Santiago v. County of Hawaii - Hawaii Police Department et al

Filing 114

ORDER DENYING PLAINTIFF'S MOTION TO EXTEND DEADLINES TO JOIN ADDITIONAL PARTIES AND AMEND PLEADINGS AND EXTEND DEADLINES FOR DISCOVERY AND DISPOSITIVE MOTIONS re 110 - Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 11/21/2017. (em t, )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). Jonathan Kimo Santiago served by first class mail to the address of record on November 21, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
STATE OF HAWAII; COUNTY OF
HAWAII - HAWAII POLICE
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DEPARTMENT; JOHN DOES 1-100; )
JANE DOES 1-100; DOE
)
)
GOVERNMENTAL AGENCIES 1-10;
BRYSON MIYOSE; KIMO VEINCENT, )
)
)
Defendants.
)
_____________________________ )
JONATHAN KIMO SANTIAGO,

CIVIL NO. 16-00583 DKW-KSC
ORDER DENYING PLAINTIFF’S
MOTION TO EXTEND DEADLINES TO
JOIN ADDITIONAL PARTIES AND
AMEND PLEADINGS AND EXTEND
DEADLINES FOR DISCOVERY AND
DISPOSITIVE MOTIONS

ORDER DENYING PLAINTIFF’S MOTION TO EXTEND DEADLINES
TO JOIN ADDITIONAL PARTIES AND AMEND PLEADINGS AND
EXTEND DEADLINES FOR DISCOVERY AND DISPOSITIVE MOTIONS
Before the Court is Plaintiff Jonathan Kimo Santiago’s
(“Plaintiff”) Motion to Extend Deadlines to Join Additional
Parties and Amend Pleadings and Extend Deadlines for Discovery
and Dispositive Motions, filed November 2, 2017.

The Court finds

this matter suitable for disposition without a hearing pursuant
to Rule 7.2(d) of the Local Rule of Practice for the U.S.
District Court for the District of Hawaii (“Local Rules”).

After

considering the parties’ submissions and the applicable law, the
Court HEREBY DENIES Plaintiff’s Motion for the reasons set forth
below.
BACKGROUND
On November 29, 2016, this Court issued a Rule 16
Scheduling Order establishing the following pertinent deadlines:

•

Add parties and amend pleadings - April 28, 2017

•

Dispositive motions - June 28, 2017

•

Expert disclosures - May 29, 2017 (Plaintiff);
June 28, 2017 (Defendants)

•

Discovery - September 29, 2017

•

Trial - November 27, 2017

Doc. No. 13.
On May 23, 2017, U.S. District Judge Derrick Watson
approved in part a stipulation submitted by the parties and
extended the dispositive motions and expert disclosure deadlines
until July 28, 2017.1
On June 16, 2017, John Marshall appeared on behalf of
Plaintiff.
2017.

Mr. Marshall moved to withdraw as counsel on July 22,

On August 4, 2017, the Court orally granted his motion.
On July 26, 2017, Defendants filed a motion for summary

judgment.

The motion is awaiting disposition.
On October 13, 2017, trial was continued from November

27, 2017 to February 12, 2018 due to a scheduling conflict.
No. 108.

All deadlines in the Amended Rule 16 Scheduling Order,

with the exception of trial-related deadlines, were closed,
having previously expired.

Doc. No. 109.

The present Motion followed.

1

Doc.

The parties sought a lengthier extension of time.
2

DISCUSSION
Plaintiff requests a 90-day extension2 of the deadlines
to 1) add parties and amend pleadings; 2) file dispositive
motions; 3) produce expert disclosures; and 4) conduct discovery.
Plaintiff cites the following circumstances in support of his
Motion:

1) Defendants Bryson Miyose and Kimo Veincent and

Officer Wyatt Kaili-Leong could not be deposed prior to the
expiration of the discovery deadline; 2) Plaintiff was unaware of
the identities and roles of the other officers present during his
November 1, 2014 assault, and Mr. Marshall never followed up on
filing an amended pleading before his withdrawal; 3) Defendants
have withheld critical discovery; and 4) Plaintiff was unable to
address Defendants’ objections to his discovery requests due to
Mr. Marshall’s withdrawal and Defendants’ motion for summary
judgment.
Federal Rule of Civil Procedure (“FRCP”) 16(b)(4)
authorizes the modification of a scheduling order “for good cause
and with the judge’s consent.”

Fed. R. Civ. P. 16(b)(4).

The

good cause inquiry focuses on the diligence of the party seeking
to modify the scheduling order; if the party seeking the

2

It is unclear if the 90 days run from the filing of the
Motion. There is a discrepancy between this request and the
specific extensions requested by Plaintiff. For example,
Plaintiff asks the Court to continue the discovery deadline until
January 30, 2018, while he seeks an extension of the add
parties/amend pleadings deadline until November 17, 2017.
3

modification was not diligent, the motion should be denied.
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.
2002); Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir.
2007).

“The pretrial schedule may be modified ‘if it cannot

reasonably be met despite the diligence of the party seeking the
extension.’”

Zivkovic, 302 F.3d at 1087 (quoting Johnson v.

Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).
Prejudice to the non-moving party may serve as an additional
reason to deny the motion, but the lack of prejudice to the nonmoving party does not justify granting the motion if the moving
party was not diligent.

See Johnson, 975 F.2d at 609.

The

district court has “broad discretion in supervising the pretrial
phase of litigation, and its decisions regarding the preclusive
effect of a pretrial order . . . will not be disturbed unless
they evidence a clear abuse of discretion.”

C.F. ex rel. Farnan

v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir.
2011) (quoting Johnson, 975 F.2d at 607) (quotations omitted).
Here, Plaintiff has not satisfied FRCP 16(b)’s good
cause standard; that is, he has not demonstrated that the
deadlines set forth in the scheduling order could not reasonably
be met despite his diligence.

First, with respect to Veincent,

Miyose, and Kaili-Leong’s depositions, Plaintiff’s efforts were
deficient.

He was aware of the September 29, 2017 discovery

deadline since November 29, 2016.

4

Plaintiff claims that on June

29, 2017, Mr. Marshall requested deposition dates and that the
officers were available on August 2 and 3, 2017.

Plaintiff has

not identified any efforts undertaken since then to depose the
officers.

Instead, he conclusorily argues that fact discovery

must be extended until January 30, 2018 to provide him with
sufficient time to conduct depositions.

Mr. Marshall’s single

effort to schedule depositions evidences a lack of diligence.3
Second, Plaintiff represents that he only became aware
of Officers Kaili-Leong and Cala Arnold’s identities and
involvement in his assault through discovery.

Defendants submit

that Plaintiff was aware of Officer Kaili-Leong’s role by
November 28, 2016, and that all relevant police reports including Officers Kaili-Leong and Arnold’s reports - were again
provided to Plaintiff in January 2017.

Plaintiff therefore had

the requisite information to assert claims against Officers
Kaili-Leong and Arnold well in advance of the April 28, 2017
deadline to add parties and amend the pleadings.

Plaintiff

points to his pro se status as an excuse for failing to comply
with the deadline, but pro se parties, like parties represented
by counsel, are expected to comply with all applicable rules and
deadlines.

Local Rule 83.13 (“Pro se litigants shall abide by

3

It does not appear that Plaintiff personally endeavored
to depose the officers prior to Mr. Marshall’s appearance or
after his withdrawal. If the depositions are as critical as
Plaintiff now claims, he had ample time to depose the officers
prior to the discovery cut off.
5

all local, federal, and other applicable rules and/or
statutes.”).

Pro se parties must also exercise diligence.

The mere fact that Mr. Marshall appeared on Plaintiff’s
behalf after the expiration of the add parties/amend pleadings
deadline does not except from the diligence inquiry the time that
lapsed between the discovery of Officer Kaili-Leong and Arnold’s
identities and Mr. Marshall’s appearance, a period of at least
five months.

Further undermining Plaintiff’s assertion of

diligence is his admission that Mr. Marshall drafted an amended
pleading that was submitted to defense counsel for consideration
on July 4, 2017, four-and-a-half months ago.

Plaintiff blames

Mr. Marshall for not following through, but Mr. Marshall withdrew
as counsel on August 4, 2017.
Even knowing that a proposed amended pleading existed,
and that no stipulation or motion was presented to the Court,
Plaintiff took no steps to amend his Complaint until November 2,
2017, over six months after the expiration of the deadline, and
three months after Mr. Marshall’s withdrawal.

Putting aside Mr.

Marshall’s purported failure, Plaintiff has not explained his
utter lack of effort to amend his Complaint since becoming aware
of the identities of Officers Kaili-Leong and Arnold in November
2016, at earliest, or in January 2017, at latest.

Because

Plaintiff did not exercise diligence with respect to the add
parties/amend pleadings deadline, or seek to amend the deadline

6

in the months that followed, good cause is lacking.4
Finally, Plaintiff cites Defendants’ withholding of and
objections to discovery as further bases to extend the discovery
deadline.

Notably, Plaintiff did not file any motions to compel

discovery.

Assuming that Defendants failed to respond to

discovery requests and that Plaintiff was unable to obtain
requested third party discovery, Plaintiff could have and should
have filed appropriate motions or requested expedited discovery
assistance.

Plaintiff cannot sit idly by then complain, after

the expiration of the discovery deadline, that Defendants
prevented him from procuring necessary discovery.

Diligence is

not only measured by whether Plaintiff propounded discovery, but
whether Plaintiff took additional steps to obtain the discovery
he now claims to be missing.

The discovery deadline will not be

extended to enable Plaintiff to do what he should have done
between November 29, 2016 and September 29, 2017.
For the reasons articulated above, the Court also
declines to extend the dispositive motions and expert disclosure
deadlines.

Plaintiff has failed to demonstrate good cause for

the extensions.

Moreover, at the parties’ request, Judge Watson

4

Additional considerations support a denial of this
Motion. Notwithstanding the continuance of the trial until
February 12, 2018, allowing amendment of the Complaint at this
late stage in the litigation would delay the proceedings and
impair the Court’s ability to manage its docket. The proposed
amendments would require extensions of other deadlines and a
continuance of trial.
7

already continued in part the expert disclosure and dispositive
motions deadline until July 28, 2017.

In doing so, he clearly

found inappropriate any lengthier extension of those deadlines.
Given the passage of time, the pending and fully briefed motion
for summary judgment, and the upcoming trial, it is reasonable to
expect that he would likewise reject a further extension of those
deadlines.
In sum, Plaintiff has not established good cause to
amend the scheduling order pursuant to FRCP 16(b).

His request

to extend the pretrial deadlines identified above is consequently
DENIED.
CONCLUSION
Based on the foregoing, the Court HEREBY DENIES
Plaintiff’s Motion to Extend Deadlines to Join Additional Parties
and Amend Pleadings and Extend Deadlines for Discovery and
Dispositive Motions, filed November 2, 2017.

The Court

accordingly VACATES the December 6, 2017 hearing.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, November 21, 2017.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

CIVIL NO. 16-00583 DKW-KSC; SANTIAGO V. STATE OF HAWAII, ET AL.; ORDER DENYING
PLAINTIFF’S MOTION TO EXTEND DEADLINES TO JOIN ADDITIONAL PARTIES AND AMEND PLEADINGS
AND EXTEND DEADLINES FOR DISCOVERY AND DISPOSITIVE MOTIONS

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