Marine Lumber Co. vs. Precision Moving & Storage, Inc.

Filing 160

ORDER DENYING APPEALS OF THE MAGISTRATE JUDGE'S ORDERS FILED ON JUNE 1, 2017, AUGUST 16, 2017, AND AUGUST 17, 2017 re 130 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Marine Lumber Co. re 106 Orde r re 76 APPEAL OF MAGISTRATE JUDGE DECISION to District Court filed by Precision Moving & Storage, Inc., re 124 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Precision Moving & Storage, Inc. re 105 Memorandum & Opinio n. Signed by JUDGE LESLIE E. KOBAYASHI on 10/17/2017. The following are HEREBY DENIED: Defendant's June 9, 2017 appeal of the magistrate judge's Order Granting Plaintiff's Motion for Pr otective Order and Sanctions for Discovery Abuse; Defendant's August 25, 2017 appeal of the magistrate judge's Memorandum Opinion and Order on Discovery Issues; and Plaintiff's August 31, 2017 appeal of the magistrate judge's Ord er Denying Plaintiff's Motion for Leave to Amend. The magistrate judge's orders are AFFIRMED, and Defendant is ORDERED to comply with the June 1, 2017 order and the August 16, 2017 order by the deadlines set forth in the instant Order. (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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARINE LUMBER CO., an Oregon
corporation,

)
)
)
)
Plaintiff,
)
vs.
)
)
PRECISION MOVING & STORAGE
)
)
INC., a Hawaii corporation;
DOE DEFENDANTS 1-50,
)
)
)
Defendants.
_____________________________ )

CIVIL 16-00365 LEK-RLP

ORDER DENYING APPEALS OF THE MAGISTRATE JUDGE’S ORDERS
FILED ON JUNE 1, 2017, AUGUST 16, 2017, AND AUGUST 17, 2017
Before the Court are the following appeals of orders
issued by the magistrate judge:
-Defendant Precision Moving & Storage Inc.’s (“Defendant” or
“Precision”) appeal, filed on June 9, 2017, of the June 1,
2017 Order Granting Plaintiff’s Motion for Protective Order
and Sanctions for Discovery Abuse (“6/1/17 Order” and
“6/1/17 Order Appeal”); [dkt. nos. 74, 76;]
-Defendant’s appeal, filed on August 25, 2017, of the August 16,
2017 Memorandum Opinion and Order on Discovery Issues
(“8/16/17 Order” and “8/16/17 Order Appeal”); [dkt. nos.
105, 124;1] and
-Plaintiff Marine Lumber
filed on August 31,
Denying Plaintiff’s
Order” and “8/17/17

Co.’s (“Plaintiff” or “Marine”) appeal,
2017, of the August 17, 2017 Order
Motion for Leave to Amend (“8/17/17
Order Appeal”); [dkt. nos. 106, 130].

Plaintiff filed its response to the 6/1/17 Order Appeal on
June 23, 2017, and Defendant filed its reply on August 29, 2017.
[Dkt. nos. 79, 128.]
1

Plaintiff filed its response to the 8/16/17

The 8/16/17 Order is also available at 2017 WL 3568668.

Order Appeal on September 8, 2017, and Defendant filed its reply
on September 22, 2017.

[Dkt. nos. 140, 151.]

Defendant filed

its response to the 8/17/17 Order Appeal on September 14, 2017,
and Plaintiff filed its reply on September 28, 2017.
146, 156.]

[Dkt. nos.

The Court has considered the appeals as non-hearing

matters pursuant to Rule LR7.2(e) of the Local Rules of Practice
of the United States District Court for the District of Hawai`i
(“Local Rules”).

The 6/1/17 Order Appeal, the 8/16/17 Order

Appeal, and the 8/17/17 Order Appeal are hereby denied for the
reasons set forth below.
BACKGROUND
I.

6/1/17 Order Appeal
A settlement conference was originally scheduled for

May 23, 2017, and the parties agreed to depose Edward McGrath,
Plaintiff’s party representative, in Hawai`i on May 24, 2017
because Plaintiff’s lead counsel and Mr. McGrath – who both live
in Oregon – would be in Hawai`i for the settlement conference.
When the settlement conference was continued to June 6, 2017,2
Defendant refused to continue Mr. McGrath’s deposition to June 7,
2017.

[6/1/17 Order at 1-2.]

Defense counsel notified

Plaintiff’s counsel that Mr. McGrath’s deposition would proceed
on May 24, 2017.

[Def.’s Mem. in Opp. to Motion for Protective

2

The settlement conference was continued “[p]er counsel’s
agreement.” [EO, filed 4/28/17 (dkt. no. 62).]
2

Order, filed 5/25/17 (dkt. no. 71), Decl. of Sheri J. Tanaka,
Exh. F (letter dated 5/6/17).]

Plaintiff did not produce

Mr. McGrath for deposition on May 24.

See Reply in Supp. of

6/1/17 Order Appeal, Decl. of Sheri J. Tanaka (“Tanaka 6/1/17
Order Appeal Reply Decl.”) at ¶ 5 (stating that the 6/1/17 Order
was filed “eight days after the no-show”).3
Two days before the scheduled deposition date,
Plaintiff filed a Motion for Protective Order and Sanctions for
Discovery Abuse (“Motion for Protective Order”).

[Dkt. no. 69.]

The magistrate judge granted the Motion for Protective Order,
finding that there was good cause to prevent undue burden and
expense.

[6/1/17 Order at 5.]

The magistrate judge awarded

Plaintiff $2,500 in attorneys’ fees and costs, finding that
Defendant’s objections to the proposed June 7, 2017 deposition
date were not substantially justified.

[Id. at 6-7.]

In the 6/1/17 Order Appeal, Defendant argues that: the
magistrate judge erred in allowing Plaintiff to dictate the date
of the deposition based on Plaintiff’s preference; making
Mr. McGrath and Plaintiff’s counsel travel to Hawai`i for the
May 24, 2017 deposition would not have an undue burden or expense
because Plaintiff chose to file the case in Hawai`i; Plaintiff
did not try to resolve the dispute without court intervention;

3

Mr. McGrath’s deposition occurred on July 21, 2017, in
Portland, Oregon. [Tanaka 6/1/17 Order Appeal Reply Decl. at
¶ 6.]
3

and the fee award was unrelated to Mr. McGrath’s deposition.
II.

8/16/17 Order Appeal
On April 28, 2017, Plaintiff’s counsel requested to

conduct depositions of various Precision personnel on June 8 and
9, 2017, i.e. following the June 7, 2017 settlement conference.
Defendant’s counsel did not inform Plaintiff’s counsel until
June 5, 2017 that Defendant’s counsel and witnesses were not
available on those dates, and counsel did not provide any
explanation.

[8/16/17 Order at 4-5.]

“Precision, its counsel,

and its corporate representative did not appear for the
depositions.”

[Id. at 5.]

Defendant did not move for a

protective order regarding the June 8 and 9 depositions.
On July 3, 2017, Plaintiff filed a Motion to Hold
Defendant in Contempt for Failure to Appear and for Sanctions for
Discovery Abuse regarding the depositions noticed for June 8 and
9 (“Depositions Motion”).

[Dkt. no. 80.]

On July 7, 2017,

Plaintiff filed a Motion for Sanctions for Discovery Abuse,
arguing that sanctions were warranted because the majority of
Defendant’s written discovery responses were deficient.
(“Sanctions Motion”).

[Dkt. no. 82.]

The magistrate judge

granted both motions in part and denied them in part.
Order at 1.]

[8/16/17

The magistrate judge granted the Deposition Motion

insofar as he ordered Defendant to pay: the expenses for new
deposition dates, up to $1,500; and $1,500 in attorneys’ fees and

4

costs that Plaintiff incurred because of the missed June 8 and 9
depositions and in bringing the Depositions Motion.

[Id. at 6.]

In response to the Sanctions Motion, the magistrate judge
concluded that Defendant’s responses to various discovery
requests were inadequate, ordered Defendant to provide complete
responses, and sanctioned Defendant’s counsel $2,500.

[Id. at 7-

13.]
In the 8/16/17 Order Appeal, Defendant argues that: the
order to provide additional discovery responses and the award of
sanctions was not appropriate because the Sanctions Motion was
not a motion to compel; the magistrate judge should not have
ordered Defendant to supplement its responses to Plaintiff’s
requests for interrogatories and requests for admissions, and
should not have awarded sanctions, because Defendant had already
provided substantive responses in supplemental responses; and the
magistrate judge’s ruling regarding the June 8 and 9 depositions
was inconsistent with his ruling in the 6/1/17 Order regarding
the May 24, 2017 deposition of Mr. McGrath.

Defendant argues

that the inconsistency is evidence of favoritism toward Marine’s
mainland counsel.
III. 8/17/17 Order Appeal
On June 22, 2017, Plaintiff filed a Motion for Leave to
Amend (“Motion to Amend”).

[Dkt. no. 77.]

Plaintiff sought

leave to: add a claim for fraud in the inducement, with a prayer

5

for punitive damages; add a claim for violation of the Uniform
Commercial Code (“UCC”); and make various changes to “clean up”
the Complaint, including adding a prayer for incidental damages,
clarifying the existing prayer for interest, changing the
terminology in the Complaint from “materials” to “goods”, and
adjusting the relevant date ranges.

The magistrate judge denied

leave to amend because the deadline to amend pleadings had passed
and Plaintiff did not show that it was diligent in pursuing the
new claims.

The magistrate judge found that Plaintiff knew about

the basis for the proposed fraud and UCC claims by October 2016
from Precision’s answer and from the materials Defendant
submitted in opposition to Plaintiff’s Motion for Summary
Judgment.4

[8/17/17 Order at 3-5.]
In the 8/17/17 Order Appeal, Plaintiff asserts that it

was diligent in seeking to bring its new claims because discovery
was stayed until this Court filed the Order Denying Plaintiff’s
Motion for Summary Judgment (“Summary Judgment Order”) on

4

Defendant filed its Answer to the Complaint Filed June 30,
2016 (“Answer”) on August 5, 2016. [Dkt. no. 15.] Plaintiff
filed its Motion for Summary Judgment on the same day. [Dkt. no.
17.] Defendant filed its memorandum in opposition to the Motion
for Summary Judgment (“Summary Judgment Opposition”) on
October 10, 2016. [Dkt. no. 28.] Plaintiff filed its reply
(“Summary Judgment Reply”) on October 17, 2017. [Dkt. no. 30.]
This Court held a hearing on October 31, 2016. Plaintiff filed a
surreply (“Summary Judgment Surreply”) on November 15, 2016.
[Dkt. no. 40.]
6

March 28, 2017.5

See dkt. no. 48 (Summary Judgment Order).6

Plaintiff states that it did not have a factual basis to plead
the fraud and UCC claims until after discovery.

Plaintiff argues

it was reasonable for it not to take action on this case during
the stay because this Court’s statements at the hearing on the
Motion for Summary Judgment suggested that this Court was likely
to grant at least partial summary judgment in Plaintiff’s favor.
Thus, Plaintiff argues it was reasonable for it to wait until the
Summary Judgment Order was filed to purpose the possible fraud
and UCC claims.
STANDARD
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

5

The magistrate judge stayed discovery “until the court
issue[d] a ruling on Plaintiff’s pending motion for summary
judgment.” [Order Granting in Part & Denying in Part Pltf.’s
Motion for Protective Order, filed 12/23/16 (dkt. no. 46), at 4.]
On January 31, 2017, this Court issued an entering order
informing the parties that the Motion for Summary Judgment was
denied and that a written order would follow (“1/31/17 EO
Ruling”). [Dkt. no. 47.] The stay remained in effect until the
Summary Judgment Order was issued on March 28. See, e.g., 6/1/17
Order at 3 (discussing the stay).
6

The Summary Judgment Order is also available at 2017 WL
1159093.
7

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
McAllister).

8

DISCUSSION
I.

6/1/17 Order Appeal
Defendant first argues that Plaintiff’s request to

continue Mr. McGrath’s deposition from May 24, 2017 to June 7,
2017 was merely a matter of Plaintiff’s preference.

This

argument is rejected because, as the magistrate judge found, the
request was clearly based on the continuance of the settlement
conference.

[6/1/17 Order at 2.]

Further the two-week delay was

“relatively minor in the scope of this litigation.”

[Id. at 3.]

The magistrate judge also found that it was an undue
burden and expense to require Plaintiff’s lead counsel and
Mr. McGrath to travel to Hawai`i for the May 24 deposition and
again for the June 6 settlement conference, particularly because
the deposition would have been unnecessary if the settlement
conference was successful.

[Id.]

Neither the fact that

Plaintiff chose to file this case in Hawai`i nor any other
argument in Defendant’s 6/1/17 Order Appeal establishes that the
magistrate judge’s finding was clearly erroneous.
Defendant’s argument that Plaintiff’s counsel did not
attempt to resolve the issue without court intervention is also
rejected.

The magistrate judge found that Plaintiff’s counsel

made multiple attempts to confer with defense counsel in order to
address the issue regarding Mr. McGrath’s deposition, and it was
defense counsel who refused to correspond with Plaintiff’s lead
9

counsel by email and was uncooperative when Plaintiff’s lead
counsel attempted to schedule a telephone conference.
7.]

[Id. at 6-

Defendant has not identified any evidence in the record

which establishes that the magistrate judge’s finding was clearly
erroneous.

In fact, the record contains abundant support for the

magistrate judge’s finding.

See generally Pltf.’s Motion for

Protective Order, Decl. of Joshua D. Stadtler (“Stadtler
Protective Order Decl.”), Exh. 2 (correspondence between
Mr. Stadtler and defense counsel regarding various discovery
issues, including the scheduling of Mr. McGrath’s deposition).
Defendant’s final argument that the $2,500 award of
fees and costs was unrelated to Mr. McGrath’s deposition is also
rejected.

The Motion for Protective Order sought $5,000 in

sanctions against Defendant.

[Motion for Protective Order at 3.]

Defendant incurred “in excess of $5,000 in attorney fees in
[Mr. Stadtler’s] ultimately unsuccessful efforts to confer with
[defense] counsel about the disputed issue that gave rise to this
Motion, and then in drafting this Motion, the supporting
declarations, and compiling the exhibits.”
Order Decl. at ¶ 10.]

[Stadtler Protective

The implicit finding that Plaintiff

incurred at least $2,500 in reasonable attorneys’ fees and costs
associated with Defendant’s refusal to reschedule Mr. McGrath’s
deposition was not clearly erroneous, and the $2,500 award in the
6/1/17 Order was not contrary to law.

10

See Fed. R. Civ. P.

26(c)(3) (stating that Fed. R. Civ. P. 37(a)(5)(A) “applies to
the award of expenses” related to a motion for a protective
order).7
Defendant has failed to show that the 6/1/17 Order was
clearly erroneous or contrary to law.

Defendant’s 6/1/17 Order

Appeal is therefore denied, and the magistrate judge’s 6/1/17
Order is affirmed.8

This Court orders Defendant to pay the

$2,500 award of attorneys’ fees and costs to Plaintiff, through
Plaintiff’s counsel, by December 1, 2017.

7

Rule 37(a)(5)(A) states:
If the motion is granted – or if the disclosure or
requested discovery is provided after the motion
was filed – the court must, after giving an
opportunity to be heard, require the party or
deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or
both to pay the movant’s reasonable expenses
incurred in making the motion, including
attorney’s fees. But the court must not order
this payment if:
(i) the movant filed the motion before
attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure,
response, or objection was substantially
justified; or
(iii) other circumstances make an award of
expenses unjust.

8

Any argument raised in the 6/1/17 Order Appeal that is not
specifically addressed in this Order is also rejected.
11

II.

8/16/17 Order Appeal
In the 8/16/17 Order Appeal, Defendant first argues

that the magistrate judge erred in construing the Sanctions
Motion as a motion to compel.

The Sanctions Motion primarily

sought an order
strik[ing] Precision’s Answer and enter[ing] a
default judgment in Marine’s favor and against
Precision in the principal amount of $130,690.00,
plus pre- and post-judgment interest thereon at
the statutory rate of 10 percent per annum from
the date such amount was due and owing until paid
in full, together with an award of statutory
attorney fees, pursuant to Section 607-14 of the
Hawaii Revised Statutes.
[Sanctions Motion at 4.]

Plaintiff also sought various other

forms of relief as an alternative to terminating sanctions,
including an order “striking Precision’s boilerplate objections
to Marine’s admission and document production requests, and
interrogatories, and requiring Precision to amend and supplement
each of Precision’s responses so as to directly respond to the
request or interrogatory.”

[Id. at 5-6 n.5.]

Defendant notes

that the 8/16/17 Order recognized Plaintiff had not sought to
compel a response to any specific discovery request.
Order Appeal at 3.]

[8/16/17

However, this does not mean the Sanctions

Motion was not a motion to compel because Plaintiff’s position
was that “effectively all” of Defendant’s responses were
inadequate, and all of Defendant’s responses were “littered with
improper and unnecessarily combative boilerplate objections.”

12

[Sanctions Motion at 3.]

The magistrate judge did not commit

clear error in treating the Sanctions Motion like a motion to
compel for purposes of Rule 37(a).
Defendant next argues that the magistrate judge erred
in ordering it to provide supplemental interrogatory responses
because Defendant had already submitted supplemental
interrogatory responses on July 5, 2017.
at 5.]

[8/16/17 Order Appeal

Even if the magistrate judge erred by not acknowledging

the submission of Plaintiff’s July 5 supplemental interrogatory
responses, the error was harmless.

An award of attorneys’ fees

and costs incurred in bringing the Sanctions Motion was still
warranted because the original interrogatory responses were
deficient, and Plaintiff did not receive the supplemental
responses after the Sanctions Motion was filed.

See Rule

37(a)(5)(A); see also Response to 8/16/17 Order Appeal, Decl. of
Joshua D. Stadtler at ¶ 3 (stating that, although the
supplemental responses to interrogatory requests and requests for
admissions are dated July 5, 2017, his office did not receive
them until July 10, 2017, after the filing of the Sanctions
Motion).
Finally, Defendant’s argument that the 8/16/17 Order
shows favoritism to Plaintiff because it is inconsistent with the
6/1/17 Order is also rejected.

In both orders, the magistrate

judge found that defense counsel’s actions regarding the

13

scheduling of the depositions at issue were not justifiable.
Further, Plaintiff moved for a protective order prior to the
scheduled May 24, 2017 deposition of Mr. McGrath, whereas
Defendant did not do so prior to the scheduled depositions on
June 8 and 9, 2017.

The analysis in the two orders is

consistent, and sanctions against Defendant were warranted in
both instances.
Defendant has failed to show that the 8/16/17 Order was
clearly erroneous or contrary to law.

Defendant’s 8/16/17 Order

Appeal is therefore denied and the magistrate judge’s 8/16/17
Order is affirmed.9

If there are still any outstanding discovery

requests that the 8/16/17 Order required Defendant to respond to,
Defendant must respond to those requests by November 16, 2017.
Further, this Court orders Defendant to pay the sanctions set
forth in the 8/16/17 Order to Plaintiff, through Plaintiff’s
counsel, by December 1, 2017.
III. 8/17/17 Order Appeal
Plaintiff argues that the 8/17/17 Order “turned solely
on the question of whether [it] exercised reasonable diligence in
seeking leave to amend,” and Plaintiff “could not have reasonably
met the March 24, 2017 deadline for the parties to amend their
pleadings.”

[Mem. in Supp. of 8/17/17 Order Appeal at 9.]

9

The

Any argument raised in the 8/16/17 Order Appeal that is
not specifically addressed in this Order is also rejected.
14

magistrate judge found that Plaintiff was “aware of the facts and
theories relevant to its fraud claim since at least October
2016.”

[8/17/17 Order at 3.]

Plaintiff contends that this was

clearly erroneous because neither Defendant’s Answer nor the
Summary Judgment Opposition were sufficient to make Plaintiff
“aware of the facts and theories necessary to plead a fraud claim
under Fed. R. Civ. P. 9(b)’s particularity pleading standard or a
prayer for punitive damages under the wanton, oppressive,
malicious, or willful standard.”
Appeal at 11-12.]

[Mem. in Supp. of 8/17/17 Order

The magistrate judge’s finding that Plaintiff

knew about the basis for a potential fraud claim before the postsummary judgment discovery was correct.

Even if it is true that

Defendant did not have enough facts until after discovery to
satisfy the Rule 9(b) heightened pleading standard, that would
not render the magistrate judge’s finding that Plaintiff was not
diligent in seeking leave to amend clearly erroneous.
After the 1/31/17 EO Ruling, Plaintiff was aware that
the Motion for Summary Judgment would be denied in its entirety.
At that point, the deadline to amend pleadings was still open.
Plaintiff could have sought to have the stay lifted and the
scheduling order amended because Plaintiff needed additional time
before filing an amended complaint to conduct discovery regarding
the possible fraud claim.

Plaintiff did not do so, perhaps

because it was hoping that this Court’s written order addressing

15

the Motion for Summary Judgment would ultimately be contrary to
the 1/31/17 EO Ruling.

At a minimum, Plaintiff could have moved

to amend the scheduling order immediately after the filing of the
Summary Judgment Order, which was issued only a matter of days
after the deadline to add parties and amend pleadings had passed.
In light of the stay and the issuance of the Summary Judgment
Order, the magistrate judge presumably would have found good
cause to amend the scheduling order and extended the deadline for
Plaintiff to file its amended complaint.

Plaintiff, however, did

not move for an amendment of the scheduling order until it filed
the Motion for Leave to Amend on June 22, 2017.

[Dkt. no. 77.]

Plaintiff had the proposed amended complaint prepared by the
June 6, 2017 settlement conference, and showed it the magistrate
judge and Defendant’s counsel “in the lead up to” the conference.
[Mem. in Supp. of 8/17/17 Order Appeal at 8.]

Thus, Plaintiff

was clearly working on the amended complaint well before June 6,
2017, even though the deadline to amend pleadings had closed.
Plaintiff chose not to move to amend the scheduling order until
June 22, 2017 – almost three months after the deadline to amend
pleadings had passed.

Under the circumstances of this case, the

magistrate judge did not commit clear error when he found that
Plaintiff was not diligent in seeking to amend its Complaint to
add a fraud claim.

Further, the magistrate judge’s denial of

leave to add the proposed fraud claim was not contrary to law.

16

The magistrate judge also found that Plaintiff was not
diligent in pursuing the UCC claim.

As noted by the magistrate

judge, [8/17/17 Order at 5,] Plaintiff was aware of the basis for
its potential UCC claim in October 2016.

In its Summary Judgment

Reply, Plaintiff argued that it should prevail on Count I – its
breach of contract claim – because, under the UCC, the parties
formed a contract and Defendant accepted the materials Plaintiff
delivered.

[Summary Judgment Reply at 6-8.]

Plaintiff also

argued at the hearing on the Motion for Summary Judgment that
this Court should grant summary judgment as to Count I based on
the UCC theory.

[Trans. of 10/31/16 Hrg. on Motion for Summary

Judgment, filed 11/18/16 (dkt. no. 42), at 6.]

Plaintiff’s

argument was not addressed in the Summary Judgment Order because
a UCC claim was not properly pled in the Complaint.

Although

Plaintiff was aware of the basis for its UCC claim in October
2016, it did not seek leave to amend until June 2017.

The

magistrate judge’s finding that Plaintiff was not diligent in
pursuing its UCC was not clearly erroneous.

Further, the

magistrate judge’s denial of leave to add the proposed UCC claim
was not contrary to law.
Finally, as to the proposed changes to “clean up” the
Complaint, the magistrate judge found that Plaintiff was not
diligent in bring those amendments because Plaintiff failed to
identify either the facts it learned in discovery that supported

17

the amendments or the reasons why it was unable to propose the
amendments prior to the deadline to amend pleadings.
Order at 5.]

[8/17/17

Plaintiff has failed to present any reason why this

findings were clearly erroneous.

The magistrate judge’s denial

of leave to make the proposed “clean up” amendments was not
contrary to law.
Because Plaintiff has not set forth any ground that
warrants reversal of the 8/17/17 Order, Plaintiff’s appeal is
denied and the 8/17/17 order is affirmed.10
CONCLUSION
On the basis of the foregoing, the following are HEREBY
DENIED: Defendant’s June 9, 2017 appeal of the magistrate judge’s
Order Granting Plaintiff’s Motion for Protective Order and
Sanctions for Discovery Abuse; Defendant’s August 25, 2017 appeal
of the magistrate judge’s Memorandum Opinion and Order on
Discovery Issues; and Plaintiff’s August 31, 2017 appeal of the
magistrate judge’s Order Denying Plaintiff’s Motion for Leave to
Amend.

The magistrate judge’s orders are AFFIRMED, and Defendant

is ORDERED to comply with the June 1, 2017 order and the
August 16, 2017 order by the deadlines set forth in the instant
Order.
IT IS SO ORDERED.

10

Any argument raised in the 8/17/17 Order Appeal that is
not specifically addressed in this Order is also rejected.
18

DATED AT HONOLULU, HAWAII, October 17, 2017.

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

MARINE LUMBER CO. VS. PRECISION MOVING & STORAGE, INC.; CIVIL 1600365 LEK-RLP; ORDER DENYING APPEALS OF THE MAGISTRATE JUDGE’S
ORDERS FILED ON JUNE 1, 2017, AUGUST 16, 2017, AND AUGUST 17,
2017

19