Begley v. County of Kauai, Kauai Police Department

Filing 559

ORDER Denying Defendant Contrades's Motion To Amend Rule 15 Scheduling Order and Denying The County Defendants' Joinder Of Simple Agreement re 531 533 . Signed by JUDGE LESLIE E. KOBAYASHI on 5/3/2019. (cib)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARK N. BEGLEY,

)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF KAUAI, KAUAI POLICE )
DEPARTMENT, DARRYL PERRY, ROY )
ASHER, MICHAEL CONTRADES AND )
DOE DEFENDANTS 16-100,
)
)
Defendants.
)
______________________________)

CIVIL 16-00350 LEK-KJM

ORDER DENYING DEFENDANT CONTRADES’S
MOTION TO AMEND RULE 16 SCHEDULING ORDER AND DENYING
THE COUNTY DEFENDANTS’ JOINDER OF SIMPLE AGREEMENT
On March 22, 2019, Defendant Michael Contrades
(“Contrades”), in his individual capacity, filed his Motion to
Amend Rule 16 Scheduling Order (“Motion”).

[Dkt. no. 531.]

On

March 25, 2019, Defendants County of Kauai (“the County”); Kauai
Police Department (“KPD”); Darryl Perry (“Perry”), in his
official capacity; and Contrades, in his official capacity
(collectively, “County Defendants”), filed a joinder of simple
agreement in the Motion (“Joinder”).

[Dkt. no. 533.]

Plaintiff

Mark N. Begley (“Plaintiff”) filed his memorandum in opposition
on April 8, 2019, and Contrades filed his reply on April 22,
2019.

[Dkt. nos. 541, 551.]

The Court finds this matter

suitable for disposition without a hearing pursuant to Rule

LR7.2(d) of the Local Rules of Practice for the United States
District Court for the District of Hawaii (“Local Rules”).
Contrades’s Motion and the County Defendants’ Joinder are hereby
denied for the reasons set forth below.
BACKGROUND
Plaintiff filed his original Complaint on June 27,
2016, and he filed his First Amended Complaint on May 5, 2017.
[Dkt. nos. 1, 103.]

Plaintiff filed his Second Amended

Complaint on February 15, 2018.

[Dkt. no. 201.]

The operative

pleading is Plaintiff’s Third Amended Complaint, filed on
August 31, 2018.

[Dkt. no. 349.]

Prior to the filing of the Third Amended Complaint,
trial was scheduled to begin on November 20, 2018, and the
dispositive motions deadline was June 20, 2018.

[Second Amended

Rule 16 Scheduling Order, filed 4/23/18 (dkt. no. 277), at ¶¶ 1,
7.]

On June 20, 2018, Perry, in his individual capacity, filed

his Motion for Summary Judgment (“Perry Motion”).
no. 311.]

[Dkt.

On June 27, 2018, the County Defendants filed a

substantive joinder in the Perry Motion (“County Joinder”).
[Dkt. no. 323.]
After the filing of the Third Amended Complaint, the
trial date was subsequently continued to May 6, 2019.

[Amended

Rule 16 Scheduling Order, filed 9/10/18 (dkt. no. 355) (“9/10/18
Scheduling Order”), at ¶ 1.]

The 9/10/18 Scheduling Order
2

specifically stated: “Dispositive motions shall be filed by
December 4, 2018.

Only Dispositive Motions as to the Emotional

Distress Claims may be filed.”
original).]

[Id. at ¶ 7 (emphasis in

It also stated the non-dispositive motions deadline

was February 6, 2019.

[Id. at ¶ 6.]

The Perry Motion and the County Joinder were construed
as addressing the Third Amended Complaint because: the Second
Amended Complaint and the Third Amended Complaint allege the
same claims; and “the changes between the Second Amended
Complaint and the Third Amended Complaint involved Plaintiff’s
claims against Contrades, in his individual capacity, which
[we]re not at issue in the Perry Motion and the County Joinder,
and the timeliness of the [intentional infliction of emotional
distress] claim.”

[Summary Judgment Order; etc., filed 4/11/19

(dkt. no. 549) (“4/11/19 Summary Judgment Order”), at 24.1]

The

Perry Motion was denied in its entirety, and the County Joinder
was granted in part and denied in part.
Judgment Order, 2019 WL 1590568, at *21.

4/11/19 Summary
This Court, inter

alia, stated it could not rule on: Perry’s qualified/conditional
privilege defense on summary judgment; id. at *14; or the County
Defendants’ qualified immunity defense to Plaintiff’s federal

1

The 4/11/19 Summary Judgment Order is also available at
2019 WL 1590568.

3

retaliation claim,2 id. at *17.

The 4/11/19 Summary Judgment

Order also stayed the portions of Plaintiffs’ remaining state
law claims based on acts related to the County’s Return to Work
Program (“RTWP”) and directed the parties to submit letter
briefs addressing whether the stayed claims can be severed or
whether the entire case must be stayed.

Id. at *21.

The

parties submitted their letter briefs on April 26, 2019, [dkt.
nos. 553 to 556,] and the issue is still pending before this
Court.
On September 14, 2018, Contrades filed a motion to
dismiss the Third Amended Complaint (“Motion to Dismiss”).
[Dkt. no. 360.]

This Court denied the Motion to Dismiss in an

order filed on December 27, 2018 (“12/27/18 Dismissal Order”).
[Dkt. no. 434.3]

On January 10, 2019, Contrades filed a motion

for reconsideration of the 12/27/18 Dismissal Order (“Motion for
Reconsideration”), which this Court denied in an order filed on
March 7, 2019 (“3/7/19 Reconsideration Order”).

[Dkt. no. 520.4]

2

Count I of the Third Amended Complaint alleges
retaliation, under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3(a) and Haw. Rev. Stat. Chapter 368 and Haw.
Rev. Stat. § 378-2(a)(2), against the County and KPD.
3

The 12/27/18 Dismissal Order is also available at 2018 WL
6816045.
4

The 3/7/19 Reconsideration Order is also available at 2019
WL 1086346.

4

On April 1, 2019, Contrades filed a notice of appeal from this
Court’s ruling that he was not entitled to dismissal of
Plaintiff’s claims based on qualified/conditional privilege.5
[Dkt. no. 535.]

The Court directed the parties to submit letter

briefs addressing the effect of Contrades’s appeal.
4/4/19 (dkt. no. 538).]

[EO, filed

The parties submitted their letter

briefs on April 9, 2019, [dkt. nos. 543 to 546,] and the Court
held a status conference on April 12, 2019, [Minutes, filed
4/12/19 (dkt. no. 550)].

However, this Court ultimately

determined that Contrades’s appeal does not require a stay of
the case.
On February 14, 2019, Perry, in his individual
capacity, moved to continue the May 6, 2019 trial date, in light
of his recovery from injuries that he sustained in a serious
accident.

[Dkt. no. 473.]

The motion was granted, and the

trial was continued to August 26, 2019.

[Minutes, filed 3/14/19

(dkt. no. 523); Amended Rule 16 Scheduling Order, filed 3/18/19
(dkt. no. 527) (“3/18/19 Scheduling Order”), at ¶ 1.]

The

3/18/19 Scheduling Order noted that both the non-dispositive

5

“A district court’s denial of qualified immunity on legal
grounds is a final decision subject to interlocutory appeal.”
Knox v. Sw. Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997)
(citations omitted).

5

motions deadline and the dispositive motions deadline were
closed.

[Id. at ¶ 7.]
Contrades filed the instant Motion after the filing of

the 3/18/19 Scheduling Order.

He seeks an amendment of the

3/18/19 Scheduling Order to allow him to file a motion for
summary judgment.

Contrades contends there is good cause for

the amendment because: the 3/7/19 Reconsideration Order
contemplated his filing of a motion for summary judgment; and
previously unavailable testimony from Plaintiff and his treating
physician demonstrates that Contrades did not act with malice
nor animus toward Plaintiff, and Contrades was acting within the
authority and discretion of his position with KPD.
STANDARD
Fed. R. Civ. P. 16(b)(4) states that a court’s
scheduling order “may be modified only for good cause and with
the judge’s consent.”

This district court has stated:

The Rule 16(b) good cause inquiry focuses on
the diligence of the party seeking to modify the
scheduling order. Zivkovic v. S. Cal. Edison
Co., 302 F.3d 1080, 1087 (9th Cir. 2002). The
pretrial schedule may be modified if the deadline
could not have been reasonably met despite the
diligence of the party seeking the extension.
Id. (citing Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 609 (9th Cir. 1992)) (internal
quotation marks and citations omitted).
. . . .
. . . Rule 16 is designed to prevent parties
from benefitting from carelessness,
6

unreasonability, or gamesmanship. In re Cathode
Ray Tube Antitrust Litigation, 2014 WL 4954634,
*2 (N.D. Cal. Oct. 1, 2014) (citing Orozco v.
Midland Credit Mgmt. Inc., 2013 WL 3941318, at *3
(E.D. Cal. July 30, 2013)). . . .
Diligence of the party seeking amendment is
the critical issue in the good cause
determination. The diligence required for a
showing of good cause has two parts:
(1) diligence in discovering the basis for
amendment; and,
(2) diligence in seeking amendment once the
basis for amendment has been discovered.
Positive Techs., Inc. v. Sony Elecs., Inc., 2013
WL 322556, at *2 (N.D. Cal. Jan. 28, 2013).
Rigsbee v. City & Cty. of Honolulu, Civ. No. 17-00532 HG-RT,
2019 WL 984276, at *3-4 (D. Hawai`i Feb. 28, 2019).
DISCUSSION
I.

3/7/19 Reconsideration Order
Contrades asserts the 3/7/19 Reconsideration Order

“implicitly invited” him to seek an amendment of the operative
scheduling order to file a motion for summary judgment.
in Supp. of Motion at 1-2.]

[Mem.

In the 12/27/18 Dismissal Order,

this Court, inter alia, rejected Contrades’s argument that he
was entitled to dismissal of Plaintiff’s claims against him
based on qualified/conditional privilege.6

6

2018 WL 6816045, at

Plaintiff alleges the following claims against Contrades,
in his individual capacity: aiding and abetting retaliation,
under Haw. Rev. Stat. Chapter 368 and Haw. Rev. Stat.
(. . . continued)
7

*3-6.

As to Count II, this Court concluded that “Plaintiff’s

Third Amended Complaint includes sufficient factual allegations,
which are accepted as true for purposes of [Contrades’s Motion
to Dismiss], to state a plausible argument that Contrades acted
with malice.”7

Id. at *4.

conclusion as to Count IV.

This Court reached the same
Id. at *5.

Contrades’s Motion for

Reconsideration argued this Court erred in its rulings regarding
the sufficiency of Plaintiff’s malice allegations.
After concluding that nothing in Contrades’s Motion
for Reconsideration constituted a ground for reconsideration of
the 12/27/18 Dismissal Order, this Court stated, “to the extent
that Contrades argues other evidence shows he did not act with
malice and/or his actions had a legitimate purpose, nothing in
the 12/27/18 [Dismissal] Order prevents him from revisiting the
§ 378-2(a)(3) (“Count II”); and intentional infliction of
emotional distress (“Count IV”).
7

This Court’s July 31, 2018 order granting in part and
denying in part Contrades’s motion to dismiss the Second Amended
Complaint (“7/31/18 Dismissal Order”) describes the standard for
determining whether a defendant is entitled to the qualified or
conditional privilege under Hawai`i law. [7/31/18 Dismissal
Order (dkt. no. 340) at 15-17.] The 7/31/18 Dismissal Order is
also available at 2018 WL 3638083. “When a public official is
motivated by malice, and not by an otherwise proper purpose,
Hawaii law provides that the cloak of immunity is lost and the
official must defend the suit the same as any other defendant.”
7/31/18 Order, 2018 WL 3638083, at *6 (some citations omitted)
(citing Marshall v. Univ. of Haw., 821 P.2d 937, 946 (Haw. Ct.
App. 1991), abrogated on other grounds by Hac v. Univ. of Haw.,
73 P.3d 46 (Haw. 2003)).

8

qualified immunity/conditional privilege issue in a motion for
summary judgment and/or at trial.”
Order, 2019 WL 1086346, at *2.

3/7/19 Reconsideration

Contrades’s argument that this

statement was an encouragement to move to amend the operative
scheduling order is misplaced.
By the time Contrades filed his Motion for
Reconsideration on January 10, 2019, the dispositive motions
deadline had already passed.
¶ 7.

See 9/10/18 Scheduling Order at

The quoted statement in the 3/7/19 Reconsideration Order

merely recognized that Contrades could move to amend the
scheduling order if he wanted to file a motion for summary
judgment.

This Court did not suggest that he should do so, nor

did this Court indicate that it would grant a motion to extend
the dispositive motions deadline.

Nothing in the 3/7/19

Reconsideration Order reduces Contrades’s burden in the instant
Motion; he must establish that there is good cause to extend the
dispositive motions deadline.
II.

Good Cause
A.

Gamesmanship
A scheduling order should not be amended to allow a

party to “benefit[] from . . . gamesmanship.”

Rigsbee, 2019 WL

984276, at *4 (citing In re Cathode Ray Tube Antitrust
Litigation, 2014 WL 4954634, *2 (N.D. Cal. Oct. 1, 2014)).
Contrades chose to move for dismissal of the Third Amended
9

Complaint.

Further, although the written order denying the

Motion to Dismiss was filed on December 27, 2018, this Court
issued an entering order November 6, 2018, informing the parties
of its rulings on the Motion to Dismiss.

[Dkt. no. 411.]

Because Contrades knew, almost a month before the December 4,
2018 dispositive motions deadline, that the claims against him
would not be dismissed, he could have filed a motion for summary
judgment prior to the December 4, 2018 deadline.

If he was

unable to file a motion for summary judgment between November 6,
2018 and December 4, 2018, Contrades could have filed a motion
to amend the scheduling order during that period.

He did not do

so.
Even after the 12/27/18 Dismissal Order was filed,
Contrades chose to file the Motion for Reconsideration, which
merely regurgitated arguments he previously raised in the Motion
to Dismiss.

See 3/7/19 Reconsideration Order, 2019 WL 1086346,

at *2 (“The arguments Contrades makes in the Motion for
Reconsideration . . . were raised in connection with the Motion
to Dismiss and considered by this Court.” (citations omitted)).
Contrades could have filed a motion to amend the scheduling
order while the Motion for Reconsideration was pending.
Instead, he waited until approximately two weeks after the
3/7/19 Reconsideration Order was filed to bring the instant
Motion.
10

Contrades made strategic decisions to file the Motion
to Dismiss and the Motion for Reconsideration and to wait until
after those strategies failed to seek an amendment of the
scheduling order.

The fact that the strategic decision to file

the Motion to Dismiss and the Motion for Reconsideration was
unsuccessful does not constitute good cause to amend the
dispositive motions deadline.

To rule otherwise would allow

Contrades to benefit from gamesmanship.
B.

Newly Available Evidence
Plaintiff’s treating psychologist, Dianne Gerard,

Ph.D., and Plaintiff were both deposed after the dispositive
motions deadline.

See Motion, Decl. of Counsel, Exh. A

(excerpts of draft trans. of 2/27/19 depo. of Dr. Gerard
(“Gerard Depo.”)), Exh. B (excerpts of draft trans. of 3/7/19
depo. of Pltf. (“Pltf. Depo.”)).

Contrades argues there is good

cause to extend the dispositive motions deadline because
testimony given during those depositions supports his intended
motion for summary judgment.

Specifically, Dr. Gerard testified

that, during her sessions with Plaintiff, he gave her a copy of
the notices of disciplinary action (“NDAs”) against him, and he
discussed each, denying that there was a basis for discipline.
[Gerard Depo. at 103-05.]

In his deposition, Plaintiff

confirmed he discussed the NDAs “generally” with Dr. Gerard.
[Pltf. Depo. at 204.]
11

First, Dr. Gerard is a witness that was known to
Contrades and the other defendants long before her February 2019
deposition.

See, e.g., 4/11/19 Summary Judgment Order, 2019 WL

1590568, at *9 & n.10 (“The County Department of Personnel
Services sent Plaintiff a letter dated November 24, 2014,
stating Plaintiff’s psychologist informed the office that
Plaintiff would not able to return to work at KPD.” (citing
correspondence between Dr. Gerard and Ele Wood in April 2014
regarding Plaintiff’s work restrictions).8

The fact that the

parties waited until February 2019 to depose Dr. Gerard and
until March 2019 to depose Plaintiff does not show diligence.
This Court finds that Contrades did not exercise “diligence in
discovering the basis for amendment” of the dispositive motions
deadline.

See Rigsbee, 2019 WL 984276, at *4 (quoting Positive

Techs., Inc. v. Sony Elecs., Inc., 2013 WL 322556, at *2 (N.D.
Cal. Jan. 28, 2013)).
Further, the fact that Plaintiff contested the
legitimacy of the NDAs and the fact that the defendants asserted
there was a legitimate basis for all of the NDAs were already
known to the parties prior to Dr. Gerard’s deposition.

8

See,

Brandvold Ku, Inc. was the insurance adjusting company
that handled Plaintiff’s workers’ compensation claim. Ele Wood
was the Senior Adjuster assigned to the claim. 4/11/19 Summary
Judgment Order, 2019 WL 1590568, at *8.

12

e.g., 4/11/19 Order, 2019 WL 1590568, at *4-6 (listing multiple
internal investigations opened regarding Plaintiff, including
NDAs issued by Contrades, and noting that Perry argued each NDA
had an evidentiary basis).9

Moreover, if the excerpt of

Dr. Gerard’s deposition attached to the Motion was submitted by
Contrades in support of a motion for summary judgment, this
Court would have to view it in the light most favorable to
Plaintiff.

See Crowley v. Bannister, 734 F.3d 967, 976 (9th

Cir. 2013).

So construed, Dr. Gerard’s testimony would not

support rulings that there is no genuine issue of material fact
and Contrades is entitled to the qualified/conditional privilege
for Plaintiff’s claims arising from the NDAs as a matter of law.
Further, Plaintiff’s claims against Contrades are based upon
other incidents besides the issuance of the NDAs.

See, e.g.,

12/27/18 Order, 2018 WL 6816045, at *4 (discussing allegations
that Contrades attempted to have Plaintiff removed from the E911
Board).
In light of the forgoing, this Court finds that
Dr. Gerard’s deposition testimony in February 2019 and
Plaintiff’s deposition testimony in March 2019 do not constitute
9

Perry filed the materials cited in this passage of the
4/11/19 Summary Judgment Order in June and July of 2018. See
generally Perry’s concise statement of facts in supp. of Perry
Motion, filed 6/20/18 (dkt. no. 310); Suppl. decl. of Greg H.
Takase re: Perry Motion, filed 7/2/18 (dkt. no. 326).

13

previously unavailable evidence.

Therefore the testimony does

not establish good cause to amend the dispositive motions
deadline.
III. Other Circumstances Delaying the Trial Date
This Court continued the May 6, 2019 trial date in
light of issues related to Perry’s recovery.

The trial date may

be continued further: 1) in light of the stay of Plaintiff’s
state law claims related to the RTWP; and/or 2) if Perry, in his
individual capacity, or the County Defendants file an appeal of
this Court’s rulings on qualified immunity and/or the
qualified/conditional privilege.

Thus, there would be time for

the parties to brief a motion for summary judgment filed by
Contrades and for this Court to rule upon the motion.

However,

the focus of the Court’s inquiry in determining whether to amend
the scheduling order is whether Contrades was diligent and
whether he could have reasonably complied with the dispositive
motions deadline through the exercise of diligence.
Zivkovic, 302 F.3d at 1087.

See

The issues related to Perry’s

recovery, the stay of claims related to the RTWP, and the
possible appeal by Perry or the County Defendants are not
relevant to the issue of whether Contrades was diligent.

This

Court therefore declines to consider those circumstances in
ruling on the instant Motion.

14

IV.

Ruling
Having considered all of the relevant circumstances,

this Court finds that Contrades has not established good cause
to amend the operative scheduling order.

Therefore, Contrades

has failed to establish any ground that warrants an extension of
the dispositive motions deadline.
CONCLUSION
On the basis of the foregoing, Contrades’s Motion to
Amend Rule 16 Scheduling Order, filed March 22, 2019, and the
County Defendants’ joinder of simple agreement in the Motion,
filed March 25, 2019, are HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, May 3, 2019.

MARK H. BEGLEY VS. COUNTY OF KAUAI, ET AL; CV 16-00350 LEK;
ORDER DENYING DEFENDANT CONTRADES'S MOTION TO AMEND RULE 16
SCHEDULING ORDER AND DENYING THE COUNTY DEFENDANTS' JOINDER OF
SIMPLE AGREEMENT

15