Young v. Kraus et al
ORDER DENYING PLAINTIFF'S APPEAL OF THE MAGISTRATE JUDGES ORDER GRANTING DEFENDANTS' MOTION FOR SANCTIONS AGAINST PLAINTIFF AND THE MAGISTRATE JUDGE'S ENTERING ORDER DETERMINING THE AMOUNT OF THE SANCTION re 130 Objection, filed by Christopher Young, 129 , 125 Order. Signed by JUDGE LESLIE E. KOBAYASHI on 10/12/2017. This Court DENIES Plaintiff's July 10, 2017 appeal of the magistrate judge's: Order Granting Defendants' Motion for Sanctions Against Plaintiff, filed June 23, 2017; and, entering order determining the amount of the sanction award, filed June 29, 2017. The 6/23/17 Order and the 6/29/2017 EO are AFFIRMED. This Court ORDERS Plaintiff provide complete and detailed responses to the Tree Works Defendants' request for answers to interrogatories by November 9, 2017. Further, this Court orders Plaintiff to pay the $739.50 sanction to the Tree Works Defendants, thro ugh their counsel, by November 16, 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). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL M. KRAUS, Owner of
Tree Works Inc., COUNTY OF
HAWAII, POLICE DEPARTMENT,
PATRICK T. KIHARA as a Police )
Officer in the County of
Hawaii, State of Hawaii, JOHN )
DOES 1-10, JANE DOES 1-10,
DOE CORPORATIONS 1-10, DOE
PARTNERSHIPS 1-10, AND DOE
GOVERNMENT ENTITIES 1-10,
CIVIL 15-00383 LEK-KSC
ORDER DENYING PLAINTIFF’S APPEAL OF
THE MAGISTRATE JUDGE’S ORDER GRANTING DEFENDANTS’
MOTION FOR SANCTIONS AGAINST PLAINTIFF AND THE MAGISTRATE
JUDGE’S ENTERING ORDER DETERMINING THE AMOUNT OF THE SANCTION
On June 23, 2017, the magistrate judge issued the Order
Granting Defendants’ Motion for Sanctions Against Plaintiff
(“6/23/17 Order”), and, on June 29, 2017, he issued an entering
order determining the amount of the sanction award (“6/29/17
[Dkt. nos. 125, 129.]
On July 10, 2017, pro se Plaintiff
Christopher Young (“Plaintiff”) filed a document titled
“Verification of Plaintiff’s Objection to the 6/23/2017 Order
Granting Defendants’ Motion for Sanctions Against Plaintiff.”
[Dkt. no. 130.]
This Court has construed Plaintiff’s filing as
an appeal of the 6/23/17 Order and the 6/29/17 EO (“Appeal”).
[EO, filed 7/11/17 (dkt. no. 131) (construing filing).]
Defendants Michael M. Kraus (“Kraus”) and Tree Works, Inc.
(collectively “Defendants” or “the Tree Works Defendants”) filed
a “Memorandum in Support of Sanctions Imposed upon Plaintiff”
(“Response”) on July 25, 2017, and Plaintiff filed a document
objecting to the Response on August 11, 2017.
[Dkt. nos. 132,
The Court has considered the Appeal as a non-hearing
matter pursuant to Rule LR7.2(e) of the Local Rules of Practice
of the United States District Court for the District of Hawai`i
Plaintiff’s Appeal is hereby denied, and the
6/23/17 Order and the 6/29/17 EO are hereby affirmed, for the
reasons set forth below.
The relevant factual and procedural background of this
case is set forth in the 6/23/17 Order.
magistrate judge: declined to recommend the dismissal of
Plaintiff’s case; “order[ed] Plaintiff to provide complete and
detailed responses to Defendants’ interrogatories . . . by
July 7, 2017”; and ordered Plaintiff to reimburse Defendants’
attorney’s fees and costs incurred in connection with the
[6/23/17 Order at 5.]
In the 6/29/17 EO,
The 6/23/17 Order addressed the Tree Works Defendants’
Motion for Sanctions Against Plaintiff, filed on May 1, 2017
(“Motion for Sanctions”). [Dkt. no. 119.] Plaintiff did not
respond to the Motion for Sanctions, and the magistrate judge
the magistrate judge found that the Tree Works Defendants’
counsel “reasonably and necessarily incurred $739.50 bringing the
Motion for Sanctions” and ordered Plaintiff to pay that amount to
them, through their counsel, by July 12, 2017.
In the Appeal, Plaintiff appears to argue that: the
Tree Works Defendants’ counsel failed to disclose the fact that
Kraus “is an outlaw, fugitive from justice in the State Court
jurisdiction”; [Appeal at 1;] the magistrate judge did not have
jurisdiction to issue the 6/23/17 Order and the 6/29/17 EO
because the Tree Works Defendants’ counsel has attempted to
conceal the fact that Defendant Patrick T. Kihara (“Kihara”)
violated his duties by failing to issue a citation to Kraus after
the accident in question; the magistrate judge failed to consider
the violations of public policy related to the fact that Kraus is
a fugitive and Kihara failed to issue a citation to him; the
magistrate judge failed to consider the objections and request
for sanctions against the defendants’ attorneys that Plaintiff
filed on December 2, 2016; the magistrate judge failed to
consider Plaintiff’s position that the case must be remanded to
state court; defense counsel, the magistrate judge, and this
Court have discriminated against him in this case because he is
black; the magistrate judge failed to impartially consider all of
held a hearing on the motion on June 23, 2017, with Plaintiff
appearing by telephone. [Minutes, filed 6/23/17 (dkt. no. 124).]
the submissions in support of Plaintiff’s arguments at the
hearing on the Motion for Sanctions; Plaintiff did not receive
the 6/23/17 Order until July 1, 2017, leaving him insufficient
time to respond to the interrogatories; he should not be forced
to answer the interrogatories because the case is on appeal to
the United States Supreme Court; and paying the sanction against
him would be a financial hardship.
This district court has stated:
Pursuant to 28 U.S.C. § 636(b)(1)(A), Federal
Rule of Civil Procedure 72(a), and LR 74.1, any
party may appeal to the district court any
pretrial nondispositive matter determined by a
magistrate judge. Such an order may be reversed
by the district court judge only when it is
“clearly erroneous or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A); LR 74.1. An order is “contrary to
law” when it “fails to apply or misapplies
relevant statutes, case law, or rules of
procedure.” Akey v. Placer Cty., 2017 WL 1831944,
at *10 (E.D. Cal. May 8, 2017) (citation and
quotation marks omitted). And an order is
“clearly erroneous” if, after review, the court
has a “definite and firm conviction that a mistake
has been committed.” Easley v. Cromartie, 532
U.S. 234, 242 (2001); Fisher v. Tucson Unified
Sch. Dist., 652 F.3d 1131, 1136 (9th Cir. 2011);
Cochran v. Aguirre, 2017 WL 2505230, at *1 (E.D.
Cal. June 9, 2017) (citing cases). “[R]eview
under the ‘clearly erroneous’ standard is
significantly deferential.” Concrete Pipe &
Prods. v. Constr. Laborers Pension Tr., 508 U.S.
602, 623 (1993). Thus, the district court “may
not simply substitute its judgment for that of the
deciding court.” Grimes v. City & Cty. of S.F.,
951 F.2d 236, 241 (9th Cir. 1991); Cochran, 2017
WL 2505230, at *1.
“‘Pretrial orders of a magistrate’ judge
‘under § 636(b)(1)(A) . . . are not subject to a
de novo determination.’” Hypolite v. Zamora, 2017
WL 68113, at *1 (E.D. Cal. Jan. 6, 2017) (quoting
Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d
1013, 1017 (5th Cir. 1981)). Consideration by the
reviewing court of new evidence, therefore, is not
permitted. United States ex rel. Liotine v. CDW
Gov’t, Inc., 2013 WL 1611427, at *1 (S.D. Ill.
Apr. 15, 2013) (“If the district court allowed new
evidence [on review of a magistrate judge’s
non-dispositive order], it would essentially be
conducting an impermissible de novo review of the
order.”); cf. United States v. Howell, 231 F.3d
615, 621 (9th Cir. 2000) (determining that “a
district court has discretion, but is not
required, to consider evidence presented for the
first time” in a de novo review of a magistrate
judge’s dispositive recommendation).
McAllister v. Adecco USA Inc., Civ. No. 16-00447 JMS-KJM, 2017 WL
2818198, at *2 (D. Hawai`i June 29, 2017) (alterations in
First, many of Plaintiff’s arguments improperly ask to
revisit prior rulings in this case.
This Court has already
considered and rejected Plaintiff’s arguments that this case was
improperly removed and should be remanded to the state court.
[Order Denying “Verification of Plaintiff’s Objection to Judges
Failiar to Address the Rule 4 Violations of the Defendants
County’s Counsel in the Removal on 9/28/2015,” filed 4/19/16
(dkt. no. 46), at 7-9.]
Likewise, Plaintiff’s claims against
Defendants the County of Hawai`i and the County of Hawai`i Police
Department (collectively, “the County”) and Kihara (all
collectively, “the County Defendants”) have previously been found
to fail to state plausible claims for relief.
been dismissed with prejudice.
Those claims have
[Order Granting in Part and
Denying in Part the County Defendants’ Motion to Dismiss
Christopher Young Amendment (Sic) of Complaint Filed March 4,
2016 [Document 35], filed 1/27/17 (dkt. no. 106) (“1/27/17
The Appeal is therefore denied to the extent it is
based upon Plaintiff’s arguments that the case should be remanded
to state court and that the claims against the County Defendants
should not have been dismissed.
Similarly, Plaintiff’s argument that Kraus is “an
outlaw” and a “fugitive from justice” appear to relate to his
allegations that: Kihara had a duty to arrest or issue a criminal
citation to Kraus because Kraus’s negligence and violation of
Hawai`i statutes caused an accident that resulted in injuries or
damages to Plaintiff; and Kihara breached that duty by failing to
[Amendment of Complaint (“Amended Complaint”), filed
3/4/16 (dkt. no. 35), at ¶¶ 12-14.]
It is clear that Plaintiff
still believes Kihara should have arrested or cited Kraus and
disagrees with the dismissal of his claims against Kihara
challenging Kihara’s failure to do so.
disagreement with the dismissal of his claims against Kihara does
not justify his failure to respond to the Tree Works Defendants’
To the extent the Appeal is based on
Plaintiff’s allegations that Kraus is an outlaw or a fugitive,
the Appeal is denied.
Plaintiff also argues that the 6/23/17 Order and the
6/29/17 EO should be reversed because the magistrate judge failed
to consider Plaintiff’s previous objections and request for
On December 2, 2016, Plaintiff filed a document
titled “Verification of Plaintiff’s Objection to the Violation of
the Rule 16 Process and Plaintiff’s Due Process and Equal
Protection and this Judge’s Failure to Address Plaintiff’s
Objections to the Violations and Requests for Sanctions for Said
Violations” (“12/2/16 Filing”).
[Dkt. no. 101.]
correct that there was no order issued addressing the 12/2/16
However, the 12/2/16 Filing merely restates objections
and requests that Plaintiff made during a November 21, 2016
status conference regarding the trial date.
11/21/16 (dkt. no. 97).
See Minutes, filed
Thus, an order addressing the 12/2/16
Filing was not necessary.
Moreover, the 12/2/16 Filing is not
relevant to the discovery issues the magistrate judge addressed
in the 6/23/17 Order and the 6/29/17 EO.
The Appeal is therefore
denied to the extent it is based upon the failure to address
Plaintiff’s 12/2/16 Filing.
Plaintiff also argues that he should not be required to
respond to the Tree Works Defendants’ interrogatories because the
case is on appeal to the Supreme Court.
Plaintiff filed three
appeals from orders issued in this case: an appeal from an order
filed on April 19, 2016 that the Ninth Circuit dismissed for lack
of jurisdiction; [Notice of Appeal, filed 5/17/16 (dkt. no. 52);
Order, filed 6/10/16 (dkt. no. 62);] an appeal from an entering
order filed on July 6, 2016 that the Ninth Circuit dismissed for
lack of jurisdiction; [Notice of Appeal, filed 7/15/16 (dkt. no.
67); Order, filed 8/29/16 (dkt. no. 74);] and an appeal from an
order filed on February 17, 2017 that the Ninth Circuit dismissed
for lack of jurisdiction; [Notice of Appeal, filed 3/13/17 (dkt.
no. 114); Order, filed 4/21/17 (dkt. no. 118)].
On May 18, 2017
in this district court, Plaintiff filed a courtesy copy of his
“Notice of Appeal to the United States Supreme Court from a
Judgment or Order in the Ninth Circuit Court of Appeals” from the
Ninth Circuit’s April 21, 2017 Order.
[Dkt. no. 122.]
there is no case in the Supreme Court’s docketing system
His “Notice of Appeal” was apparently
rejected, and no case was ever opened.
Plaintiff’s argument that
the magistrate judge erred in requiring him to respond to the
Tree Works Defendants’ interrogatories while he had a pending
appeal is therefore rejected.
Plaintiff argues that defense counsel, the magistrate
judge, and this Court have discriminated against him because he
This is a serious allegation for which Plaintiff
points to no supporting evidence.
Because Plaintiff does not
identify how any prejudice against him contributed to the 6/23/17
Order or the 6/29/17 EO, his argument is rejected for purposes of
If Plaintiff believes that the magistrate judge or
this Court has a general personal prejudice against him, his
remedy is to file a motion to recuse pursuant to 28 U.S.C. § 144
and/or § 455.2
This district court has stated:
Under § 144, a judge must recuse himself when
a party to a district court proceeding “files a
timely and sufficient affidavit that the judge
before whom the matter is pending has a personal
bias or prejudice either against him or in favor
of any adverse party.” 28 U.S.C. § 144.
Under § 455(a), “[a]ny justice, judge, or
magistrate judge of the United States shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28
U.S.C. § 455(a). Section 455 requires recusal
a judge’s impartiality might reasonably be
questioned or where he has personal bias or
prejudice concerning a party, or personal
knowledge of disputed evidentiary facts
concerning the proceeding. Recusal is also
required where the judge knows he has a
fiduciary interest in the subject matter in
controversy or in a party to the proceedings,
or any other interest that could
substantially affect the outcome of the
proceedings. 28 U.S.C. § 455(b)(4).
Hanson v. Palehua Cmty. Ass’n, 2013 WL 1187948 (D.
Haw. Mar. 20, 2013).
A motion brought under § 144 must be
supported by a party’s affidavit identifying the
basis for the party’s belief that a judge is
Plaintiff also argues that the magistrate judge failed
to impartially consider all of the submissions in support of his
arguments at the hearing.
Because Plaintiff did not file a
memorandum in opposition to the Tree Works Defendants’ Motion for
Sanctions, there were no submissions from Plaintiff for the
magistrate judge to consider.
Although it was within the
magistrate judge’s discretion not to consider Plaintiff’s
arguments at the hearing because of his failure to file a
memorandum in opposition, the 6/23/17 Order reflects that the
magistrate judge did consider Plaintiff’s arguments.
magistrate judge ruled against Plaintiff does not mean that the
magistrate judge failed to consider evidence or arguments in
support of Plaintiff’s position.
This Court rejects the Appeal’s
argument that the magistrate judge failed to consider submissions
in support of Plaintiff’s position.
Having rejected all of
Plaintiff’s arguments challenging the requirement that he to
respond to the Tree Works Defendants’ request for answers to
interrogatories, this Court denies the Appeal and the affirms the
biased or prejudiced. A judge other than the
judge who is the subject of a motion brought under
§ 144 must decide the motion. Section 455 does
not include language requiring an affidavit or
requiring assignment to a different judge.
Pitts v. Espinda, CIVIL NO. 15-00483 JMS/KJM, 2016 WL 3566191, at
*2-3 (D. Hawai`i June 24, 2016) (alteration in Pitts).
Plaintiff’s asserts that he did not have sufficient
time to comply with the 6/23/17 Order because he did not receive
it until July 1, 2017 and because he is pro se.
The record does
not contain any indication why it took so long for Plaintiff to
receive the order.
In light of Plaintiff’s pro se status and the
fact that he lives on the Island of Hawai`i, this Court will
provide Plaintiff additional time from the filing of this Order
to respond to the interrogatories.
However, Plaintiff’s position
that he did not have sufficient time to respond to the
interrogatories is not a ground to reverse the 6/23/17 Order.
Finally, Plaintiff argues that paying the sanction
against him would be a financial hardship.
Pursuant to Fed. R.
Civ. P. 37(b)(2)(C), the magistrate judge was required to order
Plaintiff to pay the Tree Works Defendants’ reasonable expenses
incurred because of Plaintiff’s failure to respond to the
interrogatories “unless the failure was substantially justified
or other circumstances make an award of expenses unjust.”
the reasons stated in the 6/23/17 Order and the instant Order,
Plaintiff’s failure to respond was not substantially justified.
Plaintiff contends that the financial hardship renders the award
While there are circumstances where an award of
attorney’s fees and costs against a pro se party is unjust, the
award in this case does not rise to that level.
Williamson v. Hawai`i, Civil No. 14–00001 HG–RLP, 2014 WL
7642094, at *3 (D. Hawai`i Dec. 30, 2014) (finding that “awarding
$11,422.03 in expenses against a pro se Plaintiff proceeding in
forma pauperis would be unjust,” particularly where the
magistrate judge recommended dismissal of the action as a
sanction), report and recommendation adopted, 2015 WL 224714
(Jan. 15, 2015).
This Court therefore rejects Plaintiff’s
argument that the award of $739.50 in the 6/29/17 EO is unjust.
The Appeal is denied as to the attorney’s fee issue, and the
6/29/17 EO is affirmed.
On the basis of the foregoing, this Court DENIES
Plaintiff’s July 10, 2017 appeal of the magistrate judge’s: Order
Granting Defendants’ Motion for Sanctions Against Plaintiff,
filed June 23, 2017; and, entering order determining the amount
of the sanction award, filed June 29, 2017.
and the 6/29/2017 EO are AFFIRMED.
The 6/23/17 Order
This Court ORDERS Plaintiff
provide complete and detailed responses to the Tree Works
Defendants’ request for answers to interrogatories by November 9,
Further, this Court orders Plaintiff to pay the $739.50
sanction to the Tree Works Defendants, through their counsel, by
November 16, 2017.
This Court CAUTIONS Plaintiff that his failure to
provide complete and detailed responses to the interrogatories by
November 9, 2017 will result in additional sanctions, which may
include the dismissal of his claims.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 12, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
CHRISTOPHER YOUNG V. MICHAEL M. KRAUS, ET AL., CIVIL 15-00383
LEK-KSC; ORDER DENYING PLAINTIFF’S APPEAL OF THE MAGISTRATE
JUDGE’S ORDER GRANTING DEFENDANTS’ MOTION FOR SANCTIONS AGAINST
PLAINTIFF AND THE MAGISTRATE JUDGE’S ENTERING ORDER DETERMINING
THE AMOUNT OF THE SANCTION
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