Brown et al v. Porter McGuire Kiakona & Chow, LLP et al
ORDER Striking Fourth Amended Class Action Complaint and Dismissing With Prejudice Claims Dismissed Without Prejudice In The July 5, 2018 "Order Granting Defendant Ekimoto & Morris, LLL's Motion To Dismiss Third Amended Class Action Complaint Filed May 8, 2018" re 186 182 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/21/2018. (cib, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
EKIMOTO & MORRIS, LLLC, a
Hawai`i limited liability law )
company, as individual
entities; ASSOCIATION OF
APARTMENT OWNERS OF KO OLINA )
KAI GOLF ESTATES AND VILLAS, )
a Hawai`i corporation as
individual entities and on
behalf of all others
similarly situated; DOE
CRAIG CONNELLY and KRISTINE
CONNELLY, as individuals and
on behalf of all others
CIVIL 16-00448 LEK-KSC
ORDER STRIKING FOURTH AMENDED CLASS ACTION COMPLAINT
AND DISMISSING WITH PREJUDICE CLAIMS DISMISSED
WITHOUT PREJUDICE IN THE JULY 5, 2018 “ORDER GRANTING
DEFENDANT EKIMOTO & MORRIS, LLLC’S MOTION TO DISMISS
THIRD AMENDED CLASS ACTION COMPLAINT FILED MAY 18, 2018”
On May 18, 2018, Plaintiffs Craig Connelly and
Kristine Connelly, as individuals and on behalf of all others
similarly situated (“Plaintiffs” or “the Connellys”), filed their
Third Amended Class Action Complaint (“Third Amended Complaint”).
[Dkt. no. 162.]
On July 5, 2018, this Court issued its Order
Granting Defendant Ekimoto & Morris, LLLC’s Motion to Dismiss
Third Amended Class Action Complaint Filed May 18, 2018 (“7/5/18
[Dkt. no. 182.1]
In the 7/5/18 Order, this Court
dismissed: 1) the Connellys’ Fair Debt Collections Practices Act
(“FDCPA”) claim against Defendants Ekimoto & Morris, LLLC (“E&M”)
and Association of Apartment Owners of Ko Olina Kai Golf Estates
and Villas (“Ko Olina AOAO”); 7/5/18 Order, 2018 WL 3312957, at
*2-3; and 2) the Connellys’ claim for declaratory judgment
against E&M, id. at *4.
The dismissals were without prejudice,
and the Connellys were given until July 19, 2018 to file a fourth
On July 19, 2018, in response to the 7/5/18 Order, the
Connellys filed their Fourth Amended Class Action Complaint
(“Fourth Amended Complaint”).
[Dkt. no. 186.]
added eleven new persons as plaintiffs and eight new association
[Fourth Amended Complaint at ¶¶ 9-16, 20-28.]
Nothing in the 7/5/18 Order granted the Connellys leave to add
Further, the magistrate judge previously denied the
Connellys leave to add “any new additional plaintiff class
representatives or additional homeowner association defendants as
defendant class representative.”
[Order Granting in Part &
Denying in Part Pltfs. Craig Connelly & Kristine Connelly’s
Motion to Amend Second Amended Complaint [Dkt. 145], filed
5/31/18 (dkt. no. 169) (“5/31/18 Order”), at ¶ 2.]
in the 5/31/18 Order and the order denying the Connellys’ motion
The 7/5/18 Order is also available at 2018 WL 3312957.
for reconsideration of that ruling are currently on appeal before
[Notice of Pltfs.’ Statement of Appeal to the
District Court from the Magistrate Judge’s Orders [ECF Nos. 169,
175] Granting in Part & Denying in Part Pltfs.’ Motion to Amend
the Complaint & Denying Reconsideration (“Appeal”), filed 7/3/18
(dkt. no. 180).]
On July 24, 2018, this Court issued an entering order
(“7/24/18 EO”) directing the Connellys to file a statement
addressing why the Court should not dismiss the Fourth Amended
Complaint without prejudice.
[Dkt. no. 187.]
On August 7, 2018,
the Connellys filed their response to the 7/24/18 EO (“Connelly
[Dkt. no. 196.]
On August 14, 2018, E&M filed its
response to the 7/24/18 EO (“E&M Response”), and the Ko Olina
AOAO filed a joinder in the E&M Response.
[Dkt. nos. 197, 198.]
Striking the Fourth Amended Complaint
The Connelly Response contends that the addition of new
plaintiffs to serve as class representatives for the FDCPA claim
and the addition of a new association defendant to correspond
with the new plaintiffs were acceptable amendments in response to
the 7/5/18 Order.
The Connellys’ argument is belied by the
language of the 7/5/18 Order, which specifically limits the
amendment of the FDCPA claim to the Connellys, referred to as
“Plaintiffs” in the 7/5/18 Order:
If Plaintiffs choose to amend their FDCPA claims,
their fourth amended complaint must address the
following: 1) whether the Unit was ever
Plaintiffs’ primary residence; 2) if so, how long
was the Unit their primary residence; 3) what
other purposes, if any, did Plaintiffs use the
Unit for before they lost the Unit in the
nonjudicial foreclosure proceedings at issue in
this case; and 4) how long did Plaintiffs use the
Unit for each of the other purposes referred to in
2018 WL 3312957, at *3 (emphasis added).
As stated in the
7/24/18 EO, nothing in the 7/5/18 Order granted the Connellys
leave to add new parties.
[7/24/18 EO at 1.]
The Connelly Response also argues the addition of new
plaintiffs and defendants was appropriate under Fed. R. Civ.
However, this is the very argument the magistrate judge
rejected in the 5/31/18 Order and which is currently pending
before this Court in the Appeal.
Unless and until this Court
grants the Connellys’ Appeal and reverses the magistrate judge’s
ruling in the 5/31/18 Order denying leave to amend, the Connellys
do not have leave to add any new parties.
Because the Fourth
Amended Complaint added new parties in violation of the 7/5/18
Order and without leave to amend, the Fourth Amended Complaint is
The Connellys’ Third Amended Complaint remains the
operative pleading in this case.
Dismissal with Prejudice
The Connellys concede that “they cannot amend their
allegations consistent with the Court’s [7/5/18] Order to
represent Class members with regard to the FDCPA claim.”
[Connelly Response at 2.]
Based on this concession, “‘it is
clear, upon de novo review, that the [FDCPA claim] could not be
saved by any amendment.’”
See 7/5/18 Order, 2018 WL 3312957, at
*3 (quoting Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty.,
708 F.3d 1109, 1118 (9th Cir. 2013)).
The Connellys’ FDCPA
(Count III of the Third Amended Complaint) is therefore DISMISSED
Because the FDCPA claim was the only substantive
claim against E&M, the Connellys’ claim for declaratory relief
(Count I of the Third Amended Complaint) is also DISMISSED WITH
PREJUDICE as to E&M.
The dismissal of these claims with prejudice does not
preclude a new plaintiff from alleging a FDCPA claim against E&M,
and a corresponding claim for declaratory relief against E&M, if
the Connellys are granted leave to add a new plaintiff.
the Connellys will be allowed to file a fifth amended complaint
will be addressed when this Court rules on the Appeal.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 21, 2018.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
CRAIG CONNELLY, ET AL. VS. EKIMOTO & MORRIS, LLLC, ET AL; CV 1600448 LEK-KSC; ORDER STRIKING FOURTH AMENDED CLASS ACTION
COMPLAINT AND DISMISSING WITH PREJUDICE CLAIMS DISMISSED WITHOUT
PREJUDICE IN THE JULY 5, 2018 “ORDER GRANTING DEFENDANT EKIMOTO &
MORRIS, LLLC’S MOTION TO DISMISS THIRD AMENDED CLASS ACTION
COMPLAINT FILED MAY 18, 2018”
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