Begley v. County of Kauai, Kauai Police Department

Filing 434

ORDER: DENYING DEFENDANT MICHAEL CONTRADES'S MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT FILED HEREIN ON AUGUST 31, 2018; DENYING THE COUNTY DEFENDANTS' JOINDER OF SIMPLE AGREEMENT; AND GRANTING DEFENDANT ROY ASHER'S S UBSTANTIVE JOINDER re 360 , 365 , 368 , 407 , 411 - Signed by JUDGE LESLIE E. KOBAYASHI on 12/27/2018. On the basis of the foregoing, Contrades's Motion to Dismiss Plaintiff's Third Amended Complaint Filed Herein on August 31, 2018, which he filed on September 14, 2018, in his individual capacity; and the County Defendants' joinder of simple agreement, filed September 20, 2018, are HEREBY DENIED. Asher's substantive joinder in the Contrades Motion, which Asher filed on September 21, 2018, in his individual capacity, is HEREBY GRANTED. Plaintiff's IIED claim against Asher is HEREBY DISMISSED WITH PREJUDICE. Contrades is ORDERED to file his answer to Plaintiff's Third Amended Complaint by January 14, 2019. Contrades is CAUTIONED that this deadline will not be affected by any motion for reconsideration that is filed regarding this Order. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF KAUAI, KAUAI POLICE )
DEPARTMENT, DARRYL PERRY, ROY )
ASHER, MICHAEL CONTRADES AND )
DOE DEFENDANTS 16-100,
)
)
Defendants.
)
_____________________________ )
MARK N. BEGLEY,

CIVIL 16-00350 LEK-KJM

ORDER: DENYING DEFENDANT MICHAEL CONTRADES’S MOTION TO DISMISS
PLAINTIFF’S THIRD AMENDED COMPLAINT FILED HEREIN ON AUGUST 31,
2018; DENYING THE COUNTY DEFENDANTS’ JOINDER OF SIMPLE AGREEMENT;
AND GRANTING DEFENDANT ROY ASHER’S SUBSTANTIVE JOINDER
On September 14, 2018, Defendant Michael Contrades
(“Contrades”), in his individual capacity, filed his Motion to
Dismiss Plaintiff’s Third Amended Complaint Filed Herein on
August 31, 2018 (“Contrades Motion”).

[Dkt. no. 360.]

On

September 20, 2018, Defendants County of Kauai (“the County”);
Kauai Police Department (“KPD”); Darryl Perry (“Perry”), in his
official capacity; Roy Asher (“Asher”), in his official capacity;
and Contrades, in his official capacity (collectively, “County
Defendants”) filed a joinder of simple agreement (“County
Joinder”).

[Dkt. no. 365.]

On September 21, 2018, Asher, in his

individual capacity, filed a substantive joinder (“Asher
Joinder”).

[Dkt. no. 368.]

On October 15, 2018, Plaintiff

Mark N. Begley (“Plaintiff”) filed a memorandum in opposition to

the Contrades Motion and a memorandum in opposition to the Asher
Joinder.

[Dkt. nos. 377, 378.]

On October 22, 2018, Asher filed

a reply in support of his joinder, and Contrades filed a reply in
support of his motion.

[Dkt. nos. 379, 382.]

on for hearing on November 5, 2018.

These matters came

On November 6, 2018, this

Court issued an entering order informing the parties of its
rulings on the Contrades Motion and the Asher Joinder.
no. 411.]

[Dkt.

The instant Order supersedes that entering order.

For

the reasons set forth below, the Court rules as follows: the
Contrades Motion is denied in its entirety; the County Joinder is
denied because it merely agreed with the Contrades Motion; and
the Asher Motion is granted.
BACKGROUND
The relevant factual allegations and procedural
background of this case are set forth in this Court’s:
1) January 4, 2018 Order Granting in Part and Denying in Part
Defendant’s Motion to Dismiss Portions of Plaintiff’s First
Amended Complaint (“1/4/18 Order”); 2) January 16, 2018 Order
Granting in Part and Denying in Part Defendant’s Motion to
Dismiss Portions of Plaintiff’s First Amended Complaint (“1/16/18
Order”); and July 31, 2018 Order Granting in Part and Denying in
Part Motion to Dismiss and Substantive Joinder (“7/31/18 Order”).

2

[Dkt. nos. 198, 199, 340.1]

They will not be repeated here

except where relevant to the Contrades Motion and the Asher
Joinder.
Plaintiff filed his original Complaint on June 27,
2016, his First Amended Complaint on May 5, 2017, and his Second
Amended Complaint on February 15, 2018.

[Dkt. nos. 1, 103, 201.]

The Second Amended Complaint alleged the following claims:
•

retaliation, under Title VII of the Civil Rights Act of 1964
(“Title VII”), U.S.C. § 2000e-3(a) and Haw. Rev. Stat.
Chapter 368 and § 378-2(2), against the County and KPD
(“Count I”);

•

aiding and abetting, inciting, compelling, or coercing
retaliation, under Chapter 368 and § 378-2(3),2 against
Perry, Asher, and Contrades, in their individual capacities
(“the Individual Defendants” and “Count II”);3

•

violation of the Hawai`i Whistleblowers’ Protection Act,
Haw. Rev. Stat. § 378-61, et seq., against the County and
KPD (“Count III”); and

1

The 1/4/18 Order is also available at 2018 WL 295799, the
1/16/18 Order is available at 2018 WL 443437, and the 7/31/18
Order is available at 2018 WL 3638083.
2

Effective January 1, 2012, the prohibition against aiding
and abetting retaliation is codified at Haw. Rev. Stat.
§ 378-2(a)(3), and the prohibition against retaliation is
codified at § 378-2(a)(2). 2011 Haw. Sess. Laws Act 206, § 2 at
676, § 5 at 678; see also 1/4/18 Order, at *1 n.2. Although the
Second Amended Complaint cites § 378-2(2) and (3) (2011), it did
not contend Plaintiff’s Count II claim accrued in 2011 so that
§ 378-2 (2011) applies.
3

For ease of reference, although there are multiple ways to
establish liability under § 378-2(a)(3), a claim under
§ 378-2(a)(3) will be referred to as an “aiding and abetting
claim.”
3

•

intentional infliction of emotional distress (“IIED”)
against all Defendants (“Count IV”).

In the 7/31/18 Order, this Court dismissed Counts II and IV
against Contrades, in his individual capacity, and dismissed
Count IV against the County Defendants.

The dismissals were

without prejudice, and Plaintiff was given until August 31, 2018
to file a third amended complaint.

7/31/18 Order, 2018 WL

3638083, at *7.
Plaintiff filed his Third Amended Complaint on
August 31, 2018.4

[Dkt. no. 349.]

The Third Amended Complaint

alleges the same four claims, against the same groupings of
Defendants, as the Second Amended Complaint.

Compare Second

Amended Complaint at pgs. 30-34 with Third Amended Complaint at
pgs. 47-51.

The allegations of the Third Amended Complaint’s

claims themselves are substantively identical to the allegations
of the Second Amended Complaint’s claims, although the Third
Amended Complaint now relies on the current version of
§ 378-2(a)(3) instead of § 378-2(3) (2011).

[Third Amended

Complaint at ¶ 134.]

4

On September 12, 2018, Plaintiff filed an errata to the
Third Amended Complaint (“Errata”). [Dkt. no. 357.] On
September 18, 2018, the County Defendants filed a motion to
strike the Errata, and Contrades, Perry, and Asher, each in his
individual capacity, later filed joinders in the motion. [Dkt.
nos. 361, 363, 364, 366.] On October 26, 2018, the magistrate
judge granted the motion to strike. [Dkt. no. 385.]
4

In the “JURISDICTION AND VENUE” section, Plaintiff
added the following allegations:
4.
The applicable statute of limitations is
tolled for the claims alleged herein by virtue of
Plaintiff’s discovery, on September 19, 2016 and
October 14, 2016, of documents received in
response to Plaintiff’s discovery requests (“the
9/19/16 Production” and “the 10/14/16 Production,”
respectively). These documents establish a
pattern of cooperation, aid and assistance among
Defendants Darryl Perry, Michael Contrades and
Roy Asher in furtherance of a deliberate plan to
assail Plaintiff with retaliatory orders as well
as a barrage of internal and external
investigations based on unsubstantiated, false and
frivolous accusations for the express and intended
purpose of unlawfully targeting and retaliating
against Plaintiff for his actions, beginning in
January 2011, related to the complaint made by KPD
Officer Darla Abbatiello (“the Abbatiello
Complaint”) against Defendant Roy Asher. . . . .
5.
The applicable statute of limitations is
also tolled for the claims alleged herein by
virtue of Plaintiff’s discovery, on November 26,
2016, of correspondence disclosed by the County
from the email account of Defendant Michael
Contrades. These emails (“the 11/26/16 Contrades
Emails”) contain evidence not previously known to
Plaintiff establishing malice and animus on the
part of Defendants Darryl Perry, Michael Contrades
and Roy Asher towards Plaintiff. As more fully
alleged herein, the 11/26/16 Contrades Emails
establish a pattern of cooperation, aid and
assistance among Defendants in furtherance of a
deliberate plan to assail Plaintiff with
retaliatory orders as well as a barrage of
internal and external investigations based on
unsubstantiated, false and frivolous accusations
for the express, intended and improper purpose of
retaliating against Plaintiff for his actions
related to the Abbatiello Complaint. . . .
6.
Defendants deliberately, and with clear
malice towards Plaintiff, pursued this continuous
course of tortious conduct through the execution
5

of specific acts, some of which are identified
below, and which acts caused the harms to
Plaintiff alleged herein. For these reasons, and
those more fully set forth below, the accrual date
of Plaintiff’s claims is 11/26/2016.
[Id. at pgs. 2-4 (emphases added).]
Many of the factual allegations of the Third Amended
Complaint are substantively identical to those of the Second
Amended Complaint.

Compare Third Amended Complaint at ¶¶ 7-121

with Second Amended Complaint at ¶¶ 4-119.

In addition:

•

Plaintiff added paragraph 122, which alleges the 11/26/16
Contrades Emails revealed facts that were previously unknown
to Plaintiff. The vast majority of paragraphs 122.a to
122.www each describes either an email by or to Perry,
Contrades or Asher. [Id. at pgs. 32-45.] Some of the
paragraphs provide contextual factual allegations. See,
e.g., id. at ¶ 122.sss.

•

Plaintiff added paragraph 123, which alleges the 9/19/16
Production revealed facts that were previously unknown to
him. Paragraphs 123.a to 123.f each describes a letter or
memorandum by or to Perry, Contrades or Asher. [Id. at
pgs. 45-47.]

•

Plaintiff added paragraph 124, which alleges the 10/14/16
Production also revealed facts that were previously unknown
to him. Paragraph 124.a descries a letter written by Perry
to the executive director of the E911 Board. [Id. at
pg. 47.]
The Contrades Motion argues Plaintiff’s aiding and

abetting claim against Contrades should be dismissed because it
is not supported by a viable claim that Plaintiff was retaliated
against for his support of the Abbatiello Complaint and a viable
underlying claim that Abbatiello was subjected to discrimination.
Contrades also argues that: individuals are not liable under

6

either Title VII or § 378-2; he is entitled to qualified
immunity/conditional privilege as to both Plaintiff’s aiding and
abetting claim and IIED claim; and the Third Amended Complaint
fails to address the defects in Plaintiff’s IIED claim that were
identified in the 7/31/18 Order.

The Asher Joinder seeks the

dismissal of Plaintiff’s IIED claim against Asher for the same
reasons set forth in the Motion.
DISCUSSION
I.

Plaintiff’s Claims Against Contrades
A.

Aiding and Abetting
First, this Court denies the Contrades Motion as to its

argument that there is no individual liability under either
Title VII or § 378-2.

As this Court has ruled previously,

Plaintiff is not alleging Title VII claims against the individual
defendants, and claims against individuals were clearly allowed
under § 378-2(3) (2011) and are clearly allowed under
§ 378-2(a)(3).

7/31/18 Order, 2018 WL 3638083, at *4 (discussing

1/4/18 Order).
Second, this Court denies the Contrades Motion to the
extent the motion challenges Plaintiff’s aiding and abetting
claim on the ground that the claim does not contain sufficient
allegations about either Abbatiello’s discrimination complaint or
Plaintiff’s protected activity.

This Court has previously

considered and rejected similar arguments as to Plaintiff’s First
7

Amended Complaint and Second Amended Complaint.

Id. at *3-4

(discussing 1/16/18 Order, 2018 WL 443437, at *2).

Those

arguments are again rejected for the same reasons set forth in
this Court’s prior orders.
The 7/31/18 Order dismissed Plaintiff’s aiding and
abetting claim against Contrades because the Second Amended
Complaint did not include sufficient factual allegations to state
a plausible argument that he is not entitled to qualified
immunity because he acted with malice.

Id. at *7; see also id.

at *6 (describing standards for qualified immunity, i.e.
qualified or conditional privilege, under Hawai`i law).
Contrades argues the Third Amended Complaint still fails to plead
a plausible basis to support a finding that he acted with malice
because there are still no allegations that he did anything
outside of the scope of his employment.

The Court disagrees.

Among the new factual allegations in the Third Amended
Complaint are the following:
r)

On April 9, 2012, Deputy Chief Contrades
emailed Hawaii County Deputy Chief Paul K.
Ferreira for the purpose of getting Plaintiff
removed from the Hawai`i E911 Board to which
Plaintiff had been appointed by the Governor
of the State of Hawai`i. In an email
entitled “Mark Begley Status,” Deputy Chief
Contrades wrote that Plaintiff “does not
represent us and as discussed we would like
to replace him with Brandon. Can you give me
the information on who to have a letter
addressed to? I will have a letter drafted
from the Mayor asap for the replacement.”

8

. . . .
t)

On April 24, 2012, Deputy Chief Contrades
emailed Chief Perry, in an email entitled
“Meeting with the Mayor,” informing Chief
Perry that Deputy Chief Contrades had set up
a meeting with the Mayor. “I set it up to
discuss the E911 Board and the replacement of
Begley with [Lieutenant Sherwin] Perez. I
felt that we needed to explain the
circumstance and rational [sic] for
replacement and get his signature on the
letter to the Governor vs. just sending the
letter over to their office. I don’t know
where it would end up if we just sent it and
a personal explanation would be better than a
transmittal letter given who is being
replaced.”

. . . .
v)

On April 27, 2012, Deputy Police Chief [Paul]
Ferreira of the Big Island emailed Deputy
Chief Contrades “[s]ome bad news regarding
Mark Begley’s appointment to the E911 Board,”
and shared an email dated April 24, 2012 from
Kerry Yoneshige at the Department of
Accounting and General Services explaining
that “[u]nfortunately, Mark Begley was
confirmed by the full Senate on March 14 so
he cannot be removed without due notice and
public hearing (as noted in HRS 26-34(d))
which the Governor’s office is not willing to
do at this time.” This email closed the
issue of Plaintiff’s participation on the
E911 Board.

w)

On April 30, 2012, Deputy Chief Contrades
emailed Chief Perry to inform him that he
had, and would again, call Governor Neil
Abercrombie’s representative for Kauai to
request assistance in removing Plaintiff from
the E911 Commission. Deputy Chief Contrades
wrote that when the Governor’s representative
returned the call, “I will be asking him for
assistance to remove [Plaintiff] as an
appointee.”

9

x)

On May 3, 2012, Deputy Chief Contrades
emailed Chief Perry to inform him that the
Office of the Attorney General is looking
into the issue of whether Assistant Chief
Begley can be removed from the E911 Board.

[Third Amended Complaint at ¶¶ 122.r-x (alterations in Third
Amended Complaint).]

In considering the Contrades Motion, this

Court must assume the factual allegations in the Third Amended
Complaint are true.

See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).
Based upon the foregoing paragraphs, Plaintiff was
appointed to the E911 Board by the Governor and confirmed by the
State Senate.

Contrades contacted multiple persons outside of

KPD, as well as outside of the County, in an attempt to have
Plaintiff removed from the E911 Board.

Even when Contrades was

informed on April 24, 2012 that the Governor’s office would not
pursue Plaintiff’s removal at that time, Contrades continued to
pursue the matter.

[Id. at ¶¶ 122.v-x.]

These factual

allegations must be read in the context of the Third Amended
Complaint as a whole and, in particular, the Court notes the
allegations regarding Contrades’s March 15, 2012 email stating:
“‘It’s better for the department that [Plaintiff and another
individual] are not around.’”
omitted).

See id. at ¶ 122.f (emphasis

This Court concludes Plaintiff’s Third Amended

Complaint includes sufficient factual allegations, which are
accepted as true for purposes of the Contrades Motion, to state a

10

plausible argument that Contrades acted with malice.
Order, 2018 WL 3638083, at *6.

See 7/31/18

Contrades is not entitled to

dismissal of Plaintiff’s aiding and abetting claim based on
qualified immunity/conditional privilege.
Plaintiff has therefore stated a plausible aiding and
abetting claim against Contrades.

See Iqbal, 556 U.S. at 678

(“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007))).

The Contrades

Motion is denied as to Count II.
B.

IIED
In the 1/16/18 Order, this Court noted the only timely

factual allegations supporting Plaintiff’s IIED claim against
Contrades in the First Amended Complaint were that KPD received
an animal cruelty report against Plaintiff and Perry had
Contrades order an investigation.

This Court concluded that,

even considering that incident in the context of the time-barred
incidents, the animal cruelty investigation was insufficient to
support an IIED claim.

1/16/18 Order, 2018 WL 443437, at *4.

In

the 7/31/18 Order, this Court noted the Second Amended Complaint
did not allege any additional incidents that were within the
statute of limitations period.

Further, this Court rejected

Plaintiff’s argument that the otherwise time-barred portions of

11

his IIED claim were saved by the discovery rule.

Plaintiff’s

conclusory allegation in the Second Amended Complaint that a
production of United States Equal Employment Opportunity
Commission (“EEOC”) documents in 2016 revealed to him the
outrageous nature of incidents he was previously aware of was
insufficient to state a plausible IIED claim.

7/31/18 Order,

2018 WL 3638083, at *4-5.
Plaintiff’s Third Amended Complaint does not allege any
incidents within the IIED statute of limitations period that were
not alleged in the prior versions of his complaint.

However, the

Third Amended Complaint now includes allegations regarding the
11/26/16 Contrades Emails and the 9/19/16 Production.

Plaintiff

alleges those documents “revealed . . . facts previously unknown
to Plaintiff.”

[Third Amended Complaint at ¶¶ 122, 123.]

Considering the Third Amended Complaint as a whole and accepting
Plaintiff’s factual allegations as true, reasonable people may
differ as to the issue of whether Contrades’s actions were
sufficiently outrageous to support an IIED claim.

See 1/16/18 WL

443437, at *3 (setting forth the elements of an IIED claim and
stating that “‘[t]he question whether the actions of the alleged
tortfeasor are unreasonable or outrageous is for the court in the
first instance, although where reasonable people may differ on
that question it should be left to the jury’” (quoting Young v.
Allstate Ins. Co., 119 Hawai`i 403, 429, 198 P.3d 666, 692

12

(2008))).

Further, Plaintiff has pled sufficient factual

allegations to support a reasonable inference that his IIED claim
did not accrue until he received the 11/26/16 Contrades Emails
and the 9/19/16 Production.

See Iqbal, 556 U.S. at 678 (“A claim

has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” (citing Twombly,
550 U.S. at 556)); 1/16/18 Order, 2018 WL 3638083, at *4
(discussing the discovery rule).

Finally, for the same reasons

as with Plaintiff’s aiding and abetting claim against Contrades,
Plaintiff’s IIED claim against Contrades is supported by
sufficient factual allegations to state a plausible argument that
Contrades acted with malice.

Contrades is not entitled to

dismissal of Plaintiff’s IIED claim based on qualified
immunity/conditional privilege.
Plaintiff has stated a plausible IIED claim against
Contrades.

The Contrades Motion is therefore denied as to

Count IV.
II.

County Joinder
The County Joinder is a joinder of simple agreement

with the Contrades Motion.

See Local Rule LR7.9 (distinguishing

between a substantive joinder and a joinder of simple agreement).
Because this Court has denied the Contrades Motion in its

13

entirety and the County Joinder merely agreed with the Contrades
Motion, the County Joinder is also denied.
III. Plaintiff’s IIED Claim Against Asher
The Asher Joinder contends that, for the reasons set
forth in the Contrades Motion and for the additional reasons in
the Asher Joinder, Plaintiff’s IIED claim against Asher, in his
individual capacity, must be dismissed.5

This Court previously

noted that Plaintiff’s IIED claim against Asher is based upon two
incidents – the 8/5/11 Incident and the issuance of the 5/24/12
ARB Postponement Letter,6 both of which occurred outside of the
limitations period.

1/4/18 Order, 2018 WL 295799, at *2.

Plaintiff has also included allegations regarding those two
incidents in the Third Amended Complaint.
Complaint at ¶¶ 45, 77.]

[Third Amended

The Third Amended Complaint does not

allege any additional actions by Asher against Plaintiff.

The

Third Amended Complaint includes additional allegations regarding
communications about Plaintiff that Asher was involved in:

5

Plaintiff’s aiding and abetting claim against Asher is not
at issue in the Asher Joinder.
6

The 8/5/11 Incident refers to Asher’s circulation of
allegedly false and disparaging information about Plaintiff, and
the 5/24/12 ARB Postponement Letter is a letter Asher sent
Plaintiff informing Plaintiff that the KPD Administrative Review
Board (“ARB”), which Asher was a member of, was postponing the
disciplinary hearing regarding charges brought against Plaintiff
based on a February 22, 2012 incident. See 1/4/18 Order, 2018 WL
295799, at *2.
14

b)

On February 1, 2012, Chief Perry emailed
Deputy Chief Contrades, Assistant Chief
[Alejandre] Quibilan and Assistant Chief
Asher informing them that he had directed two
KPD officers “to report to [Deputy Chief
Contrades] directly and not to Begley.”

. . . .
y)

On May 7, 2012, in an effort to initiate
another Internal Affairs investigation
against Plaintiff and to force an officer
into providing testimony against Plaintiff,
Chief Perry emailed Jesse Guirao of [the
State of Hawaii Organization of Police
Officers], Kauai Chapter. Chief Perry wrote
that he wished to speak with Mr. Guirao
regarding “the alleged release of
confidential information by Assistant Chief
Begley to Office[r] Hsu. . . . However, we
have received information that as a witness,
Officer Hsu has stated he will not be
cooperating. We have not officially been in
communication with Officer Hsu because he has
not acknowledged Assistant Chief Roy Asher’s
emails.[”] . . .

. . . .
ff)

On [May 18, 2012], Chief Perry emailed
Assistant Chief Asher regarding an allegation
that Plaintiff had disseminated confidential
information of another KPD officer, stating
“Please submit a short report concerning this
issue. Send it to me, then I’ll draft a
request to IA to do an investigation. Don’t
worry about the charges, I’ll take of [sic]
that part, just submit what you were involved
in. Mahalo. K1[.]”

. . . .
ww)

On [September 27, 2012], Chief Perry emailed
Assistant Chief Asher and others, including
Deputy Chief Contrades, the following about
Plaintiff’s computer: “If the County Attorney
attempts to retrieve the computer, under no
circumstances is it to be turned over unless
15

by court order. Even if they produce a
subpoena work with the OPA [Office of the
Prosecuting Attorney] and if necessary go
ahead and open a criminal case and place the
computer in evidence. Let me know
immediately if the CA [County Attorney]
attempts anything, and don’t take orders from
anyone except from myself of [sic] the Deputy
— not the Mayor, Managing Director, Police
Commission, and especially not the County
Attorney. I have cc’d the OPA on this, just
in case. Take care. K1.”
xx)

Assistant Chief Asher responded to Chief
Perry’s email, stating “I am in receipt and
acknowledge your directive. I have no
concerns or objection and will whole
heartedly abide and support it.”

yy)

On September 30, 2012, Chief Perry emailed
Lt. Perez, Assistant Chief Asher and Deputy
Chief Contrades, admitting to interference in
an Internal Affairs investigation of
Plaintiff by conducting an end-run around the
County Attorney: “I had to secure Mark’s
computer in the IA because we might have to
examine it for evidence in an on-going
investigation and I didn’t want the County
Attorney to direct IT to take it to their
office because the CA might be involved.”

. . . .
fff) On January 9, 2013, Chief Perry emailed
Mel Rapozo seeking to interfere in the
processing of EEOC complaints, stating that
three persons, including “MB,” have included
Chief Perry’s wife, Solette, in their EEOC
complaints. “If a neutral party doesn’t
intercede soon, this is going to blow up and
the County will stand to lose millions not to
mention a total disintegration of confidence
by the public.”
ggg) On January 9, 2013, Assistant Chief Asher
concurred in the January 9, 2013 email of
Chief Perry, stating in a follow-up email to
Mel Rapozo: “I share and whole heartedly
16

endorse the sentiments the Chief has
expressed.”
[Third Amended Complaint at ¶¶ 122.b-ggg (some alterations in
Third Amended Complaint).]

Even accepting the factual

allegations as true for purposes of the Asher Joinder, the
majority of the allegations merely establish that Asher received
emails from Perry, Asher’s superior at KPD.

As to Perry’s

September 27, 2012 email and January 9, 2013 email, Asher wrote
emails expressing agreement with, and endorsement of, Perry’s
emails.

[Id. at ¶¶ 122.xx, 122.ggg.]

Even accepting Plaintiff’s

allegations that Chief Perry’s actions described in the foregoing
emails were part of a scheme to retaliate against Plaintiff for
his support of and involvement with the Abbatiello Complaint, and
that Asher agreed with and expressed support for the scheme,
there is no allegation that Asher took any action as part of the
scheme, nor that Asher’s expression of agreement and support
contributed to the scheme in any way.

Paragraph 122.y refers to

the fact that Asher sent emails to Officer Hsu, who Perry
apparently wanted to use as a witness in an Internal Affairs
investigation against Plaintiff.

However, even accepting

Plaintiff’s allegation that Perry intended the investigation to
be part of the retaliatory scheme against Plaintiff, there are
insufficient factual allegations to support a reasonable
inference that Asher’s emails to Officer Hsu constituted
participation in the retaliatory scheme.
17

The emails involving Asher that Plaintiff learned about
after the production of the 11/26/16 Contrades Emails do not show
conduct by Asher about which “‘reasonable people may differ on
th[e] question’” of whether the conduct was “‘without cause or
excuse and beyond all bounds of decency.’”

See 1/16/18 Order,

2018 WL 443437, at *3 (quoting Young, 119 Hawai`i at 429, 198
P.3d at 692; Enoka v. AIG Hawaii Ins. Co., 109 Hawai`i 537, 559,
128 P.3d 850, 872 (2006)).

Further, neither the allegations

regarding the 11/26/18 Contrades Emails nor any of the other
factual allegations in the Third Amended Complaint support a
plausible position that Plaintiff did not know, and could not
reasonably have known, about the outrageousness of Asher’s
otherwise time-barred conduct until after Plaintiff reviewed the
materials he obtained in the 2016 productions.
Plaintiff’s Third Amended Complaint does not allege any
incidents involving Asher which occurred within the two-year
limitations period for Plaintiff’s IIED claim.

Further, there

are insufficient factual allegations in the Third Amended
Complaint to support Plaintiff’s position that his IIED claim
against Asher did not accrue until after the document productions
in 2016.

Plaintiff’s IIED claim against Asher, in his individual

capacity, is therefore dismissed as time-barred.7

7

Further, the

Because this Court has dismissed Plaintiff’s IIED claim
against Asher, in his individual capacity, as time-barred, it is
(continued...)
18

dismissal is with prejudice because this Court concludes it is
clear that Plaintiff cannot cure the defect in this claim by
amendment.

See Sonoma Cty. Ass’n of Retired Emps. v. Sonoma

Cty., 708 F.3d 1109, 1118 (9th Cir. 2013) (“As a general rule,
dismissal without leave to amend is improper unless it is clear,
upon de novo review, that the complaint could not be saved by any
amendment.” (brackets, citation, and internal quotation marks
omitted)); see also Zucco Partners, LLC v. Digimarc Corp., 552
F.3d 981, 1007 (9th Cir. 2009) (noting that the failure “to
correct . . . deficiencies in [a] Second Amended Complaint is a
strong indication that the plaintiffs have no additional facts to
plead” (citation and internal quotation marks omitted)).
CONCLUSION
On the basis of the foregoing, Contrades’s Motion to
Dismiss Plaintiff’s Third Amended Complaint Filed Herein on
August 31, 2018, which he filed on September 14, 2018, in his
individual capacity; and the County Defendants’ joinder of simple
agreement, filed September 20, 2018, are HEREBY DENIED.

Asher’s

substantive joinder in the Contrades Motion, which Asher filed on
September 21, 2018, in his individual capacity, is HEREBY

7

(...continued)
not necessary to address the issue of whether Asher would be
entitled to qualified immunity/conditional privilege as to that
claim.
19

GRANTED.

Plaintiff’s IIED claim against Asher is HEREBY

DISMISSED WITH PREJUDICE.
Contrades is ORDERED to file his answer to Plaintiff’s
Third Amended Complaint by January 14, 2019.8

Contrades is

CAUTIONED that this deadline will not be affected by any motion
for reconsideration that is filed regarding this Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 27, 2018.

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

MARK N. BEGLEY VS. COUNTY OF KAUAI, ET AL; CIVIL 16-00350 LEKRLP; ORDER: DENYING DEFENDANT MICHAEL CONTRADES’S MOTION TO
DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT FILED HEREIN ON
AUGUST 31, 2018; DENYING THE COUNTY DEFENDANTS’ JOINDER OF SIMPLE
AGREEMENT; AND GRANTING DEFENDANT ROY ASHER’S SUBSTANTIVE JOINDER

8

The County Defendants and Asher, in his individual
capacity, filed their answers to the Third Amended Complaint on
September 13 and 14, 2018, respectively. [Dkt. nos. 358, 359.]
20