Ritchie v. State of Hawaii, Department of Public Safety
Filing
163
ORDER DENYING DEFENDANTS' NOTICE OF APPEAL TO DISTRICT COURT JUDGE FROM MAGISTRATE JUDGE KURREN'S ORDER, DATED DECEMBER 8, 2015 [DKT. NO. 132 ] GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT re 136 . Signed by JUDGE LESLIE E. KOBAYASHI on 01/28/2016. (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).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiff,
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vs.
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THE STATE OF HAWAI`I,
DEPARTMENT OF PUBLIC SAFETY; )
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and NEAL WAGATSUMA, in his
official capacity as Warden
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of the Kauai Community
Correctional Center,
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Department of Public Safety, )
State of Hawai`i, and in his )
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individual capacity,
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Defendants.
_____________________________ )
CAROLYN C. RITCHIE,
CIVIL 14-00046 LEK-BMK
ORDER DENYING DEFENDANTS’ NOTICE OF APPEAL TO
DISTRICT COURT JUDGE FROM MAGISTRATE JUDGE KURREN’S
ORDER, DATED DECEMBER 8, 2015 [DKT. NO. 132] GRANTING
PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Before the Court is a Notice of Appeal to District
Court Judge from Magistrate Judge Kurren’s Order, Dated
December 8, 2015 [Dkt. No. 132] Granting Plaintiff’s Motion for
Leave to File Second Amended Complaint (“Appeal”) filed by
Defendants State of Hawai`i, Department of Public Safety (“DPS”)
and Neal Wagatsuma, in his individual capacity (“Wagatsuma,”
collectively “Defendants”), on December 14, 2015.
136.]
[Dkt. no.
Plaintiff Carolyn C. Ritchie (“Plaintiff”) filed her
memorandum in opposition on December 28, 2015, and Defendants
filed their reply on January 11, 2016.
[Dkt. nos. 146, 155.]
The Court has considered the Appeal as a non-hearing
matter pursuant to Rule 7.2(e) of the Local Rules of Practice of
the United States District Court for the District of Hawai`i
(“Local Rules”).
After careful consideration of the Appeal,
supporting and opposing memoranda, and the relevant legal
authority, Defendants’ Appeal is HEREBY DENIED for the reasons
set forth below.
BACKGROUND
The relevant factual and procedural background of this
case is familiar to the parties, and the Court will only discuss
the issues relevant to the Appeal.
On August 28, 2015, Plaintiff
filed a Motion for Leave to File Second Amended Complaint
(“Motion”).
[Dkt. no. 100.]
At the hearing on the Motion on
December 8, 2015, the magistrate judge orally granted the Motion,
and he issued a written order (“Order”) on December 31, 2015.
[Dkt. nos. 132, 151.]
Plaintiff filed her Second Amended
Complaint on January 4, 2016.
[Dkt. no. 152.]
Defendants bring
the instant Appeal pursuant to 28 U.S.C. § 636 and Local Rule
74.1.
Defendants argue that the Order is “erroneous and
contrary to law” because it causes “undue delay and prejudice to
Defendants.”
[Mem. in Supp. of Appeal at 2 (footnote omitted).]
Moreover, Defendants state that the additional claims in
Plaintiff’s Second Amended Complaint are futile.
2
Defendants
assert that Plaintiff knew that she wanted to amend her complaint
since September 2014.
Although the deadline for filing a motion
to amend the pleadings was August 28, 2015, [Second Amended Rule
16 Scheduling Order, filed 5/5/15 (dkt. no. 83),] “[w]aiting
until the last day of the non-dispositive motion deadline is
inconsistent and contrary to the intent and spirit of the Rules
of Civil Procedure, and the Ninth Circuit agrees with the
sentiment.”
[Mem. in Supp. of Appeal at 5-6.]
Alternatively, Defendants urge this Court to extend
discovery, allow them to depose Plaintiff again (pursuant to Fed.
R. Civ. P. 30(a)(2)), and grant them additional pages and time
for the Motion for Summary Judgment they filed on December 7,
2015.
[Dkt. no. 128.]
Plaintiff argues that the magistrate judge “properly
found Defendants had not demonstrated undue delay by Plaintiff,
prejudice to Defendants or that amendment would be futile.”
[Mem. in Opp. to Appeal at 10.]
STANDARD
This district court has stated:
Pursuant to 28 U.S.C. § 636(b)(1)(A), a
district judge may designate a magistrate judge to
hear and decide a pretrial matter pending before
the court. The decision of the magistrate judge
on non-dispositive matters is final. Bhan v. NME
Hosp., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991).
However, a district judge may reconsider a
magistrate’s order on these non-dispositive
pretrial matters and set aside that order, or any
portion thereof, if it is “clearly erroneous or
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contrary to law.” Fed. R. Civ. P. 72(a); 28
U.S.C. § 636(b)(1)(A); LR 74.1; see Rivera v.
NIBCO, Inc., 364 F.3d 1057,1063 (9th Cir. 2004);
see also Osband v. Woodford, 290 F.3d 1036, 1041
(9th Cir. 2002).
The threshold of the “clearly erroneous” test
is high. See Boskoff v. Yano, 217 F. Supp. 2d
1077, 1084 (D. Haw. 2001). The magistrate judge’s
factual findings must be accepted unless the court
is “left with the definite and firm conviction
that a mistake has been committed.” United States
v. Silverman, 861 F.2d 571, 576-[77] (9th Cir.
1988). “The reviewing court may not simply
substitute its judgment for that of the deciding
court.” Grimes v. City & Cnty. of S.F., 951 F.2d
236, 241 (9th Cir. 1991).
“A decision is ‘contrary to law’ if it
applies an incorrect legal standard or fails to
consider an element of the applicable standard.”
Na Pali Haweo Cmty. Ass’n v. Grande, 252 F.R.D.
672, 674 (D. Haw. 2008); see Hunt v. Nat’l
Broadcasting Co., 872 F.2d 289, 292 (9th Cir.
1989) (noting that such failures constitute abuse
of discretion).
Himmelfarb v. JP Morgan Chase Bank, Nat’l Ass’n, CV. No. 10-00058
DAE-KSC, 2011 WL 4498975, at *2 (D. Hawai`i Sept. 26, 2011).
DISCUSSION
I.
The Magistrate Judge’s Decision is Neither
Clearly Erroneous nor Contrary to Law
Fed. R. Civ. P. 15 states, in pertinent part:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party
may amend its pleading once as a matter of
course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a
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responsive pleading is required, 21 days
after service of a responsive pleading
or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever
is earlier.
(2) Other Amendments. In all other cases, a
party may amend its pleading only with the
opposing party’s written consent or the
court’s leave. The court should freely give
leave when justice so requires.
. . . .
The Ninth Circuit has stated that
Rule 15(a) is very liberal and leave to amend
“shall be freely given when justice so requires.”
See Bowles v. Reade, 198 F.3d 752, 757 (9th Cir.
1999). But a district court need not grant leave
to amend where the amendment: (1) prejudices the
opposing party; (2) is sought in bad faith;
(3) produces an undue delay in litigation; or
(4) is futile. Id. at 758; Jackson v. Bank of
Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990).
AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951
(9th Cir. 2006).
The magistrate judge’s decision was not clearly
erroneous.
At the hearing on the Motion, the magistrate judge
considered Defendants’ argument that the additional claims in the
Second Amended Complaint are futile and stated, “the problem with
that is that on a motion to amend, you know, it’s difficult to
sort out, you know, the qualified immunity issue that you raised,
and some of the other questions with regard to the merit.”
[Trans. of 12/8/15 Hearing on Motion (“Hrg. Trans.”), filed
12/23/15 (dkt. no. 141), at 2.]
In addition, the magistrate
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judge reasoned:
I mean, the bottom line is, you know, the Ninth
Circuit has made it very clear to us that you have
to be careful on a motion to amend not to resolve
issues that may require a greater record to be
developed and that’s why the futility side of this
– you know, for me, just to give you my assessment
of this, I would entertain futility arguments if
we’re talking about like statutes of limitation,
you know, but where you get into, you know, some
bit of complexity, and subtlety, and maybe
questions about the scope of the record, no.
[Id. at 10.]
Thus, based on the record and the representations
of counsel, the magistrate judge concluded that the additional
claims are not futile.
While Defendants assert that “it appears as though
Judge Kurren instead based his decision on the futility issue
alone[,]” [Appeal at 2,] the record proves otherwise.
issue of delay, the magistrate judge stated:
On the
“I’m not convinced
that you needed to wait this long, but I do know that we have
been proceeding with somewhat of a rocky road on discovery.
So I
think when considering everything, I’m going to allow the
amendment.”
[Hrg. Trans. at 2.]
The magistrate judge,
therefore, considered the timing of the filing of the Motion as
well as the discovery issues cited by Plaintiff, and concluded
that, on balance, Plaintiff’s Motion did not cause an undue
delay.
Finally, on the issue of prejudice, the magistrate judge
explained to the parties that he was going to “give you the time
that you need to do what you need to do[,]” and that he was
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“going to have to move the trial date to allow for what I’m
certain will be some motions activity with respect to all of this
that’s going to stretch this out a bit.”
[Id. at 10-11.]
With
some adjustments, the magistrate judge found that Defendants
would not be prejudiced.
This Court is in no position to second
guess the magistrate judge’s findings on these matters.
Nor is the magistrate judge’s decision to grant the
Motion contrary to law.
This Court has stated that “[a]n
amendment is futile if ‘no set of facts can be proved under the
amendment to the pleadings that would constitute a valid and
sufficient claim or defense.’”
Cooper v. Bank of N.Y. Mellon,
Civil No. 11-00241 LEK-RLP, 2011 WL 5506087, at *2 (D. Hawai`i
Oct. 25, 2011) (quoting Miller v. Rykoff-Sexton, Inc., 845 F.2d
209, 214 (9th Cir. 1988)).
Further, the Ninth Circuit has
explained that “[i]n assessing timeliness, we do not merely ask
whether a motion was filed within the period of time allotted by
the district court in a Rule 16 scheduling order[,]” but “we also
inquire whether the moving party knew or should have known the
facts and theories raised by the amendment in the original
pleading.”
AmerisourceBergen, 465 F.3d at 953 (citations and
internal quotation marks omitted).
Plaintiff’s counsel stated
that, with respect to the claims she sought to add to the
complaint:
“these are claims that we found were more supported
by the deposition testimony of the various DPS representatives
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that we took throughout the summer.”
[Hrg. Trans. at 3.]
It is
clear to this Court that the magistrate judge correctly applied
the law as it relates to futility and delay.
Finally, the magistrate judge was correct when he found
that the law does not support Defendants’ claims of prejudice.
Defendants state that
Plaintiff causes further delay to a trial
already continued twice, and prejudice to the
Defendants in the form of defending further claims
just three months before the trial date, which
also means prejudice in the form of further costs
to reopen depositions of the Plaintiff and seek
further discovery to defend the new claims.
Defendants are not interested in spending more
money, seeking further discovery, reopening
depositions, and delaying trial for a third time
all because the Plaintiff waited nine (9) months
to a year to file a motion to amend a Complaint
the grounds for which amendment existed nine (9)
months to a year ago.
[Mem. in Supp. of Appeal at 7.]
Insofar as Defendants assert
that they are prejudiced because they have only a short time to
defend against the new claims, the Court notes that the
magistrate judge stated at the hearing that the trial date would
be moved.
See Hrg. Trans. at 10-11.
Further, a Third Amended
Rule 16 Scheduling Order (“Third Scheduling Order”) has already
been filed, which extends the dispositive motions deadline to
January 27, 2016,1 the discovery deadline to April 29, 2016, and
1
The Court notes that, on January 27, 2016, Defendants
filed a Motion for Summary Judgment that relates to the Second
Amended Complaint. [Dkt. no. 157.]
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the trial itself to June 28, 2016.
148).]
[Filed 12/30/15 (dkt. no.
Insofar as Defendants assert that they are prejudiced by
increased litigation costs, they are also incorrect.
“Discovery
or other litigation costs become prejudicial when the additional
costs could easily have been avoided had the proposed amendments
been included within the original pleading.”
Fresno Unified Sch.
Dist. v. K. U. ex rel. A.D.U., 980 F. Supp. 2d 1160, 1177 (E.D.
Cal. 2013) (citing AmerisourceBergen, 465 F.3d at 953).
In
AmerisourceBergen,
fifteen months passed between the time
AmerisourceBergen first discovered the possibility
that the Procrit was tainted and its assertion of
this theory in the motion for leave to amend.
Even more detrimental to AmerisourceBergen’s
motion for leave to amend, however, is the fact
that AmerisourceBergen had admitted only three
months before that the products for which it had
not paid Dialysist West, including Procrit, were
genuine. At the time AmerisourceBergen filed its
reply in May 2003, it had all the information
necessary to raise the affirmative defense it now
pursues: AmerisourceBergen knew about the
counterfeit Procrit on the pharmaceuticals market,
acknowledged that it had purchased Procrit from
Dialysist West during that period, and had
previously filed suit because it believed that it
had purchased counterfeit drugs from Dialysist
West. Although AmerisourceBergen vigorously
protests the denial of its motion for leave to
amend, it has never provided a satisfactory
explanation of why, twelve months into the
litigation, it so drastically changed its
litigation story.
AmerisourceBergen, 465 F.3d at 953.
Thus, in AmerisourceBergen,
“[t]he additional cost was prejudicial since it could have been
avoided if the plaintiff had alleged that the product was tainted
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in the original complaint.”
(citation omitted).
Fresno, 980 F. Supp. 2d at 1177
Here, given that the proposed amendments
resulted from information that Plaintiff learned during discovery
– a process for which the delay is at least partially
attributable to the Defendants – any increase in litigation costs
is not prejudicial.
See, e.g., Order Granting in Part and
Denying in Part Plaintiff’s First Motion to Compel Discovery
[Dkt. No. 47], and Second Motion to Compel Discovery [Dkt. no.
70], filed 6/10/15 (dkt. no. 93), at 3-4 (ordering, inter alia,
Defendants to produce electronically stored information, and
setting out a process and timeline for doing so).
The magistrate judge’s decision was not clearly
erroneous, and, in ruling on the Motion, he correctly applied the
law regarding futility, delay, and prejudice to the facts of this
case.
II.
Defendants’ Appeal is therefore DENIED.
Defendants’ Alternative Requests for Relief
Defendants seek leave to extend discovery and depose
Plaintiff, pursuant to Fed. R. Civ. P. 30(a)(2).
The Court notes
that the magistrate judge has already extended discovery.
Third Scheduling Order at ¶ 12.
See
In addition, it is not
appropriate for this Court to grant leave under Rule 30 on an
appeal from a magistrate judge’s decision.
If Defendants desire
to take a deposition pursuant to Rule 30(a)(2), they must file
the appropriate motion with the magistrate judge.
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Plaintiff’s
request is therefore DENIED.
Defendants also seek “an extension to form, parameters,
and deadlines of the motion for summary judgment.”
Supp. of Appeal at 8.]
[Mem. in
In an entering order filed on January 5,
2016, the court reserved ruling on Defendants’ Motion for Summary
Judgment “pending a final resolution on the” Appeal.
154]
[Dkt. no.
The Court noted that a ruling on the Appeal “will be final
after all motions for reconsideration, if any, have been
resolved.”
Defendants’ request regarding the Motion for Summary
Judgment, [dkt. no. 128,] is therefore DENIED.
CONCLUSION
On the basis of the foregoing, Defendants’ Notice of
Appeal to District Court Judge From Magistrate Judge Kurren’s
Order, Dated December 8, 2015 [Dkt. No. 132] Granting Plaintiff’s
Motion for Leave to File Second Amended Complaint, filed
December 14, 2015, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 28, 2016.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
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CAROLYN C. RITCHIE VS. STATE OF HAWAI`I, ET AL; CIVIL 14-00046
LEK; ORDER DENYING DEFENDANTS’ NOTICE OF APPEAL TO DISTRICT COURT
JUDGE FROM MAGISTRATE JUDGE KURREN’S ORDER, DATED DECEMBER 8,
2015 [DKT. NO. 132]GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT
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