Salem v. Arakawa

Filing 201

ORDER DISMISSING CASE WITH PREJUDICE. Signed by JUDGE LESLIE E. KOBAYASHI on 05/03/2017. - - Court DIRECTS the Clerk's Office to enter final judgment and close the case on May 24, 2017, unless Plaintiff files a motion for r econsideration of this Order by May 22, 2017. The final judgment shall be in favor of Defendants pursuant to the 3/15/16 Order and the instant Order. (eps, )CERTIFICATE OF SERVICEParticipants registered t o 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 May 4, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
ALAN ARAKAWA, individually
and in his official capacity )
as MAYOR OF THE COUNTY OF
)
MAUI; et al.,
)
)
Defendants.
)
_____________________________ )
CHRISTOPHER SALEM,

CIVIL 15-00384 LEK-KSC

ORDER DISMISSING CASE WITH PREJUDICE
The instant case was removed to this district court on
September 28, 2015, after originally being filed in the Circuit
Court of the Second Circuit, State of Hawai`i.

See Notice of

Removal, filed 9/28/15 (dkt. no. 1), Exh. A, Parts 1-3
(“Complaint”).

Plaintiff Christopher Salem (“Plaintiff”) filed

his Complaint against Defendants:1
- County of Maui; Alan Arakawa (“A. Arakawa”), in his official
capacity as Mayor of the County of Maui; Patrick Wong (“Wong”),
in his official capacity as Corporation Counsel for the County of
Maui; Keith Regan (“Regan”), in his official capacity as former
Director of the Department of Finance, County of Maui;
David Goode (“Goode”), in his official capacity as Director of
Public Works, County of Maui; Milton Arakawa (“M. Arakawa”), in
his official capacity as former Director of Public Works, County
of Maui; William Spence (“Spence”), in his official capacity as
Director of Planning, County of Maui; John Minn (“Minn”), in his
1

On March 16, 2017, Plaintiff notified the Court that his
attorney, Burton D. Gould, Esq., had passed away and that he
would be pursuing the remainder of this case pro se. [Dkt. no.
191.] However, Plaintiff was represented by counsel during the
periods at issue in the instant Order.

official capacity as former director of the Department of
Planning, County of Maui; and Jeffrey Hunt (“Hunt”), in his
official capacity as former Director of the Department of
Planning, County of Maui (collectively “County Defendants”);
- A. Arakawa, Wong, Regan, Goode, M. Arakawa, Spence, Minn, and
Hunt, in their individual capacities (collectively “Individual
Defendants”);2 and
- Department of the Corporation Counsel, Department of Public
Works, Department of Planning, and Department of Finance
(collectively “County Departments”).
In an order filed on December 30, 2015 (“12/30/15 Order”), [dkt.
no. 47,] the Court dismissed the claims against the County
Departments with prejudice.

[12/30/15 Order at 9.3]

On March 15, 2016, this Court filed its Order:
(1) Granting in Part and Denying in Part Individual Defendants’
Motion for Partial Dismissal of Claims in Plaintiff’s Complaint,
Filed on September 18, 2015, and for a More Definite Statement as
to Certain Claims; and (2) Denying as Moot Plaintiff’s Motion to
Dismiss Defendants’ Amended Counterclaim Filed November 12, 2015
Pursuant to FRCP Rule 12(b)(1), (3), (6) (“3/15/16 Order”).
[Dkt. no. 82.4]

The 3/15/16 Order dismissed the Complaint for

failing to comply with Fed. R. Civ. P. 8.
*4.

2016 WL 1043050, at

Specifically, this Court concluded that:

2

The instant Order will refer to the County Defendants and
Individual Defendants collectively as “Defendants.”
3

The 12/30/15 Order is also available at 2015 WL 9592492.

4

The 3/15/16 Order is also available at 2016 WL 1043050.
2

[T]he 133-page Complaint, with its 604 numbered
paragraphs and 131 pages of declarations and
exhibits, is meandering, repetitive, confusing,
and, at times, incomprehensible. It consists of a
seemingly endless series of statements that
Plaintiff insists trace the relevant history of
the instant suit. After reading the Complaint
multiple times, however, the Court is still unsure
of: (1) what many of the claim are; and (2) the
grounds upon which many of the claims are based.
Id.

In addition, the 3/15/16 Order dismissed Counts VII, IX, and

XI with prejudice because they sought to enforce Hawai`i criminal
law.

Id. at *6-7.
On April 25, 2016, Plaintiff filed a Motion for Leave

to File a First Amended Complaint and, on April 26, 2016, he
filed an errata to the motion (collectively “First Motion for
Leave”).

[Dkt. nos. 88, 90.]

The magistrate judge held a

hearing on the First Motion for Leave on May 31, 2016 (“5/31/16
Hearing”), and he denied the motion on July 22, 2016 (“7/22/16
Order”).

[Dkt. nos. 103 (5/31/16 Hearing minutes), 112 (7/22/16

Order).]

The magistrate judge explained that Plaintiff’s

“proposed [First Amended Complaint] consists of 132 pages, 577
paragraphs, and 23 requests for relief.

This purportedly amended

complaint consists of neither ‘short’ nor ‘plain’ statements of
his claims.”

[7/22/16 Order at 12.]

Thus, the magistrate judge

denied the First Motion for Leave “based on the Court’s
consideration of judicial economy, the Court’s ability to manage
the case, and prejudice to Defendants.”

3

[Id. at 13.]

Plaintiff filed his Second Motion for Leave to File a
First Amended Complaint on August 22, 2016, and he filed an
errata to the motion on August 23, 2016 (collectively “Second
Motion for Leave”).

[Dkt. nos. 122, 124.]

The magistrate judge

held a hearing on the Second Motion for Leave on September 29,
2016.

[Dkt. no. 134.]

On October 13, 2016, Plaintiff filed a

Motion for Leave to File a Supplemental Addendum to Proposed
First Amended Complaint Exhibit “A” in Plaintiff Salem’s Second
Motion for Leave Et Al. (“Motion to Supplement”).
140.]

[Dkt. no.

In an Entering Order filed on October 26, 2016, the

magistrate judge found that the Second Motion for Leave and the
Motion to Supplement should be decided together, and that the
Motion to Supplement would be decided without a hearing.
no. 143.]

[Dkt.

On December 20, 2016, the magistrate judge filed his

(1) Order Granting Plaintiff Christopher Salem’s Motion for Leave
to File a Supplemental Addendum to Proposed First Amended
Complaint Exhibit “A” in Plaintiff Salem’s Second Motion for
Leave Et Al.; and (2) Findings and Recommendation to Deny
Plaintiff Christopher Salem’s Motion for Leave to File a First
Amended Complaint (“12/20/16 Order”).

[Dkt. no. 163.]

The

12/20/16 Order granted the Motion to Supplement, but recommended
that this Court deny the Second Motion for Leave on futility
grounds.

[12/20/16 Order at 3.]

On December 30, 2106, Plaintiff

filed a motion for an extension of time to file a motion for

4

reconsideration of the 12/20/16 Order (“Motion for Extension”),
and, in an Entering Order filed on January 4, 2017 (“1/4/17 EO”),
the magistrate judge granted the Motion for Extension.
nos. 164 (Motion for Extension), 167 (1/4/17 EO).]

[Dkt.

The 1/4/17 EO

gave Plaintiff until January 14, 2017 to file a motion for
reconsideration, but Plaintiff failed to meet this deadline.
On January 20, 2017, this Court filed its Order
Adopting Magistrate Judge’s Findings and Recommendations
(“1/20/17 Order”).

[Dkt. no. 169.]

The same day, Plaintiff

filed his motion for reconsideration of the 12/20/16 Order, which
the magistrate judge denied as untimely on January 24, 2017.
[Dkt. nos. 171, 172.]

On February 17, 2017, Plaintiff filed a

motion for reconsideration of the 1/20/17 Order, pursuant to Fed.
R. Civ. P. 59(e), and on February 21, 2017, he filed an errata to
the motion for reconsideration (collectively “2/17/17 Motion for
Reconsideration”).

[Dkt. nos. 181, 183.]

In an Entering Order

filed on February 24, 2017, this Court denied the 2/17/17 Motion
for Reconsideration because it was premature.

[Dkt. no. 187.]

Plaintiff has been denied leave to file an amended
complaint twice, and there is no complaint pending in this case.
Moreover, Plaintiff has not cured the defects identified in the
3/15/16 Order.

This Court therefore has the discretion to

dismiss the claims in Plaintiff’s Complaint with prejudice.
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)

5

See

(“Pursuant to Federal Rule of Civil Procedure 41(b), the district
court may dismiss an action for failure to comply with any order
of the court.”).5

After weighing the five dismissal factors set

forth in Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir.
2011),6 this Court finds that the public interest in the
expeditious resolution of this litigation and this Court’s
interest in managing the docket strongly outweigh the policy
favoring disposition of cases on the merits.

Moreover, this

Court finds that Defendants will not be prejudiced by dismissal
and there are no less drastic alternatives available at this
time.
The claims in Plaintiff’s Complaint that this Court
previously dismissed without prejudice, are HEREBY DISMISSED WITH
PREJUDICE.

There being no claims remaining in this case, this

5

Rule 41(b) states, in pertinent part, that, “[i]f the
plaintiff fails to prosecute or to comply with these rules or a
court order, a defendant may move to dismiss the action or any
claim against it.”
6

The Ninth Circuit has
identified five factors that a district court must
consider before dismissing a case . . . : (1) the
public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its
docket; (3) the risk of prejudice to the other
party; (4) the public policy favoring the
disposition of cases on their merits; and (5) the
availability of less drastic sanctions.

Dreith, 648 F.3d at 788 (citations and internal quotation marks
omitted).
6

Court DIRECTS the Clerk’s Office to enter final judgment and
close the case on May 24, 2017, unless Plaintiff files a motion
for reconsideration of this Order by May 22, 2017.7

The final

judgment shall be in favor of Defendants pursuant to the 3/15/16
Order and the instant Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 3, 2017.

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

CHRISTOPHER SALEM VS. ALAN ARAKAWA, ETC., ET AL; CIVIL 15-00384
LEK-KSC; ORDER DISMISSING CASE WITH PREJUDICE

7

The Court notes that, on February 1, 2017, the Individual
Defendants filed a Motion for an Award of Attorneys’ Fees
Incurred in Defending Against Plaintiff’s Lawsuit (“Motion for
Attorneys’ Fees”) that is still pending before the magistrate
judge. [Dkt. no. 173.] The County of Maui filed a substantive
joinder to the Motion for Attorneys’ Fees on February 8, 2017.
[Dkt. no. 175.] In addition, Plaintiff filed a motion related to
obtaining access to this district court’s electronic case filing
system, [filed 4/18/17 (dkt. no. 196),] as well as a separate
motion seeking leave from the Court to supplement the memorandum
in opposition to the Motion for Attorneys’ Fees filed by his late
counsel [filed 4/28/17 (dkt. no. 199)]. “It is well established
that a federal court may consider collateral issues after an
action is no longer pending.” Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 395 (1990); see also Fed. R. Civ. P. 54(d)(2)
(requiring motions for attorneys’ fees to be filed within
fourteen days of entry of judgment). Accordingly, the closure of
this case does not affect this district court’s ability to rule
on these pending motions.
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