Lake v. Ohana Military Communities, LLC

Filing 81

ORDER STRIKING PLAINTIFFS' TRESPASS CLAIM. Excerpt of order:Count X of Plaintiffs' First Amended Complaint, i.e. Plaintiffs' trespass claim, is HEREBY STRICKEN. The 10/12/17 Order dismissi ng Count X of Plaintiff's original Complaint without prejudice still stands. Signed by JUDGE LESLIE E. KOBAYASHI on 12/20/2017. (afc) 10/12/2017 Order: ECF 78 : "ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS 9; MOTION FOR RECONSIDERATION OF ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS" 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). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KENNETH LAKE, CRYSTAL LAKE,
HAROLD BEAN, MELINDA BEAN,
KYLE PAHONA, ESTEL PAHONA,
TIMOTHY MOSELEY, ASHLEY
MOSELEY, RYAN WILSON, and
HEATHER WILSON

)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
OHANA MILITARY COMMUNITIES,
LLC, FOREST CITY RESIDENTIAL )
)
MANAGEMENT, INC.; and DOE
)
DEFENDANTS 1-10,
)
)
Defendants.
_____________________________ )

CIVIL 16-00555 LEK-KJM

ORDER STRIKING PLAINTIFFS’ TRESPASS CLAIM
On September 14, 2016, Plaintiffs Kenneth Lake,
Crystal Lake, Harold Bean, Melinda Bean, Kyle Pahona, Estel
Pahona, Timothy Moseley, Ashley Moseley, Ryan Wilson, and
Heather Wilson (“Plaintiffs”) filed their Complaint in state
court.

Defendants Ohana Military Communities, LLC (“Ohana”) and

Forest City Residential Management, LLC (“Forest City” and
collectively, “Defendants”) filed their Notice of Removal on
October 13, 2016.

[Dkt. no. 1.]

On August 1, 2017, the Order

Granting in Part and Denying in Part Defendants’ Motion to
Dismiss (“8/1/17 Order”) was issued.

[Dkt. no. 63.1]

The 8/1/17

Order dismissed Plaintiffs’ unfair and deceptive acts or
1

The 8/1/17 Order is also available at 2017 WL 4563079.

practices claim (Count IV), unfair methods of competition claim
(Count IX), and trespass claim (Count X) with prejudice, and
dismissed all of the remaining claims without prejudice.
Plaintiffs were ordered to file an amended complaint by
September 6, 2017.

2017 WL 4563079, at *12.

later extended to September 20, 2017.

The deadline was

[Dkt. no. 66.]

Plaintiffs filed a motion for reconsideration of the
8/1/17 Order (“Motion for Reconsideration”), and the motion was
granted in part and denied in part in an order filed on
October 12, 2017 (“10/12/17 Order”).

[Dkt. nos. 64 (Motion for

Reconsideration), 78 (10/12/17 Order).2]

Plaintiffs’ Motion for

Reconsideration was granted insofar as the portion of the 8/1/17
Order dismissing Plaintiffs’ trespass claim with prejudice was
withdrawn, and Plaintiffs were allowed to file a motion seeking
leave to file an amended trespass claim (“Motion for Leave”).
Plaintiffs were given until October 27, 2017 to file their Motion
for Leave.

10/12/17 Order, 2017 WL 4560123, at *3; see also EO:

Court Order Ruling on Pltfs.’ Motion for Reconsideration of Order
Granting in Part and Denying in Part Defs.’ Motion to Dismiss,
filed 9/18/17 (dkt. no. 74) (“9/18/17 EO Ruling”), at 1 (“The
Motion for Reconsideration is GRANTED insofar as: Plaintiffs’
trespass claim is dismissed WITHOUT PREJUDICE; and Plaintiffs may

2

The 10/12/17 Order is also available at 2017 WL 4560123.
2

file a motion seeking leave to file an amended trespass claim.”
(emphases in original)).
Without filing a Motion for Leave, Plaintiffs included
a trespass claim in their First Amended Complaint.
9/20/17 (dkt. no. 75), at ¶¶ 147-55.]

[Filed

Plaintiffs contend that it

was not necessary for them to file a Motion for Leave because,
according to the 9/18/17 EO Ruling: “a) the [trespass] claim was
dismissed without prejudice; b) and the deadline to file the
[First Amended Complaint] was open.”

[Opp. to Defs.’ Motion to

Dismiss First Amended Complaint, filed 12/13/17 (dkt. no. 79), at
4.]
Plaintiffs’ inclusion of the trespass claim in the
First Amended Complaint violated both the 9/18/17 EO Ruling and
the 10/12/17 Order.

The 9/18/17 EO Ruling stated: “The ruling on

the Motion for Reconsideration does not affect Plaintiffs’
deadline to file their amended complaint, which remains
September 20, 2017.

If the magistrate judge allows Plaintiffs to

file an amended trespass claim, the magistrate judge will give
Plaintiffs a deadline to file a second amended complaint.”
[9/18/17 EO Ruling at 1 (emphases in original).]

The 10/12/17

Order stated: “Plaintiffs must file their Motion for Leave by
October 27, 2017 . . . .

If Plaintiffs fail to file their Motion

for Leave by October 27, 2017, this Court will dismiss their

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trespass claim with prejudice.”

10/12/17 Order, 2017 WL 4560123,

at *2 (emphases in original).
Because of Plaintiffs’ violation of the 9/18/17 EO
Ruling and the 10/12/17 Order, this Court has the discretion to
dismiss Plaintiffs’ trespass claim with prejudice.

See Yourish

v. Cal. Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) (holding
that the plaintiff’s failure to comply with a minute order
setting forth the deadline to file the amended complaint gave the
district court the discretion to dismiss the case under Fed. R.
Civ. P. 41(b)).3

Before doing so, however, this Court must weigh

the five dismissal factors set forth in Dreith v. Nu Image, Inc.,
648 F.3d 779, 788 (9th Cir. 2011).4

See, e.g., Webb v. U.S. Soc.

Sec. Admin., CIVIL 16-00233 LEK-RLP, 2017 WL 380906, at *1 (D.
Hawai`i Jan. 25, 2017).

The public interest in the expeditious

resolution of this litigation and this Court’s interest in

3

Fed. R. Civ. P. 41(b) states, in pertinent part: “If 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.”
4

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 quotation marks omitted).
4

managing the docket outweigh the policy favoring disposition of
cases on the merits.

In addition, Defendants will not be

prejudiced by the dismissal of Plaintiffs’ trespass claim.
However, the fact that there is a less drastic alternative
available weighs strongly against dismissal with prejudice.
Although it is a close question, dismissal with
prejudice is not appropriate at this time.

Instead, Count X of

Plaintiffs’ First Amended Complaint, i.e. Plaintiffs’ trespass
claim, is HEREBY STRICKEN.

The 10/12/17 Order dismissing Count X

of Plaintiff’s original Complaint without prejudice still stands.
Plaintiffs may file a motion seeking leave to file a second
amended complaint to include their trespass claim.

However,

because the deadline to add parties and amend pleadings expired
on October 13, 2017, [Rule 16 Scheduling Order, 4/14/17 (dkt.
no. 56), at ¶ 5,] Plaintiffs’ motion must meet the standards of
both Fed. R. Civ. P. 15(a)(2) and 16(b)(4).

In particular,

Plaintiffs would have to establish good cause for their failure
to file a Motion for Leave by the October 27, 2017 deadline in
the 10/12/17 Order.

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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, December 20, 2017.

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

KENNETH LAKE, ET AL. V. OHANA MILITARY CMTYS., ET AL.; CIVIL 1600555 LEK-KJM; ORDER STRIKING PLAINTIFFS’ TRESPASS CLAIM

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