion against all
Defendants (“Count IV”); and unjust enrichment against the

6

Casados Defendants (“Count V”).

[Id. at ¶¶ 46-61.]

Plaintiff

seeks the following relief: a declaration of wrongdoing; general,
special, and punitive damages, including the proceeds of the
Policy and interest; attorneys’ fees and costs as provided by
Haw. Rev. Stat. Chapter 431; and treble damages under Haw. Rev.
Stat. § 480-13.
II.

[Id. at pg. 14, ¶¶ 1-4.]

Motion to Dismiss and Counterclaim
On August 15, 2013, the Ameritas Defendants filed their

Motion For Dismissal with Prejudice (“Motion to Dismiss”).
no. 5.]

[Dkt.

On October 1, 2013, the Casados Defendants filed a

motion to join the Motion to Dismiss, and the Ameritas Defendants
filed a statement of no opposition the following day.
33, 36.]

[Dkt. nos.

At a hearing on October 2, 2013 (“10/2/13 Hearing”),

the Court orally denied the Motion to Dismiss without prejudice
to filing a summary judgment motion, reasoning in part that the
motion asked the Court to look at numerous documents outside of
the Complaint, and Local Rule 56.1 requires that, to be
considered a motion for summary judgment, the movant must file a
separate concise statement of facts.

[10/2/13 Hrg. Trans., filed

10/7/13 (dkt. no. 38), at 7-8.]
On October 17, 2013, the Ameritas Defendants filed
their answer and asserted the counterclaim at issue in this
motion, against Plaintiff, individually and as the personal
representative of the estates of Charles Casados (“Mr. Casados’s

7

Estate”) and Stephanie Fay Casados (“Stephanie Casados’s
Estate”), and against Plaintiff and Mr. Casados’s surviving
children, Charles Lee and Lisa Ann Casados (“the Casados
Children”), and Does 1-10 (“Counterclaim”).

[Dkt. no. 40 at pgs.

15-24.]
Similar to Plaintiff, in the Counterclaim, the Ameritas
Defendants allege that in October 2010 Mr. Casados changed
beneficiaries of the Policy, that Mr. Casados died in January
2011, and that Ameritas paid the proceeds to the Casados
Defendants.

[Id. at ¶¶ 9-11.]

They claim that there is “now a

controversy between Plaintiff and [the Ameritas Defendants],
which also affects the rights and legal relations of [Plaintiff]
as Personal Representative of the Estate of Charles Casados.”
[Id. at ¶ 12.]

The Ameritas Defendants dispute Plaintiff’s

representation of the facts, moreover, explaining that if
Mr. Casados breached the Pre-Decree Relief Order, “[Plaintiff’s]
remedy is a claim for the violation of the late Mr. Casados
Estate, of which [Plaintiff] herself is the Personal
Representative.”

[Id. at ¶¶ 13-15.]

The Ameritas Defendants cite to the transcript from the
10/2/13 Hearing, [10/2/13 Hrg. Trans. At 7,] and state that they
“are informed by Plaintiff’s counsel, and upon that basis allege,
that there is now a second controversy between Plaintiff and [the
Ameritas Defendants],” which affects the rights of Plaintiff as

8

the personal representative of the two Estates, Charles Lee
Casados, Lisa Ann Casados, and the Casados Family Defendants.
[Counterclaim at ¶ 16 (citation omitted).]

They allege:

Specifically, Plaintiff alternatively
contend[ed] [at the 10/2/13 Hearing] that
(1) under the Marital Settlement Agreement between
Mr. and Mrs. Casados,2 which the Family Court of
the First Circuit ordered enforced on December 16,
2010, Mr. Casados may have been required to obtain
$100,000 of life insurance on himself for each of
Stephanie, Charles Lee [Casados], and Lisa
[Ann Casados]; (2) Mr. Casados may have breached
that Mr. [sic] obligation as to some or all of
said children; (3) if Mr. Casados breached that
obligation, [Plaintiff], and/or Stephanie’s
Estate, Charles Lee [Casados], and/or Lisa
[Ann Casados], are entitled to become
beneficiaries of Mr. Casados’ Ameritas life policy
to the extent of the breach, and Mr. Casados’
named beneficiaries’ shares of the proceeds must
be correspondingly reduced; (4) [Plaintiff] may
pursue and recover on claims against Ameritas,
Drury, and Mr. Casados’ named beneficiaries, for
herself and/or for Stephanie’s Estate, Charles Lee
[Casados], and Lisa [Ann Casados], to the extent
of any breach(es).
[Id. at ¶ 17.]

The Ameritas Defendants allege that, in that

2

The marital settlement agreement (“Marital Settlement
Agreement”) is not described in any detail in the Counterclaim.
Rather, it was raised in Defendants’ Motion to Dismiss and
supporting papers. [Mem. in Supp. of Motion to Dismiss at 7-12
(citing Motion to Dismiss, Exhs. 8 (dkt. no. 7-7), 9 (dkt. no. 78), 10 (dkt. no. 7-9), 13 (dkt. no. 9-3)).] In essence,
Defendants claim that, between the Pre-Decree Relief Order and
the change of beneficiaries at issue in the Complaint, there was
a Marital Settlement Agreement between Plaintiff and Mr. Casados
that the Family Court witnessed and later ordered enforced, which
required Mr. Casados to maintain part of the Policy as child
support. [Id. at 9.] As mentioned here, Plaintiff’s counsel
raised the Marital Settlement Agreement at the 10/2/13 Hearing.
[10/2/13 Hrg. Trans. at 7-14.]
9

event, only Stephanie Casados’s Estate, and the Casados Children
would have standing, and the only remedy would be against
Plaintiff as personal representative of Mr. Casados’s Estate.
[Id. at ¶¶ 18-19.]
Further, the Ameritas Defendants allege that
Mr. Casados never advised them about the Pre-Decree Relief Order
or the Marital Settlement Agreement and, if they had known and
Plaintiff had been entitled to the proceeds of the Policy, the
Ameritas Defendants would have paid Plaintiff as due.
¶¶ 20-21.]

[Id. at

They appear to allege that, if a court, at some later

date, found Plaintiff was entitled to part or all of the proceeds
of the Policy based on the Pre-Decree Relief Order or the Marital
Settlement Agreement, the Ameritas Defendants could recover the
award from Plaintiff as personal representative of Mr. Casados’s
Estate based on a theory of negligent misrepresentation.
¶¶ 22-23.]

[Id. at

Similarly, if the Casados Children were owed

anything, the Ameritas Defendants could recover from Mr. Casados’
Estate under the same theory.

[Id. at ¶¶ 24-26.]

The Ameritas Defendants pray for relief in the form of
declaratory judgments stating, in effect:
(1) if the Pre-Decree Relief Order enjoined
Mr. Casados from changing beneficiaries, and if
Mr. Casados violated that Order, Plaintiff’s sole
remedy would be against Mr. Casados’s Estate;
(2) if Mr. Casados breached the Marital Settlement
Agreement by failing to obtain $100,000 of life
insurance for his children, only they would have
10

standing to pursue the claims, and their only
remedy would be against Mr. Casados’s Estate, and
they would have no rights against the Ameritas
Defendants;
(3) if Plaintiff is entitled to proceeds of the
Policy based on either the Pre-Decree Relief Order
or the Marital Settlement Agreement, and the
Ameritas Defendants are liable to her, they may
recover from Plaintiff as personal representative
of Mr. Casados’s Estate based on negligent
misrepresentation; and
(4) if any of the children are entitled to be paid
based on either the Pre-Decree Relief Order or the
Marital Settlement Agreement, and the Ameritas
Defendants are liable, they may recover from
Plaintiff as personal representative of Mr.
Casados’s Estate based on negligent
misrepresentation.
[Id. at pgs. 22-24, ¶¶ 1-4.]

The Ameritas Defendants also

request attorneys’ fees and costs.

[Id. at pg. 24, ¶¶ 5-6.]

DISCUSSION
The Ameritas Defendants’ Counterclaim seeks to “free
themselves from such potential and future claims against
themselves” by the Casados Children.

[Mem. in Opp. at 7.]

The

Ameritas Defendants do not, however, have standing to assert the
rights of the third-party children.
It is a well-established rule that a litigant
may assert only his own legal rights and interests
and cannot rest a claim to relief on the legal
rights or interests of third parties. Singleton
v. Wulff, 428 U.S. 106, 113–14, 96 S. Ct. 2868, 49
L. Ed. 2d 826 (1976); Warth [v. Seldon], 422 U.S.
[490,] 499, 95 S. Ct. 2197 [(1975)]. As the
prohibition against third-party standing is
prudential, rather than constitutional, the
Supreme Court has recognized exceptions to this
general rule. . . .
11

We have recognized the right of
litigants to bring actions on behalf of third
parties, provided three important criteria
are satisfied: The litigant must have
suffered an “injury in fact,” thus giving him
or her a “sufficiently concrete interest” in
the outcome of the issue in dispute; the
litigant must have a close relation to the
third party; and there must exist some
hindrance to the third party’s ability to
protect his or her own interests.
[Powers v. Ohio, 499 U.S. 400, 410-11, 111 S. Ct.
1364, 113 L. Ed. 2d 411 (1991)] (citations
omitted); see also Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61, 112 S. Ct. 2130, 119 L. Ed.
2d 351 (1992); Shaw v. Hahn, 56 F.3d 1128, 1130 n.
3 (9th Cir. 1995) (third party must have suffered
an injury-in-fact) (citing Singleton, 428 U.S. at
112–16, 96 S.Ct. 2868).
Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153,
1163 (9th Cir. 2002).

An injury-in-fact must be “(a) concrete

and particularized and (b) actual or imminent, not conjectural or
hypothetical[.]”

Ibrahim v. Dep’t of Homeland Sec., 669 F.3d

983, 992 (9th Cir. 2012) (citations and quotation marks omitted).
Here, Plaintiff and Lisa Ann Casados argue that the
Ameritas Defendants seek a declaratory judgment that is
hypothetical and does not constitute injury-in-fact:
if Charles Lee [Casados and] Lisa [Ann Casados]
. . . were entitled to be paid some of the policy
proceeds under the Marital Settlement Agreement,
and [Ameritas] Counterclaimants are liable to them
or some of them for the amount(s) they should have
been paid . . . [Ameritas] Counterclaimants are
entitled to recover all such amounts from
Plaintiff as Personal Representative of the Estate
of Charles Casados.
[Mem. in Supp. of Motion at 12 (alterations and emphases in Mem.)
12

(quoting Counterclaim at pg. 23, ¶ 4)].

Plaintiff and Lisa Ann

Casados are correct that this alleged future injury is
insufficient to meet the injury-in-fact requirement as it is
entirely speculative.

Multiple hypothetical events must come to

pass and, only then, the Ameritas Defendants might suffer some
injury.

See Ibrahim, 669 F.3d at 992.
Further, the Casados Children do not have any

relationship with the Ameritas Defendants.

Nor have the Ameritas

Defendants pled any facts to show that the Casados Children are
unable to protect their own interests.

For these reasons, the

Ameritas Defendants do not have standing to assert the rights of
the Casados Children.

See Powers, 499 U.S. at 411.

The case that the Ameritas Defendants rely on, Beacon
Theaters, Inc. v. Westover, 359 U.S. 500 (1959), is not to the
contrary.

While the Ameritas Defendants are correct that the

Declaratory Relief Act, 28 U.S.C. § 2201, “‘allow[s] prospective
defendants to sue to establish their nonliability[,]’” [Mem. in
Opp. at 4, 8-9 (quoting Beacon Theaters, 359 U.S. at 504),] it
says nothing about a defendant’s ability to bring a counterclaim
against a third-party in litigation that it did not initiate.
The Ameritas Defendants are free to file suit under the
Declaratory Judgment Act for prospective relief, see 28 U.S.C.
§ 2201, but they have not done that.
Instead, the Ameritas Defendants argue that they have

13

counterclaimed for declaratory relief, and joined
[Charles Lee Casados] and Lisa [Ann Casados] as
counterclaim defendants as permitted by FRCP Rules
13(b), 19 and 20, to enable themselves to obtain
complete relief herein, in this single action,
from all present and potential claims, crossclaims, counterclaims and third-party claims
against them relating to Mr. Casados’ policy’s
proceeds.
[Mem. in Opp. at 3-4.]

In actuality, however, the Ameritas

Defendants have raised a counterclaim against three individuals –
Mrs. Casados, and the two Casados Children – and have not moved
to join anyone.

This is an improper use of Fed. R. Civ. P. 13.

Rule 13 allows a party to bring a counterclaim against an
“opposing party.”

See Fed. R. Civ. P. 13(a) (“Compulsory

Counterclaim. . . .

A pleading must state as a counterclaim any

claim that – at the time of its service – the pleader has against
an opposing party . . . .” (emphasis added)), (b) (“Permissive
Counterclaim.

A pleading may state as a counterclaim against an

opposing party any claim that is not compulsory.” (emphases
added)).

The Casados Children are not before the Court, and thus

neither Lisa Ann Casados nor Charles Lee Casados is an “opposing
party” as required by the Rule:
Whatever flaws Rule 13 may have, it at least
has the virtue of clarity. The plain meaning of
“opposing party” is a party to the lawsuit - that
is, a named party who asserted a claim against the
counterclaimants. To accept the expansive
definition of this term espoused by defendants
would erode the Rule’s clarity to the point that
litigants would simply have to guess in each
individual case whether a court would determine
that a potential defendant to a counterclaim is an
14

“opposing party.” While other Circuits have
carved exceptions to this plain meaning in
instances where there was no question that the
counterclaim defendant was in all salient legal
respects identical to a named party, such is not
the case here. As noted above, defendants have
not presented any argument that Blankenship is
actually “one and the same” as GIA-GMI, controls
this litigation on behalf of GIA-GMI, or is the
alter ego of GIA-GMI, and therefore these
exceptions do not apply.
. . . .
Be that as it may, the Court is not free to
extricate defendants from the obligation to jump
through “procedural hoops” prescribed by the
Federal Rules simply because they make bringing
claims slightly more burdensome. Indeed, a
primary Purpose of the Federal Rules is to reduce
litigation. See, e.g., Dill Mfg. Co. v. Acme Air
Appliance Co., 2 F.R.D. 151, 153 (E.D.N.Y. 1941)
(purpose of Federal Rules of Civil Procedure is to
reduce the amount of litigation, to narrow the
issues, to avoid surprises, and to promote
justice). Accordingly, the First Amended
Counterclaim should be dismissed.
GIA-GMI, LLC v. Michener, No. C 06-7949 SBA, 2007 WL 1655614, at
*4-5 (N.D. Cal. June 7, 2007).

Thus, the Ameritas Defendants’

attempted Counterclaim, through the use of Rule 13, is improper
as to the Casados Children.
Even if they had moved to join the Casados Children as
parties to this action, the Ameritas Defendants have not proven
that they meet the standard for compulsory joinder under Rule 19.
Fed. R. Civ. P. 19(a)(1) states, in part:
Required Party. A person who is subject to
service of process and whose joinder will not
deprive the court of subject-matter jurisdiction
must be joined as a party if:
15

. . . .
(B) that person claims an interest relating
to the subject of the action and is so
situated that disposing of the action in the
person’s absence may:
(i) as a practical matter impair or
impede the person’s ability to protect
the interest; or
(ii) leave an existing party subject to
a substantial risk of incurring double,
multiple, or otherwise inconsistent
obligations because of the interest.
The Ameritas Defendants have not met their burden of proving that
the Casados Children are necessary parties.
First, the Ameritas Defendants have not made any
showing that Plaintiff does not adequately represent the Casados
Children’s interests.

Even “[i]f a legally protected interest

exists, the court must further determine whether that interest
will be impaired or impeded by the suit.

Impairment may be

minimized if the absent party is adequately represented in the
suit.”

Salt River Project Agric. Improvement & Power Dist. v.

Lee, 672 F.3d 1176, 1180 (9th Cir. 2012) (alteration in Salt
River Project) (quoting Shermoen v. United States, 982 F.2d 1312,
1318 (9th Cir. 1992)) (some citations and internal quotation
marks omitted).

As Plaintiff and Lisa Ann Casados argue,

Plaintiff is protecting the Casados Children’s interest “by
advancing the arguments that the [P]olicy proceeds were owed and
due to Plaintiff Mrs. Casados in the divorce proceedings as child

16

support for Counterclaim Defendants Lisa Ann [Casados] and
[Charles Lee Casados] for whom Mrs. Casados was responsible in
the course of their care and upbringing.”

[Reply at 7.]

Further, the Ameritas Defendants have made no showing
that there is a substantial risk of multiple or inconsistent
obligations.

Since Plaintiff does not dispute the allegations in

the Counterclaim as to herself, nor that she has properly been
sued as trustee of Mr. Casados’s Estate, this litigation may
actually resolve any claims on behalf of the Casados Children,
and as Plaintiff and Lisa Ann Casados argue, the “original
Complaint filed herein can be characterized as an indemnification
and/or contribution action against Ameritas Counterclaimants for
the insurance proceeds on behalf of the interests of Lisa Ann
[Casados] and [Charles Lee Casados].”

[Id. at 7-8.]

The

Ameritas Defendants plead no facts showing a substantial risk of
multiple obligations.
For these reasons – the Ameritas Defendants do not have
standing to assert the rights of the Casados Children, they have
improperly filed a counterclaim against third-parties, and they
have made an insufficient showing that the Casados Children are
necessary parties – the Ameritas Defendants’ Counterclaim is
HEREBY DISMISSED against the Casados Children.

Since, however,

it is not clear that amendment to add back in the Casados
Children would be futile, the dismissal is WITHOUT PREJUDICE.

17

See Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009)
(holding that dismissal with prejudice is improper unless “the
complaint could not be saved by any amendment” (citation
omitted)).

The Ameritas Defendants have the option of seeking

leave to amend before the applicable deadline.
CONCLUSION
On the basis of the foregoing, the Motion to Dismiss
Counterclaim Filed on October 17, 2013, as to Counterclaim
Defendants Charles Lee Casados and Lisa Ann Casados, filed
January 16, 2014 is HEREBY GRANTED.

The Ameritas Defendants’

Counterclaim is DISMISSED WITHOUT PREJUDICE as to Charles Lee
Casados and Lisa Ann Casados.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 30, 2014.

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

YOKO CASADOS VS. LORI A. DRURY, ET AL; CIVIL 13-00283 LEK-RLP;
ORDER GRANTING COUNTERCLAIM DEFENDANTS LISA ANN CASADOS AND YOKO
CASADOS’ MOTION TO DISMISS COUNTERCLAIM FILED ON OCTOBER 17,
2013, AS TO COUNTERCLAIM DEFENDANTS CHARLES LEE CASADOS AND LISA
ANN CASADOS

18