Cumis Insurance Society, Inc. v. CU Pacific Audit Solutions, LLC

Filing 227

ORDER GRANTING DEFENDANT/THIRD-PARTY PLAINTIFF CU PACIFIC AUDIT SOLUTIONS, LLC'S MOTION FOR ENTRY OF JUDGMENT PURSUANT TO RULE 54(C) re 224 Motion. Signed by JUDGE LESLIE E. KOBAYASHI on 03/01/2016. CU Pacif ic's Motion for Entry of Judgment Pursuant to Rule 54(c), filed January 21, 2016, is HEREBY GRANTED, although on different grounds than those argued in the Motion. This Court FINDS that CU Pacific has waived its entitlement to recover any furthe r amounts from Third-Party Defendants, Takushi, Nishida, and Cheung as to Count I of CU Pacific's Second Amended Third Party Complaint, filed January 7, 2015. There being no remaining claims in this case, this Court DIRECTS the Clerk's Offi ce to enter final judgment and close this case immediately. (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 served by first class mail on March 2, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CUMIS INSURANCE SOCIETY,
INC.,

)
)
)
Plaintiff,
)
)
vs.
)
)
CU PACIFIC AUDIT SOLUTIONS,
)
LLC,
)
)
Defendant/Third)
Party Plaintiff,
)
)
vs.
)
)
DONA TAKUSHI, JENNY NISHIDA, )
NICOLE CHEUNG and OTS
)
EMPLOYEES FEDERAL CREDIT
)
UNION,
)
)
Third-Party
)
Defendants.
)
_____________________________ )

CIVIL NO. 14-00140 LEK-BMK

ORDER GRANTING DEFENDANT/THIRD-PARTY PLAINTIFF
CU PACIFIC AUDIT SOLUTIONS, LLC’S MOTION FOR
ENTRY OF JUDGMENT PURSUANT TO RULE 54(C)
Before the Court is Defendant/Third-Party Plaintiff
CU Pacific Audit Solutions, LLC’s (“CU Pacific”) Motion for Entry
of Judgment Pursuant to Rule 54(c) (“Motion”), filed on
January 21, 2016.

[Dkt. no. 224.]

None of the pro se Third

Party Defendants – Dona Takushi (“Takushi”), Jenny Nishida
(“Nishida”), and Nicole Cheung (“Cheung,” collectively “Former
Employee Defendants”) – responded to the Motion.

The Court finds

this matter suitable for disposition without a hearing pursuant

to Rule LR7.2(d) of the Local Rules of Practice of the United
States District Court for the District of Hawai`i (“Local
Rules”).

After careful consideration of the Motion and the

relevant legal authority, CU Pacific’s Motion is HEREBY GRANTED,
although on different grounds than those argued in the Motion.
BACKGROUND
The relevant factual and procedural background is set
forth in this Court’s November 30, 2015 Order Granting
Defendant/Third Party Plaintiff’s Motion for Partial Summary
Judgment on Second Amended Third Party Complaint (“11/30/15
Order”).1

[Dkt. no. 186 at 2-4.2]

As noted in the 11/30/15

Order, CU Pacific filed its Second Amended Third Party Complaint
on January 7, 2015.

[Dkt. no. 60.]

It alleges the following

claims: a claim for indemnity, contribution, reimbursement and/or
equitable subrogation against the Former Employee Defendants
(“Third Party Count I”); and a claim that Third-Party Defendant
OTS Employees Federal Credit Union (“OTS”) made
misrepresentations in the Management Representation Letters
(“Third Party Count II”).

On June 30, 2015, this Court granted

1

CU Pacific filed the Motion for Partial Summary Judgment
on Second Amended Third Party Complaint (“Motion for Summary
Judgment”) on September 2, 2015. [Dkt. no. 136.] None of the
Former Employee Defendants responded to the Motion for Summary
Judgment. See 11/30/15 Order at 1.
2

The 11/30/15 Order is also available at 2015 WL 7737311.
2

OTS’s February 9, 2015 motion to dismiss Third-Party Count II
with prejudice (“6/30/15 Order”).

[Dkt. nos. 78, 110.]

Pursuant

to the 6/30/15 Order, the Clerk’s Office terminated OTS as a
party on July 29, 2015.
In the 11/30/15 Order, this Court granted summary
judgment – pursuant to 18 U.S.C. § 3664(1) – in favor of CU
Pacific as to Third Party Count I against Nishida in the amount
of $330,459.99, against Cheng in the amount of $21,607.00, and
against Defendant Takushi in the amount of $78,138.55.
Order at 11-12.]

[11/30/15

This Court stated that: “To the extent that

CU Pacific seeks judgment against the Former Employee Defendants
in amounts beyond the amounts of the restitution orders, it must
establish entitlement to the additional amounts without regard to
§ 3664(1).”

[Id. at 11.]

On December 29, 2015, CU Pacific obtained an entry of
default against Nishida.

[Dkt. no. 218.]

CU Pacific has not

moved for default judgment against Nishida.
On January 12, 2016, this Court approved and filed the
Stipulation for Partial Dismissal with Prejudice and Order
(“1/12/16 Stipulation”).

[Dkt. no. 221.]

Plaintiff CUMIS

Insurance Society, Inc. (“CUMIS”), CU Pacific, Takushi, and Chung
stipulated to dismiss, with prejudice: CUMIS’s Complaint against
CU Pacific; [filed 3/20/14 (dkt. no. 1);] and CU Pacific’s Second

3

Amended Third Party Complaint as to OTS only.3

The Clerk’s

Office terminated CUMIS as a party on January 12, 2016.
In the instant Motion, CU Pacific states that it “is
electing to forego any additional judgments against the Former
Employee Defendants.”

[Mem. in Supp. of Motion at 2.]

It asks

this Court to reduce the 11/30/15 Order to a final judgment
pursuant to Fed. R. Civ. P. 54(c).

On January 22, 2016, this

Court held a status conference regarding the remaining claims in
this case and discussed the filing of the instant Motion.

Cheung

participated in the status conference, but Takushi did not
appear.

[Minutes, filed 1/22/16 (dkt. no. 226).]
DISCUSSION
Fed. R. Civ. P. 54(c) states: “A default judgment must

not differ in kind from, or exceed in amount, what is demanded in
the pleadings.

Every other final judgment should grant the

relief to which each party is entitled, even if the party has not
demanded that relief in its pleadings.”

Parties generally invoke

Rule 54(c) to obtain more relief than they demanded in their
pleadings.

See, e.g., Robinson v. Delgado, No. CV 02-1538 NJV,

2010 WL 1838866, at *3 (N.D. Cal. May 3, 2010) (“The Ninth
Circuit has held that ‘if a party, by virtue of Rule 54(c), is
3

The Court notes that the 1/12/16 Stipulation was
unnecessary as to OTS in light of the 6/30/15 Order, which
dismissed Third Party Count II (the only count in the Second
Amended Third Party Complaint against OTS) with prejudice.
4

entitled to some form of relief beyond that included in judgment,
the time to demand such relief is immediately after the entry of
judgment ([Fed. R. Civ. P.] 59(e)), or at the latest, on appeal.’
Rule 54(c) provides that the latest point at which the plaintiff
may demand punitive damages would be on appeal.” (quoting
Brotherhood of Locomotive Firemen and Enginemen v. Butte, A. & P.
Ry. Co., 286 F.2d 706, 709 (9th Cir. 1961))).
This Court CONCLUDES that Rule 54(c) is inapplicable to
the instant case.

CU Pacific as already obtained partial summary

judgment on Third-Party Count I against the Former Employee
Defendants.

To the extent that CU Pacific prayed for, or

otherwise could have recovered, more than the amounts granted on
summary judgment in the 11/30/15 Order, this Court FINDS that the
instant Motion waived CU Pacific’s entitlement to such amounts.
Thus, there are no remaining issues as to Third-Party Count I.
As acknowledged in the 1/12/16 Stipulation, Third-Party Count I
was the only remaining claim in this case.

All claims against

all parties in this case have now been resolved.

This Court

therefore GRANTS the Motion insofar as this Court will direct the
entry of final judgment in this case.
CONCLUSION
On the basis of the foregoing, CU Pacific’s Motion for
Entry of Judgment Pursuant to Rule 54(c), filed January 21, 2016,
is HEREBY GRANTED, although on different grounds than those
5

argued in the Motion.

This Court FINDS that CU Pacific has

waived its entitlement to recover any further amounts from ThirdParty Defendants, Takushi, Nishida, and Cheung as to Count I of
CU Pacific’s Second Amended Third Party Complaint, filed
January 7, 2015.

There being no remaining claims in this case,

this Court DIRECTS the Clerk’s Office to enter final judgment and
close this case immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 1, 2016.

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

CUMIS
ETC.;
PARTY
ENTRY

INSURANCE SOCIETY, INC. VS. CU PACIFIC AUDIT SOLUTIONS,
CIVIL 14-00140 LEK-BMK; ORDER GRANTING DEFENDANT/THIRD
PLAINTIFF CU PACIFIC AUDIT SOLUTIONS, LLC’S MOTION FOR
OF JUDGMENT PURSUANT TO RULE 54(C)

6