Thomas et al v. The Alcoholic Rehabilitation Services of Hawaii, Inc.

Filing 103

ORDER DENYING PLAINTIFFS' MOTION FOR SANCTION UNDER RULE 11(C)(2) AND RULE 30 AND UNDER MODAL RULES 3.3, 3.4, AND 8.4 MISCONDUCT re 87 Motion for Sanctions. 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). 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
MICHAEL THOMAS; DEBORAH LEE
THORPE, Personal
Representative of the Estate
of Blake Snyder, Deceased;
DEBORAH LEE THORPE,
Individually,

)
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
THE ALCOHOLIC REHABILITATION )
)
SERVICES OF HAWAII, INC.,
)
)
Defendant.
_____________________________ )

CIVIL 14-00176 LEK-BMK

ORDER DENYING PLAINTIFFS’ MOTION FOR
SANCTION UNDER RULE 11(C)(2) AND RULE 30 AND
UNDER MODAL RULES 3.3, 3.4, AND 8.4 MISCONDUCT
Before the Court is a Motion for Sanction Under Rule
11(c)(2) and Rule 30 and Under Modal1 Rules 3.3, 3.4, and 8.4
Misconduct (“Motion”) filed on December 15, 2015 by pro se
Plaintiffs Michael Thomas (“Thomas”); Deborah Lee Thorpe,
Personal Representative of the Estate of Blake Tyler Snyder
(“Snyder”), Deceased; and Deborah Lee Thorpe, Individually
(“Thorpe,” collectively “Plaintiffs”).

[Dkt. no. 87.]

Defendant

the Alcoholic Rehabilitation Services of Hawaii, Inc.
(“Defendant”) filed its memorandum in opposition on January 4,
2016.

[Dkt. no. 90.]

1

It is clear to the Court that Plaintiffs are citing the
American Bar Association’s Model Rules of Professional Conduct.

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, supporting and opposing memoranda, and the relevant legal
authority, the Motion is HEREBY DENIED for the reasons set forth
below.
BACKGROUND
The Motion arises out of ongoing litigation between the
parties related to Plaintiffs’ efforts to get Snyder admitted to
Defendant’s Hina Mauka facility.

Snyder was not admitted to Hina

Mauka, and he unfortunately died a few weeks later.

[Notice of

Removal, filed 4/15/14 (dkt. no. 1), Exh. A (First Amended
Complaint) (“Amended Complaint”) at ¶¶ 43-44.]

Plaintiffs’

Amended Complaint includes claims for, inter alia, violations of
§ 504 of the Rehabilitation Act of 1973, slander, and intentional
infliction of emotional distress.

[Id. ¶¶ 53-67.]

The Motion seeks Fed. R. Civ. P. 11 and Fed. R. Civ. P.
30 sanctions against Defendant’s attorney Gregory K. Markham,
Esq., and also alleges that he violated the Hawai`i Rules of
Professional Conduct.

[Motion at 2.]

2

DISCUSSION
Plaintiffs are proceeding pro se, and as such the Court
must construe their filings liberally.

See, e.g., Pregana v.

CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2015 WL 196667,
at *2 (D. Hawai`i Apr. 30, 2015) (“The Court liberally construes
the [plaintiffs’] filings because they are proceeding pro se.”
(citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987))).
I.

Hawai`i Rules of Professional Conduct
Plaintiffs state that the Motion is brought pursuant,

in part, to “Mod[e]l Rules 3.3, 3.4, and 8.4 Misconduct of the
American Bar Association’s Mod[e]l Rules of Professional
Conduct.”

[Motion at 2 (emphasis omitted).]

Local Rule 83.3

states, “[e]very member of the bar of this court and any attorney
permitted to practice in this court pursuant to LR83.1(d) or (e)
shall be governed by and shall observe the standards of
professional and ethical conduct required of members of the
Hawaii State Bar.”

Thus, “[t]he Local Rules of the District of

Hawaii require attorneys practicing in the district to comply
with the Hawaii Rules of Professional Conduct.”

United States v.

Gaitan-Ayala, CR No. 07-00268-01 JMS, 2008 WL 1752678, at *3 (D.
Hawai`i Apr. 17, 2008) (citation omitted).
This district court has noted that “The Hawaii Rules of
Professional Conduct, along with the Rules of numerous other
states, are taken from the American Bar Association’s Model Rules
3

of Professional Conduct.”

Baham v. Ass’n of Apartment Owners of

Opua Hale Patio Homes, Civ. No. 13-00669 HG-BMK, 2014 WL 413495,
at *2 n.2 (D. Hawai`i Feb. 4, 2014).

The Court therefore

CONSTRUES Plaintiff’s Motion as seeking relief pursuant to the
Hawai`i Rules of Professional Conduct.
The Hawai`i Rules of Professional Conduct state, in
pertinent part:
Violation of a Rule should not itself give rise to
a cause of action against a lawyer nor should it
create any presumption in such a case that a legal
duty has been breached. In addition, violation of
a Rule does not necessarily warrant any other
nondisciplinary remedy, such as disqualification
of a lawyer in pending litigation. The Rules are
designed to provide guidance to lawyers and to
provide a structure for regulating conduct through
disciplinary agencies. They are not designed to
be a basis for civil liability. Furthermore, the
purpose of the Rules can be subverted when they
are invoked by opposing parties as procedural
weapons. The fact that a Rule is a just basis for
a lawyer’s self-assessment, or for sanctioning a
lawyer under the administration of a disciplinary
authority, does not imply that an antagonist in a
collateral proceeding or transaction has standing
to seek enforcement of the Rule. Nevertheless,
since the Rules do establish standards of conduct
by lawyers, a lawyer’s violation of a rule may be
evidence of breach of the applicable standard of
conduct.
Haw. R. Prof’l Conduct, Scope at ¶ 7.

Further, “[f]ailure to

comply with an obligation or prohibition imposed by a Rule is a
basis for invoking the disciplinary process.”

Id. at ¶ 6.

is clear from the plain language of the Hawai`i Rules of
Professional Conduct that they may not be enforced against an

4

It

opposing party via sanctions.

As such, insofar as Plaintiffs’

Motion seeks sanctions under the Hawai`i Rules of Professional
Conduct, the Motion is DENIED.
II.

Fed. R. Civ. P. 11
Plaintiff’s Fed. R. Civ. P. 11 claim primarily concerns

the deposition of non-party witness Elizabeth Gonzalez
(“Gonzalez”), Synder’s former social worker.
at ¶ 42.]

[Amended Complaint

Rule 11 states, in relevant part:
(b) Representations to the Court. By presenting
to the court a pleading, written motion, or other
paper – whether by signing, filing, submitting, or
later advocating it – an attorney or unrepresented
party certifies that to the best of the person’s
knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances:
(1) it is not being presented for any
improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the
cost of litigation;
(2) the claims, defenses, and other legal
contentions are warranted by existing law or
by a nonfrivolous argument for extending,
modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary
support or, if specifically so identified,
will likely have evidentiary support after a
reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are
warranted on the evidence or, if specifically
so identified, are reasonably based on belief
or a lack of information.
(c) Sanctions.
5

. . . .
(2) Motion for Sanctions. A motion for
sanctions must be made separately from any
other motion and must describe the specific
conduct that allegedly violates Rule 11(b).
The motion must be served under Rule 5, but
it must not be filed or be presented to the
court if the challenged paper, claim,
defense, contention, or denial is withdrawn
or appropriately corrected within 21 days
after service or within another time the
court sets. If warranted, the court may
award to the prevailing party the reasonable
expenses, including attorney’s fees, incurred
for the motion.
The Court commends Plaintiffs for following the proper procedure
in filing the Motion.

It is clear to the Court, however, that

Plaintiffs are not entitled to Rule 11 sanctions.
On August 24, 2015, Defendant filed:

(1) a Motion for

Summary Judgment Re: Plaintiff Deborah Lee Thorpe, Personal
Representative of the Estate of Blake Snyder, Deceased and
Deborah Lee Thorpe, Individually; and (2) a Motion for Summary
Judgment Re: Plaintiff Michael Thomas (collectively “Motions for
Summary Judgment”).

[Dkt. nos. 60, 62.2]

On October 8, 2015,

Plaintiffs filed a joint Fed. R. Civ. P. 56(d) motion and a
memorandum in opposition to the Motions for Summary Judgment
(“10/8/15 Submission”).

[Dkt. no. 72.]

Defendant filed a reply

in support of the Motions for Summary Judgment (“Summ. Judg.

2

In an entering order filed on January 21, 2016, the Court
reserved ruling on the Motions for Summary Judgment until
Plaintiffs’ appeal of the magistrate judge’s order regarding two
separate discovery-related motions is resolved. [Dkt. no. 98.]
6

Reply”) on October 26, 2015.

[Dkt. no. 76.]

Plaintiffs assert that, in the 10/8/15 Submission, they
“exercised great care in order to be factually accurate and
truthful in their representations to the Court that Defendant’s
counsel may have coached witness Elizabeth Gonzalez prior to and
on the Day of Her Deposition.”
original).]

[Mem. in Supp. at 2 (emphasis in

They argue that Defendant’s statement that

“Plaintiffs [sic] attempt to confuse and improperly influence the
Court to believe that Defendant’s counsel had improper
communications with an unrepresented person[,]” [Summ. Judg.
Reply at 10,] is a “very serious accusation of misconduct” and
that it is a “material misrepresentation” subject to sanctions
under Fed. R. Civ. P. 11(c)(2).

[Mem. in Supp. of Motion at 3.]

“‘Rule 11 is an extraordinary remedy, one to be
exercised with extreme caution.’”

Bald v. Wells Fargo Bank,

N.A., Civil No. 13-00135 SOM/KSC, 2013 WL 6487470, at *3 (D.
Hawai`i Dec. 10, 2013) (quoting Operating Engineers Pension Trust
v. A-C Co., 859 F.2d 1336, 1345 (9th Cir. 1988)).

Defendant’s

statement in its memorandum in opposition is not subject to Fed.
R. Civ. P. 11 sanctions because it is not baseless.

See Buster

v. Grelsen, 104 F.3d 1186, 1190 (9th Cir. 1997) (“‘Frivolous’
filings are those that are ‘both baseless and made without a
reasonable and competent inquiry.’” (quoting Townsend v. Holman
Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990) (en

7

banc))), abrogated on other grounds by Fossen v. Blue Cross &
Blue Shield of Mont., Inc., 860 F.3d 1102 (9th Cir. 2011).
Nothing prohibits an attorney from speaking with a
deponent who is not represented by counsel:
(a) In dealing on behalf of a client with a person
who is not represented by counsel, a lawyer shall
not state or imply that the lawyer is
disinterested. When the lawyer knows or
reasonably should know that the unrepresented
person misunderstands the lawyer’s role in the
matter, the lawyer shall make reasonable efforts
to correct the misunderstanding.
(b) The Lawyer shall not give legal advice to an
unrepresented person, other than the advice to
secure counsel, if the lawyer knows or reasonably
should know that the interests of such a person
are or have a reasonable possibility of being in
conflict with the interest of the lawyer’s client.
Haw. R. Prof’l Conduct, Rule 4.3 (dealing with unrepresented
persons).

Defendant states that its actions were consistent with

Rule 4.3 of the Hawai`i Rules of Professional Conduct, as “two
attorneys from Defendant’s counsel’s law firm, Gregory K.
Markham, Esq. and Mari L. Tsukayama, Esq., spoke to Ms. Gonzalez
prior to her deposition and informed her that this law firm
represents Defendant and was, therefore, not disinterested, and
no legal advice was given to Ms. Gonzalez.”
Motion at 8.]

[Mem. in Opp. to

Therefore, Plaintiffs’ argument that “[a]ny

answers that Ms. Gonzalez gave to Mr. Markham’s questions during
Mr. Markham’s furtive telephone conversation(s) with Ms. Gonzalez
were not given under oath, and that Plaintiffs were wrongfully

8

denied their right to cross examine Ms. Gonzalez[,]” [Mem. in
Supp. of Motion at 6,] is incorrect as a matter of law.
Defendant’s statement was “warranted by existing law,”
see Fed. R. Civ. P. 11(b)(2), and Plaintiff’s Motion, insofar as
it seeks sanctions under Rule 11, is DENIED.
III. Fed. R. Civ. P. 30
Finally, Plaintiffs seek sanctions against Defendant
pursuant to Fed. R. Civ. P. 30, which provides, in pertinent
part, “[t]he court may impose an appropriate sanction – including
the reasonable expenses and attorney’s fees incurred by any party
– on a person who impedes, delays, or frustrates the fair
examination of the deponent.”

Fed. R. Civ. P. 30(d)(2).

Plaintiffs seek Fed. R. Civ. P. 30 sanctions based on
their belief that Defendant coached Gonzalez, which they argue
amounts to an “[e]ffort[] to obstruct the disclosure of relevant
information.”

[Mem. in Supp. of Motion at 11.]

Specifically,

Plaintiffs assert that Defendant “coached” Gonzalez during her
deposition, and cite the repeated use of the term “fast-paced” as
well as what they believe is a change in her testimony regarding
the availability of a bed at Hina Mauka.

[Id. at 6-10.]

Under Rule 30(d)(2), the moving party’s
burden is twofold. First, the movant must
identify language or behavior that impeded,
delayed, or frustrated the fair examination of the
deponent. See FED. R. CIV. P. 30(d)(2). When
making this inquiry, the court will look to:
(1) the specific language used (e.g., use of
offensive words or inappropriate tones); the
9

conduct of the parties (e.g., excessive objections
or speaking objections); and (3) the length of the
deposition. Second, the movant must identify “an
appropriate sanction.” Id. The Ninth Circuit
provides District Courts with wide discretion to
fashion “an appropriate sanction.” Yeti by Molly,
Ltd. v. Deckers, 259 F.3d 1101, 1106 (9th Cir.
2001); Von Brimer v. Whirlpool Corp., 536 F.2d
838, 844 (9th Cir. 1976). The Court will not
engage in an open-end inquiry regarding what an
appropriate sanction is without input from
counsel.
Dunn v. Wal-Mart Stores, Inc., No. 2:12-cv-01660-GMN-VCF, 2013 WL
5940099, at *5 (D. Nev. Nov. 1, 2013).

The evidence that

Plaintiffs provide does not show that Mr. Markham “coached”
Gonzalez.

Repeated use of the term “fast-paced” by multiple

parties is not irregular in this context – the parties were
describing a treatment program for which prospective patients
must be screened to determine whether or not a placement is
appropriate.

Further, while Plaintiffs assert that Gonzalez

changed her testimony about the availability of a bed at Hina
Mauka, the record shows otherwise.

At her deposition, Thorpe

asked Gonzalez if she recalled saying “a bed has opened for him
and they’re going to contact me for intake for Blake[,]” to which
Gonzalez replied “[y]es, correct, I did.”

[Mem. in Supp. of

Motion, Decl. of Michael Thomas, Exh. A (excerpts of 9/15/15
Depo. of Elizabeth Gonzalez) (“Gonzalez Depo.”) at 3.]

Later in

the deposition, Thorpe asked:
Q. Right. So when you submitted the paperwork to
Hina Mauka, and they contacted you to say a bed
had opened up for Blake and you contacted me, that
10

was definitely an open opportunity because of
Blake – a bed was offered for Blake?
Mr. Markham: Well, objection, misstates
testimony, it’s argumentative, misstates evidence.
Ms. Thorpe:

No, Elizabeth actually –

Mr. Markham:

Argumentative.

Ms. Thorpe: – stated that she contacted me early
in her testimony here, and that Hina Mauka – Hina
Mauka had contacted her to say there was a bed
open for Blake.
Mr. Markham:

I never heard the word –

Ms. Thorpe:

And they were going to –

Mr. Markham:

– bed open for Blake –

Ms. Thorpe:

I kind –

Mr. Markham:

– ever in her testimony.

Ms. Thorpe: I kind of said that three times.
we go back and find all of those?
The Witness [Gonzalez]:

Can

There’s a bed open is –

By Ms. Thorpe:
Q.

Sorry.

A.

– what they said.

Q.

There’s a bed open.

A.

Right.

Q.

And they’re going to contact you for
Blake.

A.

Yes.

Q.

Right.

A.

Not a bed open for Blake.
11

Like, there’s

a bed open.
[Gonzalez Depo. at 4-5.]

While Plaintiffs allege that

“Ms. Gonzalez qualified her answer to exclude ‘for him’ following
a colloquy during which Mr. Markham interrupts Plaintiff Thorpe
in order to deny Ms. Gonzalez’s own earlier testimony, and
thereby Mr. Markham prompts Ms. Gonzalez to change her
testimony[,]” [Mem. in Supp. of Motion at 9 (emphasis in
original),] Gonzalez never stated “for him.”

Further, it is

clear from the record that Mr. Markham’s interruption was to
state an objection, not to “prompt” Gonzalez.3

Plaintiffs’

Motion, insofar as it seeks sanctions under Fed. R. Civ. P. 30 is
therefore DENIED.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for
Sanction Under Rule 11(c)(2) and Rule 30 and Under Modal Rules
3.3, 3.4, and 8.4 Misconduct, filed on December 15, 2015, is
HEREBY DENIED.
IT IS SO ORDERED.
3

While it does not find counsel’s conduct to rise to the
level of misconduct asserted by Plaintiff, the Court is troubled
by Mr. Markham’s interruptions during this particular portion of
the deposition. He should be mindful that only legal objections
can be made. Therefore a statement such as “I never heard the
word bed open for Blake ever in her testimony” is not appropriate
and obstructs the questioner. See Gonzalez Depo. at 5. Any
similar conduct in the future may likely be sanctioned. The
Court reminds both parties that, should a discovery issue arise
in the future, they may seek expedited discovery assistance with
the magistrate judge pursuant to Local Rule 37.1(c).
12

DATED AT HONOLULU, HAWAII, January 28, 2016.

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

MICHAEL THOMAS, ET AL. VS. ALCOHOLIC REHABILITATION SERVICES OF
HAWAII, INC.; CIVIL 14-00176 LEK-BMK; ORDER DENYING PLAINTIFFS’
MOTION FOR SANCTION UNDER RULE 11(C)(2) AND RULE 30 AND UNDER
MODAL RULES 3.3., 3.4, AND 8.4 MISCONDUCT

13