Ritchie v. State of Hawaii, Department of Public Safety

Filing 452

ORDER DENYING PLAINTIFF'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW, OR, IN THE ALTERNATIVE, A NEW TRIAL re 428 Motion. Signed by JUDGE LESLIE E. KOBAYASHI on 07/27/2017. (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
CAROLYN C. RITCHIE,

)
)
Plaintiff,
)
)
vs.
)
)
THE STATE OF HAWAI`I,
)
DEPARTMENT OF PUBLIC SAFETY; )
and NEAL WAGATSUMA, in his
)
official capacity as Warden
)
of the Kauai Community
)
Correctional Center,
)
Department of Public Safety, )
State of Hawai`i, and in his )
individual capacity,
)
)
Defendants.
)
_____________________________ )

CIVIL 14-00046 LEK-KJM

ORDER DENYING PLAINTIFF’S RENEWED MOTION FOR JUDGMENT
AS A MATTER OF LAW, OR, IN THE ALTERNATIVE, A NEW TRIAL
On April 27, 2017, Plaintiff Carolyn L. Ritchie
(“Plaintiff”) filed her Renewed Motion for Judgment as a Matter
of Law or, in the Alternative, a New Trial (“Motion”).
428.]

[Dkt. no.

Defendants State of Hawai`i, Department of Public Safety

(“DPS”) and Neal Wagatsuma, in his individual capacity
(“Wagatsuma” and collectively “Defendants”), filed a memorandum
in opposition on May 12, 2017, and Plaintiff filed a reply on
May 26, 2017.

[Dkt. nos. 437, 438.]

The Court finds this matter

suitable for disposition without a hearing 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”).

The

Motion is denied for the reasons set forth below.
BACKGROUND
The background of this matter is set forth in the
Court’s Order Denying Plaintiff’s Oral Motion for Judgment as a
Matter of Law, filed on March 30, 2017 (“3/30/17 Order”).1
no. 403.2]

[Dkt.

The Court repeats only those facts helpful to the

instant Motion.

The trial proceeded on the following claims:

unlawful retaliation under Title VII of the Civil Rights Act of
1964, as amended (“Title VII”), 42 U.S.C. § 2000e-1, et seq.,
against DPS (“Count I”); violation of 42 U.S.C. § 1983 against
Wagatsuma (based on violation of the First Amendment to the
United States Constitution) (“Count II”); unlawful incitement or
attempted incitement of retaliation in violation of Haw. Rev.
Stat. § 378-2 against Wagatsuma (“Count III”); intentional
infliction of emotional distress (“IIED”) against Wagatsuma
(“Count V”); and defamation against Wagatsuma (“Count VI”).

On

November 30, 2016, Plaintiff voluntarily withdrew Count VI with
prejudice.

[Minutes, filed 11/30/16 (dkt. no. 337).]
On December 20, 2016, after sixteen days of trial, the

jury reached a verdict.

[Minutes, filed 12/20/16 (dkt. no.

1

Plaintiff orally presented her Motion for Judgment as a
Matter of Law on December 7, 2016, pursuant to Fed. R. Civ. P.
50(a). [Minutes, filed 12/7/16 (dkt. no. 349).]
2

The 3/30/17 Order is also available at 2017 WL 1239143.
2

397).]

The jury found in favor of Defendants on all counts.

See Special Verdict Form as to Defendant State of Hawai`i,
Department of Public Safety (“DPS Verdict Form”), filed 12/20/16
(dkt. no. 399); Special Verdict Form as to Defendant Wagatsuma
(“Wagatsuma Verdict Form”), filed 12/20/16 (dkt. no. 400).
STANDARD
This district court has explained:
Federal Rule of Civil Procedure 50(b) allows
a party to file a renewed motion for judgment as a
matter of law after entry of judgment on a jury
verdict. To file a renewed motion under Rule
50(b), a party generally must first file a motion
for judgment as a matter of law under Rule 50(a)
before the case is submitted to the jury.
E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,
961 (9th Cir. 2009). If the court denies or
defers ruling on the Rule 50(a) motion and the
jury returns a verdict against the moving party,
the party may then renew the motion under Rule
50(b). Id. Because it is a “renewed” motion, a
party cannot “raise arguments in its post-trial
motion for judgment as a matter of law under Rule
50(b) that it did not raise in its preverdict Rule
50(a) motion.” Id. (quoting Freund v. Nycomed
Amersham, 347 F.3d 752, 761 (9th Cir. 2003)).
The rule that a party must move for judgment
as a matter of law before the case is submitted to
a jury does not apply if the motion alleges
inconsistencies in the answers given to a special
verdict. Pierce v. Souther[n] Pacific Transp.
Co., 823 F.2d 1366, 1369 (9th Cir. 1987) (“When a
special verdict does not support a judgment a
reviewing court may make an exception to the Rule
50(b) requirement of a motion for directed verdict
as a prerequisite to a motion [judgment
notwithstanding the verdict].”); Zhang v. American
Gem Seafoods, Inc., 339 F.3d 1020, 1033 (9th Cir.
2003).

3

In ruling on a 50(b) motion, the Court may
allow judgment on the verdict, order a new trial,
or reverse the jury and direct the entry of
judgment as a matter of law. Fed. R. Civ. P.
50(b). The court will direct judgment as a matter
of law if “the evidence permits only one
reasonable conclusion, and that conclusion is
contrary to the jury’s verdict.” Go Daddy
Software, Inc., 581 F.3d at 961 (quoting Josephs
v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir.
2006)). When considering the motion, the court
“may not make credibility determinations or weigh
the evidence.” Id. (quoting Reeves v. Sanderson
Plumb[]ing Prods., Inc., 530 U.S. 133, 150
(2000)). Instead, the court reviews the evidence
“in the light most favorable to the nonmoving
party” and draws “all reasonable inferences in
that party’s favor.” Id. (quoting Josephs, 443
F.3d at 1062)). “While the district court may not
resolve conflicts in the testimony or weigh the
evidence, it may evaluate evidence at least to the
extent of determining whether there is substantial
evidence to support the verdict. ‘[A] mere
scintilla of evidence will not suffice.’” Von
Zuckerstein v. Argonne Nat’l Laboratory, 984 F.2d
1467, 1471 (7th Cir. 1993) (citing La Montagne v.
American Convenience Products, Inc., 750 F.2d
1405, 1410 (7th Cir. 1984)).
The Ninth Circuit has defined substantial
evidence as “such relevant evidence as reasonable
minds might accept as adequate to support a
conclusion even if it is possible to draw two
inconsistent conclusions from the evidence.”
Maynard v. City of San Jose, 37 F.3d 1396, 1404
(9th Cir. 1994) (citing George v. City of Long
Beach, 973 F.2d 706, 709 (9th Cir. 1992)).
Dawkins v. City & Cty. of Honolulu, Civ. No. 10-00086 HG-KSC,
2012 WL 1982461, at *3-4 (D. Hawai`i May 31, 2012) (some
alterations in Dawkins).

4

In addition,
Federal Rule of Civil Procedure 50(b) allows
a party filing a renewed motion for judgment as a
matter of law to include an alternative request
for a new trial under Rule 59. Rule 59 allows the
court to grant a new trial after a jury trial “for
any reason for which a new trial has heretofore
been granted in an action at law in federal
court.” Fed. R. Civ. P. 59(a). Although Rule 59
does not specify the grounds on which a court may
order a new trial, historically recognized grounds
include: “that the verdict is against the weight
of the evidence, that the damages are excessive,
or that, for other reasons, the trial was not fair
to the party moving.” Molski v. M.J. Cable, Inc.,
481 F.3d 724, 729 (9th Cir. 2007) (quoting
Passantino v. Johnson & Johnson Consumer Prods.,
212 F.3d 493, 510 n.5 (9th Cir. 2000)).
“When a motion for a new trial is based on
insufficiency of the evidence, a ‘stringent
standard applies’ and a new trial may be granted
‘only if the verdict is against the great weight
of the evidence or it is quite clear that the jury
has reached a seriously erroneous result.’” MLM
Property, LLC v. Country Cas. Ins. Co., 2010 WL
1948609, at *2 (D. Or. 2010) (quoting Digidyne
Corp. v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th
Cir. 1984)).
Id. at *4.

DISCUSSION
I.

DPS Verdict on Count I
Plaintiff argues that “[t]he jury’s answer to Question

No. 3 of the DPS Verdict Form finding a failure of proof that
[Plaintiff] had been subjected to an adverse employment action is
. . . against the great weight of the evidence.”

[Mem. in Supp.

of Motion at 13-14.]

“Did Plaintiff

Question 3 asked the jury:
5

prove by a preponderance of the evidence that she suffered
adverse employment actions?”

[DPS Verdict Form at 2.]

The jury

answer “No,” thus finding in favor of DPS on Count I.
A claim for Title VII retaliation requires a plaintiff
to show:

“(1) [s]he engaged in a protected activity; (2) [s]he

suffered an adverse employment action; and (3) there was a causal
connection between the two.”

Jinadasa v. Brigham Young Univ. -

Haw., Civil No. 14-00441 SOM/BMK, 2015 WL 3407832, at *6 (D.
Hawai`i May 27, 2015) (citing Surrell v. Cal. Water Serv. Co.,
518 F.3d 1097, 1108 (9th Cir. 2008)).

This district court has

stated that “[a]n ‘adverse employment action’ is an action that
is ‘materially adverse’ to a reasonable employee or job
applicant.”

Lee v. Hawai`i, Civ. No. 09-00032 SOM/KSC, 2010 WL

235009, at *5 (D. Hawai`i Jan. 20, 2010) (quoting Burlington N. &
Santa Fe. Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165
L. Ed. 2d 345 (2006)).

Likewise, the Jury Instructions

explained, “[a]n action is an adverse employment action if a
reasonable employee would have found the action materially
adverse, which means it might have dissuaded a reasonable worker
from engaging in protected activity.”

[Jury Instructions, filed

12/12/16 (dkt. no. 359), at 24 (Jury Instruction No. 21).]
In Burlington Northern, the United States Supreme Court
explained, “[w]e phrase the standard in general terms because the
significance of any given act of retaliation will often depend
6

upon the particular circumstances.
at 69.

Context matters.”

548 U.S.

Plaintiff cites a number of allegedly adverse employment

actions.

See Mem. in Supp. of Motion at 5-6.

In the 3/30/17

Order the Court explained:
DPS, however, has produced sufficient
evidence from which a jury could infer that the
investigations, suspension, and general treatment
of Plaintiff were due to her repeated violations
of the rules, and that the search and eventual
hire of a full-time social worker were the result
of the facility’s needs. This evidence includes,
but is not limited to, improper communication with
inmates – including passing notes between inmates,
giving inmates candy, and engaging in an ongoing
correspondence with a [Kaua`i Community
Correctional Center (“KCCC”)] inmate using someone
else’s name – and not altering her behavior when
counseled by members of KCCC staff. Moreover,
Lieutenant Thomas Lindsey (“T. Lindsey”) testified
that the length of the first investigation was, in
part, due to the many other responsibilities that
he had at KCCC, and Wesley Mun, DPS Corrections
Health Care Administrator, and Michael Hoffman
[(“Hoffman”)], former director of the institutions
division at DPS, testified that, while Plaintiff’s
investigation was long, other investigations have
been longer. See Minutes, filed 11/18/16 (dkt.
no. 319) (T. Lindsey examination); Minutes, filed
12/1/16 (Hoffman examination); Minutes, filed
12/2/16 (dkt. no. 345) (Mun examination).
2017 WL 1239143, at *3 (footnote omitted).

Given the context

here, there was substantial evidence to support the jury’s
finding that a reasonable employee in Plaintiff’s position would
not be deterred from reporting discrimination.

Moreover, the

jury’s finding is not against the great weight of the evidence.
See Dawkins, 2012 WL 1982461, at *3-4 (citations omitted).

7

Accordingly, the Motion is denied as to Count I.
II.

Wagatsuma Verdict on Count II
Plaintiff asserts that “[t]he jury’s answers to

Questions Nos. 1 and 2 of the Wagatsuma Verdict Form are
factually inconsistent” because “[e]ither there was no
retaliation, as the jury found by its response to Question No. 1,
or there was retaliation . . . but it was objectively reasonable
for Wagatsuma to believe his role in that retaliation did not
violate [Plaintiff]’s First Amendment right[s].”
of Motion at 15 (emphases in original).]

[Mem. in Supp.

She seeks entry of

judgment in her favor on Count II, or, in the alternative, a new
trial on this claim.

[Id. at 17.]

“To state a claim under 42 U.S.C. § 1983, a plaintiff
must allege:

(1) a violation of a right secured by the

Constitution and laws of the United States; and (2) that the
deprivation was committed by a person acting under color of law.”
Ragasa v. Cty. of Kaua`i, CIVIL NO. 14-00309 DKW-BMK, 2016 WL
543118, at *11 (D. Hawai`i Feb. 8, 2016) (citing West v. Atkins,
487 U.S. 42, 48 (1988)).

The Wagatsuma Verdict Form asked the

jury:
1.

Did Defendant Wagatsuma prove by a
preponderance of the evidence that he did not
retaliate against Plaintiff as a result of
the complaint she made about him to the
Hawai`i Disability Rights Center (“HDRC”)
and/or Equal Employment Opportunity
8

Commission (“EEOC”)?
2.

Did Defendant Wagatsuma prove by a
preponderance of the evidence that it was
objectively reasonable for him to believe
that he did not violate Plaintiff’s First
Amendment right to send complaints about him
to the HDRC and/or the EEOC when he
participated in having two investigations
done regarding Plaintiff’s alleged rule
violations and Plaintiff placed on leave for
17½ months pending the completion of the
first investigation and, as a consequence of
the first investigation, the 15-day
suspension without pay disciplinary sanction?

[Wagatsuma Verdict Form at 2.]
questions.

The jury answered “Yes” to both

Thus, the jury found that Wagatsuma proved that he

did not retaliate against Plaintiff, and it logically follows
that the jury could also find that Wagatsuma proved by a
preponderance of the evidence that his beliefs were objectively
reasonable.3
Second, Plaintiff contends that “the jury’s answers to
Questions Nos. 1 and 2 of the Wagatsuma Verdict Form . . . lack
any evidentiary support.”

[Mem. in Supp. of Motion at 16.]

In

support of her position, Plaintiff alleges that “Wagatsuma

3

The Court also notes that, while Plaintiff states that
“Questions Nos. 1 and 2 of the Wagatsuma Special Verdict Form
were offered to the jury by the Court, based on the insistence of
the Defendants, and over [Plaintiff]’s vehement objections,”
[Mem. in Supp. of Motion at 15,] this is not supported by the
record. Plaintiff objected to limiting Count II to her reports
to the HDRC and EEOC, but she did not object to the actual
questions she now challenges in the Motion. [Trans. of 12/9/16
status conference, filed 4/11/17 (dkt. no. 421), at 9-10.]
9

admitted that he sought to silence [Plaintiff]’s complaint about
him and [Life Time Stand (“LTS”)] by having the two
investigations of [Plaintiff]’s alleged rule violations
performed,” and that “Defendants made no effort to identify which
of [Plaintiff]’s complaints prompted the investigations and the
other adverse employment actions taken against [Plaintiff] as a
result.”

[Id.]

Further, Plaintiff asserts that “no evidence was

offered at trial regarding Wagatsuma’s view as to whether his
participation in the two investigations of [Plaintiff] did or did
not violate [Plaintiff]’s right under the First Amendment to make
complaints about LTS to the HDRC or the EEOC.”

[Id. at 17.]

First, Plaintiff overstates the evidence in the record.
She cites two trial exhibits to support her position that
Wagatsuma “admitted” using the investigations to silence her, the
first of which is a letter from Wagatsuma to Hoffman, dated
April 15, 2010 (“4/15/10 Letter”).

[Tr. Exh. P-66.]

In the

4/15/10 Letter, Wagatsuma voices his frustration with and
concerns about Plaintiff, and states that, “in this case, some
type of action is [sic] must be taken.”

[4/15/10 Letter at 2.]

However, Wagatsuma also states that an inmate told him “that she
was shocked when [Plaintiff] asked her if she was willing to be
wired to secretly tape my talks to inmates.”

[Id. at 1.]

While

it is clear from the record that nothing came of these
allegations, it provides one of many possible reasons for the
10

first investigation.

The Court may not weigh the evidence or

make credibility determinations.
at *3 (citation omitted).

See Dawkins, 2012 WL 1982461,

Similarly, Plaintiff cites a letter

from Wagatsuma to Hoffman dated November 14, 2012 (“11/14/12
Letter”) regarding the second investigation, [Tr. Exh. P-327,] in
which he states:
Earlier this year, [Plaintiff] filed a Civil
Rights complaint . . . . In response to that
complaint, I made it clear she was attempting to
build a case against me, and this facility as a
ploy to smokescreen her criminal activities.
Throughout most of her employment, [Plaintiff] did
whatever she pleased and played a cat and mouse
game with us. As her activities escalated, we
were handcuffed because of the Whistleblower’s
law, and in the process, institutional order and
safety was sacrificed.
The issue with this former employee far
transcends taking responsibility for her actions.
Because of her mindset, she will continue to
slander and circumvent. It is for this reason
that we are recommending the case be referred to
the Attorney General’s office for criminal
prosecution.
On its face, the 11/14/12 Letter states that Wagatsuma knew about
the EEOC complaint and that the second investigation was not an
effort to silence Plaintiff, but a response to her actions at
KCCC.
The Court has already explained the evidence Wagatsuma
provided to explain Plaintiff’s treatment at KCCC.
Section I.

See supra

The jury’s verdict on Count II is supported by

substantial evidence and is not against the great weight of the
11

evidence.

The Motion is denied as to Count II.

III. Wagatsuma Verdict on Count III
Next, Plaintiff challenges the jury’s finding that
Plaintiff did not prove “by a preponderance of the evidence that
Defendant Wagatsuma incited or attempted to incite DPS employees
to retaliate against Plaintiff for her complaints about Defendant
Wagatsuma.”

[Wagatsuma Verdict Form at 4.]

Plaintiff states

that “[t]he evidence proved the investigations were retaliatory
and without legitimate non-pretextual basis.”
Motion at 18.]

[Mem. in Supp. of

Again, Plaintiff requests that the Court enter

judgment in her favor or grant a new trial.

[Id. at 20.]

The

Court has already identified a significant amount of evidence
that could reasonably lead a jury to find that Wagatsuma did not
incite or attempt to incite DPS employees to retaliate against
Plaintiff, and that there were legitimate reasons for DPS’s
investigations and other actions.

See supra Section I.

Plaintiff also identifies two pieces of evidence that
she contends were “fabricated.”

[Mem. in Supp. of Motion at 19.]

Even if this is true, the Court is not permitted to weigh the
evidence and cannot say that this evidence should have been given
more weight than any other evidence.

The jury’s verdict on Count

III is supported by substantial evidence and is not against the
great weight of the evidence.

The Motion is denied as to Count

III.
12

IV.

Wagatsuma Verdict on Count V
Plaintiff’s challenge to Count V is not related to the

verdict itself, but to the Court’s exclusion of evidence that
Plaintiff believes would have shown that Wagatsuma’s actions in
the LTS program were “outrageous.”
consisted of:

The evidence excluded

(1) “example[s] of the sexually violent movie

excerpts Wagatsuma admitted he showed to inmates”; and
(2) “expert testimony of by Dr. Marcus Forbes that would have put
Wagatsuma’s bizarre and inevitably harmful ‘counseling’ practices
into context.”

[Mem. in Supp. of Motion at 21.]

Plaintiff

argues that “[w]ithout this evidence, it was impossible for the
jury to evaluate whether Wagatsuma’s campaign to silence
[Plaintiff] . . . was outrageous.”

[Id. at 22.]

First, Plaintiff requests either entry of judgment in
her favor or a new trial on Count V because of this alleged error
by the Court.

[Id. at 23.]

However, Rule 50 “is a vehicle to

challenge the sufficiency of the evidence presented in a case,
not evidentiary rulings.”

Protostorm, LLC v. Antonelli, Terry,

Stout & Kraus, LLP, No. 08-CV-931(PKC)(JO), 2015 WL 3605143, at
*15 (E.D.N.Y. June 5, 2015) (some citations omitted) (citing
Gierlinger v. Gleason, 160 F.3d 858, 869 (2d Cir. 1998)).
Because Plaintiff only seeks review of the Court’s evidentiary
rulings related to Count V, she may only seek a new trial on this
issue.
13

Next, “[t]he elements of [IIED] pursuant to Hawaii law,
are:

(1) that the act allegedly causing the harm was intentional

or reckless, (2) that the act was outrageous, and (3) that the
act caused (4) extreme emotional distress to another.”

Barber v.

Ohana Military Cmtys., LLC, Civil No. 14-00217 HG-KSC, 2014 WL
3529766, at *10 (D. Hawai`i July 15, 2014) (citing Enoka v. AIG
Hawaii Ins. Co., Inc., 128 P.3d 850, 872 (Haw. 2006)).

Plaintiff

alleged that DPS and Wagatsuma retaliated against her for
reporting her concerns about the LTS program to officials within
DPS and to outside agencies.

Thus, for the purposes of an IIED

claim, the retaliatory act would have to be outrageous – whether
or not the LTS program itself is or is not outrageous is wholly
irrelevant.4

The Court did not err by excluding this evidence

pursuant to Fed. R. Evid. 402 and 403, and it was not unfair to
Plaintiff for the Court to do so.
at *4 (citation omitted).
V.

See Dawkins, 2012 WL 1982461,

The Motion is denied as to Count V.

Unfair Trial
Finally, Plaintiff argues that “[t]he individual and

collective effect of the Court’s rulings on the evidence, jury
instructions, and verdicts prejudiced [Plaintiff] and caused a
miscarriage of justice to such a degree that [Plaintiff] should
be granted a new trial.”

[Mem. in Supp. of Motion at 23

4

Plaintiff also admitted that she never went to an LTS
program meeting, and that she did not see the film in question.
14

(internal quotation marks omitted).]

Defendants submit that

“Rule 59 does not provide a vehicle that [Plaintiff] can use to
demand that the trial judge revisit the evidentiary rulings.
Such rulings are law of the case.”

[Mem. in Opp. at 15.5 ]

This district court has stated:
The law of the case doctrine is a judicial
invention designed to aid in the efficient
operation of court affairs. United States v.
Thrasher, 483 F.3d 977, 981 (9th Cir. 2007)
(citing Herrington v. County of Sonoma, 12 F.3d
901, 904 (9th Cir. 1993)). Under the doctrine, a
court is “generally precluded from reconsidering
an issue previously decided by the same court[.]”
United States v. Lummi Indian Tribe, 235, F.3d
443, 452 (9th Cir. 2000). For the doctrine to
apply, the issue in question must have been
“decided explicitly or by necessary implication in
the previous disposition.” Id. (internal
quotation and citation omitted). Application of
the doctrine is discretionary and a trial judge’s
decision to apply the doctrine is thus reviewed
for an abuse of discretion. Id.
A court abuses its discretion in applying the
law of the case if: “(1) the first decision was
clearly erroneous; (2) an intervening change in
the law occurred; (3) the evidence on remand was
substantially different; (4) other changed
circumstances exist; or (5) a manifest injustice
would otherwise result.” Ingle v. Circuit City,
408 F.3d 592, 594 (9th Cir. 2005). “Law of the
case should not be applied woodenly in a way
inconsistent with substantial justice.” United
States v. Miller, 822 F.2d 828, 832-33 (9th Cir.

5

Plaintiff argues that the Court should strike or disregard
Defendants arguments because they do not comply with the Ninth
Circuit’s appellate rules. See Reply at 4. Plaintiff does not
explain why she thinks those rules apply here, and the Court will
continue to apply the Local Rules and the Federal Rules of Civil
Procedure.
15

1987) (citing Moore v. Js. H. Matthews & Co., 682
F.2d 830, 833-34 (9th Cir. 1982)).
Diamond Resort Haw. Corp. v. Bay West Kailua Bay, LLC, CV. No.
10-00117 DAE-BMK, 2011 WL 2610203, at *4 (D. Hawai`i July 1,
2011) (alteration in Diamond Resort).

Plaintiff argues that

exception four applies here because the trial is over.
11.]

Plaintiff is incorrect.

[Reply at

Cf. United States v. Alexander,

106 F.3d 874, 877 (9th Cir. 1997) (“The law of the case doctrine
ordinarily precludes reconsideration of a previously decided
issue.

In this circuit, a mistrial is not a cause for an

exception.” (citation omitted)).
Plaintiff also asserts that exception five applies and
that “Ninth Circuit law requires an assessment of whether the
cumulative effect of harmless errors was enough to prejudice a
party’s rights.”

[Reply at 11 (citing United States v. de Cruz,

82 F.3d 856, 868 (9th Cir. 1996)).]
holding in de Cruz.

Plaintiff overstates the

See de Cruz, 82 F.3d at 868 (“Although

individual errors looked at separately may not rise to the level
of reversible error, their cumulative effect may nevertheless be
so prejudicial as to require reversal.

However, the fact that

errors have been committed during a trial does not mean that
reversal is required.” (citation and internal quotations marks
omitted)).

Moreover, Plaintiff cites rulings that the Court made

at different times throughout the trial, and simply repeats

16

arguments that the Court has already considered.
Supp. of Motion at 24-26.

See Mem. in

These rulings do not constitute

manifest injustice individually or collectively.

The Motion is

denied as to Plaintiff’s unfair trial claim.
CONCLUSION
On the basis of the foregoing, Plaintiff Carolyn L.
Ritchie’s Renewed Motion for Judgment as a Matter of Law or, in
the Alternative, a New Trial, filed on April 27, 2017, is HEREBY
DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 27, 2017.

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

CAROLYN C. RITCHIE VS. THE STATE OF HAWAII, DEPARTMENT OF SAFETY,
ET AL; CIVIL 14-00046 LEK-KJM; ORDER DENYING PLAINTIFF’S RENEWED
MOTION FOR JUDGMENT AS A MATTER OF LAW, OR IN THE ALTERNATIVE, A
NEW TRIAL

17