Christopher Zyda, et al v. Four Seasons Hotels and Resorts, et al
Filing
152
ORDER Granting In Part and Denying In Part Defendants' Motion To Dismiss And For Partial Summary Judgment As To First Claim For Relief (Condominium Property Act) In Class Plaintiffs' Second Amended Class Action Complaint For Damages, Declar atory, and Injunctive Relief Filed April 30, 2018 re 89 118 . Defendants' October 18, 2018 Motion to Dismiss and for Partial Summary Judgment as to First Claim for Relief (Condominium Property Act) in Class Plaintiffs' Second Amended Class Action Complaint for Damages, Declaratory, and Injunctive Relief Filed April 30, 2018, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is DENIED as to Defendants' request to dismiss Count I, and the Motion is GRANTED insofar as s ummary judgment is GRANTED in favor of Defendants as to Meyer's claim in Count I. Further, the Class is HEREBY DECERTIFIED as to Count I. Only Counts III through VIII remain in this case. Signed by JUDGE LESLIE E. KOBAYASHI on 3/7/2019. (cib)
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
CHRISTOPHER ZYDA, ON BEHALF OF
HIMSELF AND ALL OTHERS SIMILARLY
SITUATED,
CIV. NO. 16-00591 LEK-RT
Plaintiffs,
vs.
FOUR SEASONS HOTELS AND RESORTS,
FOUR SEASONS HOLDINGS, INC.,
FOUR SEASONS HUALALAI RESORT,
HUALALAI RESIDENTIAL, LLC, (DBA
HUALALAI REALTY); HUALALAI
INVESTORS, LLC, KAUPULEHU MAKAI
VENTURE, HUALALAI DEVELOPMENT
COMPANY, HUALALAI VILLAS &
HOMES, HUALALAI INVESTORS, LLC,
HUALALAI RENTAL MANAGEMENT, LLC,
DOES 1-100,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT AS TO
FIRST CLAIM FOR RELIEF (CONDOMINIUM PROPERTY ACT) IN
CLASS PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT FOR
DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF FILED APRIL 30, 2018
On October 18, 2018, Defendants Four Seasons Hotels
Ltd., Four Seasons Holdings, Inc., Hualalai Investors, LLC,
Hualalai Residential LLC, and Hualalai Rental Management, LLC
(“Defendants”), filed their Motion to Dismiss and for Partial
Summary Judgment as to First Claim for Relief (Condominium
Property Act) in Class Plaintiffs’ Second Amended Class Action
Complaint for Damages, Declaratory, and Injunctive Relief Filed
April 30, 2018 (“Motion”).
[Dkt. no. 118.]
Plaintiffs
Christopher Zyda (“Zyda”) and Carol Meyer (“Meyer” and
collectively “Plaintiffs”), on behalf of themselves and all
others similarly situated (all collectively “Class”), filed
their memorandum in opposition on November 1, 2018, and
Defendants filed their reply on December 3, 2018.
nos. 125, 131.]
[Dkt.
Intervenors Bradley Chipps, Donna Chipps,
J. Orin Edson, David Keyes, Doreen Keyes, Ann Marie Mahoney,
James R. Mahoney, Kevin Reedy, H. Jon Runstad, Judith Runstad,
Jonathan Seybold, Patricia Seybold, and Julie Wrigley filed a
statement of no opposition to the Motion on November 26, 2018.
[Dkt. no. 127.]
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”).
On February 15, 2019, this
Court issued an entering order ruling on the Motion.
no. 144.]
[Dkt.
The instant Order supersedes that entering order.
For the reasons set forth below, Defendants’ Motion is denied as
to their request to dismiss Count I and granted insofar as
Defendants are granted summary judgment as to Count I.
Further,
in light of this Court’s ruling, the Class is hereby decertified
as to Count I.
2
BACKGROUND
The instant case arises from the fees and charges for
unaccompanied guests that were announced at the Hualalai Resort
(“Resort”) in 2015.
The operative pleading in this case is
Plaintiffs’ Second Amended Class Action Complaint for Damages,
Declaratory, and Injunctive Relief (“Second Amended Complaint”),
filed on April 30, 2018.
[Dkt. no. 89.]
Zyda filed the first
two versions of the complaint in state court, and the state
court certified the Class.
[Notice of Removal of Action
Pursuant to 28 U.S.C. § 1332(d) and 28 U.S.C. § 1453(b) (“Notice
of Removal”), filed 11/1/16 (dkt. no. 1), Decl. of William
Meheula, Exh. 1 (complaint filed on 10/2/15), Exh. 2 (amended
complaint filed on 10/14/16), Exh. 3 (order granting class
certification filed on 10/13/16).]
Defendants removed the case
based on diversity jurisdiction, pursuant to the Class Action
Fairness Act.
[Notice of Removal at ¶ 16.]
The Second Amended Complaint alleges the following
claims: violation of the Condominium Property Act, Haw. Rev.
Stat. Chapter 514B (“Count I”); violation of the Uniform Land
Sales Practices Act, Haw. Rev. Stat. Chapter 484 (“ULSPA” and
“Count II”); unfair methods of competition and unfair or
deceptive acts or practices, in violation of Haw. Rev. Stat.
§ 480-2
(“Count III”); promissory estoppel/detrimental reliance
(“Count IV”); violation of the duty of good faith and fair
3
dealing (“Count V”); negligent misrepresentation (“Count VI”);
estoppel (“Count VII”); unjust enrichment (“Count VIII”);
organized crime, pursuant to Haw. Rev. Stat. Chapter 842
(“Count IX”); and breach of fiduciary and other common law
duties (“Count X”).
Counts II, IX, and X have been dismissed.
[Order granting Defs.’ motion to dismiss, filed 9/27/18 (dkt.
no. 109) (“9/27/18 Order”), at 22.1]
Only Count I is at issue in
the instant Motion.
Meyer purchased a condominium in the Resort on
July 22, 2013.2
[Defs.’ Concise Statement of Facts in Supp. of
Motion, filed 10/18/18 (dkt. no. 119), at ¶ 1; Pltfs.’ Separate
and Concise Statement of Facts in Opp. to Motion, filed 11/26/18
(dkt. no. 129), at ¶ 1 (stating Defs.’ ¶ 1 is not disputed).]
Count I alleges Defendants made “material misstatements of fact
1
The 9/27/18 Order is also available at 2018 WL 4656391.
The 9/27/18 Order granted Defendants’ May 14, 2018 Motion to
Dismiss Organized Crime, Uniform Land Sales Practices Act, and
Breach of Fiduciary Duty Counts in Class Plaintiffs’ Second
Amended Class Action Complaint for Damages, Declaratory, and
Injunctive Relief, Filed April 30, 2018 (“Motion to Dismiss”).
[Dkt. no. 90.] Plaintiffs were granted leave to amend to cure
the defects identified in the 9/27/18 Order, 2018 WL 4656391, at
*8, but Plaintiffs chose not to file a third amended complaint.
2
Zyda does not own a condominium in the Resort and was
dismissed as the Class representative as to Count I. See Order
Denying Defs.’ Motion to Decertify Class Action, filed 3/28/18
(dkt. no. 79) (“3/28/18 Order”), at 26, available at 2018 WL
1528159.
4
and statements made in bad faith on which Plaintiff Meyer relied
when purchasing” her condominium.
¶ 28.]
[Second Amended Complaint at
The primary misrepresentation that Plaintiffs base all
of their claims upon is the alleged promise that the Class
members, their families, and their guests (including renters)
would be able to enjoy the Resort’s facilities without paying
additional fees.
[Id. at ¶ 10.]
Count I seeks the remedies
provided under Chapter 514B, which Plaintiffs emphasize “must be
liberally administered to the end that the aggrieved parties are
put in as good a position as if the other party had fully
performed.”
[Id. at ¶ 29.]
In the instant Motion, Defendants seek dismissal of,
or summary judgment as to, Count I because Meyer’s Chapter 514B
claim is barred by the two-year statute of repose.
DISCUSSION
I.
Request for Dismissal
The Motion seeks both dismissal and summary judgment
as to Count I.
At this stage of the case, the Court concludes
that the issues presented in the Motion should be addressed
under the summary judgment standard, rather than the dismissal
standard.
In addition, this Court has considered materials
beyond the pleadings.
See Khoja v. Orexigen Therapeutics, Inc.,
899 F.3d 988, 998 (9th Cir. 2018)
(“Generally, district courts
may not consider material outside the pleadings when assessing
5
the sufficiency of a complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.” (citation omitted)), cert.
petition docketed, No. 18-1010 (Feb. 4, 2019).
Therefore, the
Motion is denied to the extent it seeks dismissal of Count I.
II.
Haw. Rev. Stat. § 514B-94(b)
The United States Supreme Court has stated:
[A] statute of limitations creates “a time limit
for suing in a civil case, based on the date when
the claim accrued.” Black’s Law Dictionary 1546
(9th ed. 2009) (Black’s). Measured by this
standard, a claim accrues in a personal-injury or
property-damage action “when the injury occurred
or was discovered.” Black’s 1546. . . .
A statute of repose, on the other hand, puts
an outer limit on the right to bring a civil
action. That limit is measured not from the date
on which the claim accrues but instead from the
date of the last culpable act or omission of the
defendant. A statute of repose “bar[s] any suit
that is brought after a specified time since the
defendant acted (such as by designing or
manufacturing a product), even if this period
ends before the plaintiff has suffered a
resulting injury.” Black’s 1546. The statute of
repose limit is “not related to the accrual of
any cause of action; the injury need not have
occurred, much less have been discovered.” 54
C.J.S., Limitations of Actions § 7, p. 24 (2010)
(hereinafter C.J.S.). The repose provision is
therefore equivalent to “a cutoff,” Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501
U.S. 350, 363 (1991), in essence an “absolute
. . . bar” on a defendant’s temporal liability,
C.J.S. § 7, at 24.[3]
3
Lampf has been superseded by statute on other grounds.
See Merck & Co. v. Reynolds, 559 U.S. 633, 646 (2010)
(discussing Lampf and 28 U.S.C. § 1658(b)(1)).
(. . . continued)
6
CTS Corp. v. Waldburger, 573 U.S. 1, 7-8 (2014) (some
alterations in CTS) (some citations omitted).4
This Court has
stated that, “under Hawai`i law, as under federal law, the
primary characteristic of a statute of repose is that it sets an
outer time limit that is an absolute bar to a claim, regardless
of whether the claim has accrued.”
Mamea v. United States,
Civil No. 08-00563 LEK-RLP, 2011 WL 4371712, at *8 (D. Hawai`i
Sept. 16, 2011) (comparing Hays v. City & Cnty. of Honolulu, 81
Hawai`i 391, 393, 917 P.2d 718, 720 (1996); Albano v. Shea Homes
Ltd. P’ship, 634 F.3d 524, 537 (9th Cir. 2011)).
Section 514B-94 states, in relevant part:
(a)
No person may:
(1) Knowingly authorize, direct, or aid in
the publication, advertisement,
distribution, or circulation of any false
statement or representation concerning any
project offered for sale or lease; or
(2) Issue, circulate, publish, or
distribute any advertisement, pamphlet,
prospectus, or letter concerning a project
that contains any false written statement or
is misleading due to the omission of a
material fact.
(b) Every sale made in violation of this section
shall be voidable at the election of the
purchaser; and the person making the sale and
4
CTS has been superseded by statute
In re Dow Corning Corp., 778 F.3d 545, 553
(noting that 2014 N.C. Sess. Laws 2014–44,
interpretation of N.C. Stat. § 1–52(16) in
7
on other grounds. See
n.2 (6th Cir. 2015)
§ 1 rejected the
CTS).
every director, officer, or agent of or for the
seller, if the director, officer, or agent has
personally participated or aided in any way in
making the sale, shall be jointly and severally
liable to the purchaser in an action in any court
of competent jurisdiction upon tender of the
units sold or of the contract made, for the full
amount paid by the purchaser, with interest,
together with all taxable court costs and
reasonable attorneys’ fees; provided that no
action shall be brought for the recovery of the
purchase price after two years from the date of
the sale . . . .
(Emphasis added.)
The Hawai`i appellate courts have not addressed
whether the two-year period in § 514B-94(b) is a statute of
limitations or a statue of repose.
In the absence of
controlling case law from the Hawai`i Supreme Court, this Court
must predict how the supreme court would decide the issue, using
intermediate appellate court decisions, decisions from other
jurisdictions, statutes, treatises, and restatements as
guidance.
See Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422,
427 (9th Cir. 2011).
The Hawai`i Supreme Court has recognized that Haw.
Rev. Stat. § 657-8(a) contains a ten-year statute of repose, as
does Haw. Rev. Stat. § 657-5.
See Ass’n of Apartment Owners of
Newtown Meadows ex rel. its Bd. of Directors v. Venture 15,
Inc., 115 Hawai`i 232, 282, 167 P.3d 225, 275 (2007); Int’l Sav.
& Loan Ass’n, Ltd. v. Wiig, 82 Hawai`i 197, 199, 921 P.2d 117,
119 (1996).
Section 657-8(a) states:
8
No action to recover damages for any injury to
property, real or personal, or for bodily injury
or wrongful death, arising out of any deficiency
or neglect in the planning, design, construction,
supervision and administering of construction,
and observation of construction relating to an
improvement to real property shall be commenced
more than two years after the cause of action has
accrued, but in any event not more than ten years
after the date of completion of the improvement.
(Emphasis added.)
Section 657-5 states, in pertinent part:
Unless an extension is granted, every judgment
and decree of any court of the State shall be
presumed to be paid and discharged at the
expiration of ten years after the judgment or
decree was rendered. No action shall be
commenced after the expiration of ten years from
the date a judgment or decree was rendered or
extended. . . .
(Emphasis added.)
The Hawai`i Intermediate Court of Appeals has
recognized that Haw. Rev. Stat. § 657-7.3 contains a six-year
statute of repose.
Estate of Baba v. Kadooka, No. CAAP-12-
0000420, 2013 WL 5676083, at *3 (Hawai`i Ct. App. Oct. 18,
2013); see also Mamea, 2011 WL 4371712, at *8-9 (stating “this
Court could reasonably conclude that the six-year limitation
period in § 657-7.3 is a statute of repose based on the Hawai`i
Supreme Court’s description in” Yamaguchi v. Queen’s Medical
Center, 65 Haw. 84, 89, 648 P.2d 689, 692-93 (1982)).5
5
In Mamea, this Court stated:
(. . . continued)
9
Section 657-7.3 addresses medical torts and states, in pertinent
part:
No action for injury or death . . . shall be
brought more than two years after the plaintiff
discovers, or through the use of reasonable
diligence should have discovered, the injury, but
in any event not more than six years after the
date of the alleged act or omission causing the
injury or death. This six-year time limitation
shall be tolled for any period during which the
person has failed to disclose any act, error, or
omission upon which the action is based and which
is known to the person.[6]
Although Yamaguchi does not use the term “statute
of repose”, it does state that § 657–7.3
impose[s] a six-year outer limitation on all
suits computed from the date of the alleged
act or omission regardless of whether the
injury caused thereby had or should have
been discovered by that time, which period
would be tolled only by the defendant’s
withholding of information of alleged
negligent conduct known or which should have
been known to him.
65 Haw. at 89, 648 P.2d at 692–93. Yamaguchi
also states that § 657–7.3 “extinguishes a right
of action six years after the date of the
injurious act regardless of whether the right of
action has accrued.” Id. at 92 n.11, 648 P.2d at
694 n.11. The supreme court’s discussion of the
six-year limitation period in § 657–7.3 indicates
that it is a statute of repose.
2011 WL 4371712, at *8 (alteration in Mamea).
6
Statutes of repose are not subject to equitable tolling.
CTS, 573 U.S. at 9. The fact that § 657-7.3 contains statutory
tolling provisions does not preclude a finding that the six-year
period is a statute of repose. Mamea, 2011 WL 4371712, at *9.
10
§ 657-7.3(a) (emphasis added).
The language in § 514B-94(b) – “no action shall be
brought for the recovery of the purchase price after two years
from the date of the sale” – is similar, although not identical,
to the language in the recognized statutes of repose.
Like
§§ 657-5, 657-7.3(a), and 657-8(a), § 514B-94(b) “sets an outer
time limit that is an absolute bar to a claim, regardless of
whether the claim has accrued.”
*8.
See Mamea, 2011 WL 4371712, at
Plaintiffs, however, urge this Court to adopt the
interpretation of § 514B-94(b) that has been adopted by a
Hawai`i circuit court judge and an arbitrator, both of whom
concluded that § 514B-94(b) is a statute of limitations that is
subject to the discovery rule.
In LoPresti, et al. v. Haseko
(Hawaii), Inc., et al., Civ. No. 13-1-195-07 GWBC, a judge in
the State of Hawai`i First Circuit Court orally denied the
defendants’ motion for summary judgment on the plaintiffs’
Chapter 514B claim.
[Mem. in Opp., Decl. of Terrance M. Revere
(“Revere Decl.”), Exh. 5 (trans. of 1/21/15 hrg.) at 10.]
In
his inclinations, the circuit judge stated:
If the court were to apply the 2-year
statute of limitation in section 514B-94
literally, that would result in an undue hardship
upon plaintiffs. It would leave plaintiffs with
only one month for the Loprestis and two months
for the Tylers – Mr. Tyler to, number one,
realize that they may have a right to sue Haseko;
number two, find and hire a lawyer; number three,
have the lawyer conduct their [Haw. R. Civ.
11
P.] 11 investigation and to draft and file the
complaint. That is patently unfair under such
short time limitations.
Under these circumstances, equity must
intervene and apply a discovery rule to enable
plaintiffs to have 2 years after Haseko announces
its intent to change the marina into a lagoon
within which to file an action.
HRS section 514B-10(a) provides that the
remedies provided by chapter 514B shall be
liberally administered. That mandate requires
the court to apply the discovery rule to this
case.
Therefore, the court is inclined
motion for summary judgment as to the
and Mr. Tyler based on the applicable
limitation and the application of the
rule.
[Id. at 6-7.]
to deny the
Loprestis
statute of
discovery
The circuit judge’s ultimate ruling was
consistent with his inclination.
[Id. at 10.]
The arbitrator’s
award in Johnson, et al. v. Kauai Lagoons LLC, et al., DPR
No. 16-0461-A (Dispute Prevention & Resolution, Inc., Hawai`i),
included similar reasoning.
[Revere Decl., Exh. 6 (Partial
Final Award of Arbitrator, dated 10/16/17, in Johnson) at 4-5.]
However, neither LoPresti nor Johnson are binding in this case.
This Court “may look to state trial court decisions as
persuasive authority, but those decisions are not binding on the
federal court.”
See Galima v. Ass’n of Apartment Owners of Palm
Court ex rel. its Bd. of Dirs., CIVIL 16-00023 LEK-KSC, 2017 WL
1240181, at *6 (D. Hawai`i Mar. 30, 2017) (internal quotation
marks, brackets, and some citations omitted) (citing Spinner
12
Corp. v. Princeville Dev. Corp., 849 F.2d 388, 390 (9th Cir.
1988); King v. Order of United Commercial Travelers of America,
333 U.S. 153, 161, 68 S. Ct. 488, 92 L. Ed. 608 (1948)).
Further, “it is a basic ten[e]t of American jurisprudence that
arbitration awards have no precedential value.”
Cal. v. Iipay
Nation of Santa Ysabel, CASE NO. 3:14-cv-02724-AJB-NLS, 2016 WL
10650810, at *12 (S.D. Cal. Dec. 12, 2016) (internal quotation
marks and some citations omitted) (citing Smith v. Kerrville
Bus. Co., 709 F.2d 914, 918 n.2 (5th Cir. 1983); Gonce v.
Veterans Admin., 872 F.2d 995, 998 (Fed. Cir. 1989)), aff’d, 898
F.3d 960 (9th Cir. 2018).
To the extent this Court could
consider LoPresti and Johnson as persuasive authority, this
Court declines to do so because it respectfully disagrees with
the analysis in those cases.
First, LoPresti and Johnson are contrary to the plain
language of § 514B-94(b), which states the limitations period
begins to run “from the date of the sale” of the condominium,
which precludes an interpretation that the period runs from the
date the plaintiff discovers, or should have discovered, her
claim.
See generally Thomas v. Kidani, 126 Hawai`i 125, 132,
267 P.3d 1230, 1237 (2011) (describing Hawaii’s discovery rule).
LoPresti and Johnson each relies on the Hawai`i legislature’s
mandate that the remedies in Chapter 514B “be liberally
administered to the end that the aggrieved party is put in as
13
good a position as if the other party had fully performed.”
Haw. Rev. Stat. § 514B-10(a).
See
However, while § 514B-10(a)
requires that the remedies specified in Chapter 514B be
“liberally administered,” neither that provision nor any case
law interpreting it requires that Chapter 514B be interpreted
liberally to create remedies that are not specified within the
chapter’s provisions.
Cf. DeRosa v. Ass’n of Apartment Owners
of the Golf Villas, 185 F. Supp. 3d 1247, 1253 (D. Hawai`i 2016)
(predicting that the Hawai`i Supreme Court would hold that Haw.
Rev. Stat. §§ 514B-9 and 514B-10 do not create a cause of action
for selective enforcement of a condominium’s governing
documents).
LoPresti also relied upon the harsh effect that
§ 514B-94(b) would have if it was construed as a statute of
repose, particularly because the limitations period is only two
years.
However, a potentially harsh effect exists with any
statute of repose.
“Statutes of repose effect a legislative
judgment that a defendant should ‘be free from liability after
the legislatively determined period of time.’”
CTS, 573 U.S. at
9 (some citations omitted) (quoting C.J.S. § 7, at 24).
The
United States Supreme Court recognized a statute of repose can
expire without “the injury . . . hav[ing] occurred, much less
hav[ing] been discovered.”
quotation marks omitted).
Id. at 8 (citation and internal
Further, in considering whether the
14
short limitation period precludes § 514B-94(b) from being a
statute of repose, this Court must also consider the fact that
the remedy allowed by § 514B-94(b) is the drastic remedy of
rescission.
See, e.g., Wilkins v. Wells Fargo Bank, N.A., Civil
No. 2:15CV566, 2016 WL 6775692, at *6 (E.D. Va. Nov. 15, 2016)
(referring to rescission as a “drastic remedy”); Frey v.
Grumbine’s RV, Civil No. 1:10-CV-1457, 2010 WL 4718750, at *17
(M.D. Pa. Nov. 15, 2010) (same); Times Mirror Magazines, Inc. v.
Field & Stream Licenses Co., 103 F. Supp. 2d 711, 728 (S.D.N.Y.
2000) (same), aff’d, 294 F.3d 383 (2d Cir. 2002).
Finally, this Court notes that a plaintiff’s inability
to obtain remedies under Chapter 514B because of the statute of
repose does not prevent her from obtaining contractual remedies,
common law remedies, or remedies provided by other statutes.
See, e.g., Haw. Rev. Stat. § 514B-87(e) (“This section [– titled
‘Rescission after sales contract becomes binding’ –] shall not
preclude a purchaser from exercising any rescission rights
pursuant to a contract for the sale of a unit or any applicable
common law remedies.”).
Even if Meyer’s Chapter 514B claim is
barred by the statute of repose, her equitable claims, tort
claims, and other statutory claims remain in this case.
For the foregoing reasons, this Court predicts that
the Hawai`i Supreme Court would hold that the two-year period in
§ 514B-94(b) is a statute of repose.
15
Because Meyer failed to
bring her Chapter 514B claim within two years after the date she
purchased her condominium, and because statutes of repose are
not subject to equitable tolling, Meyer’s claim is time-barred.
There are no genuine issues of material fact and Defendants are
entitled to summary judgment as to Meyer’s claim in Count I.
See Fed. R. Civ. P. 56(a).
III. Decertification
Because Meyer is the only Class representative for
Count I, see supra note 2, the Class is now without a
representative for Count I.
The deadline to add parties and
amend pleadings in this case passed on February 1, 2019.
[Rule
16 Scheduling Order, filed 4/11/18 (dkt. no. 84), at ¶ 5.]
The
Rule 16 Scheduling Order “may be modified . . . for good cause,”
see Fed. R. Civ. P. 16(b)(4), but this Court’s ruling on the
instant Motion does not constitute good cause.
The instant case
has been pending in this district court since November 1, 2016,
and adding a new Class representative for Count I at this
advanced stage would unduly delay the resolution of the case.
See Rule 16 Scheduling Order at ¶ 1 (September 4, 2019 trial
date), ¶ 7 (April 3, 2019 dispositive motions deadline).
This
is well-known to Plaintiffs who have long been aware of the
potential timeliness issue regarding Count I.
See 9/27/18
Order, 2018 WL 4656391, at *3-4 (discussing statutes of repose
and the discovery rule with regard to Plaintiffs’ ULSPA claim).
16
In their opposition, Plaintiffs argue the statute of
limitations for their ULSPA claim and the statute of limitations
for their Chapter 514B claim are both subject to the discovery
rule.
[Mem. in opp. to Motion to Dismiss, filed 6/4/18 (dkt.
no. 96), at 6-7.]
This argument shows that, by June 4, 2018,
Plaintiffs took the position that § 514B-94(b) was: 1) a statute
of limitations instead of a statute of repose; and 2) subject to
the discovery rule.
Thus, Plaintiffs knew by that time that
Meyer’s Chapter 514B claim would be timely only if this Court
accepted both of those positions.
Plaintiffs could have moved
for leave to add another Class representative whose Chapter 514B
claim would be timely if this Court interpreted § 514B-94(b) as
a statute of repose.
In June 2018, Plaintiffs’ motion for leave
would not have required a good cause showing; only the liberal
amendment standard would have applied.
See Fed. R. Civ. P.
15(a)(2) (“The court should freely give leave when justice so
requires.”).
Plaintiffs, however, did not seek leave to add
another Class representative as to Count I.
Thus, Plaintiffs will not be allowed to identify a new
Class representative for Count I because good cause does not
exist to amend the Rule 16 Scheduling Order.
Without a Class
representative for Count I, the claim must be decertified.
Cf.
Hoffman v. Blattner Energy, Inc., 315 F.R.D. 324, 333 (C.D. Cal.
2016) (“In a complaint involving multiple claims, at least one
17
named plaintiff must have Article III standing for each asserted
claim.” (citing In re Carrier IQ, Inc., Consumer Privacy Litig.,
78 F. Supp. 3d 1051, 1070 (N.D. Cal. 2015); Newberg on Class
Actions § 2:5 (5th ed.))).
In light of the summary judgment
ruling as to Meyer’s Chapter 514B claim in Count I and the
decertification of Count I, there are no remaining claims in
Count I.
CONCLUSION
On the basis of the foregoing, Defendants’ October 18,
2018 Motion to Dismiss and for Partial Summary Judgment as to
First Claim for Relief (Condominium Property Act) in Class
Plaintiffs’ Second Amended Class Action Complaint for Damages,
Declaratory, and Injunctive Relief Filed April 30, 2018, is
HEREBY GRANTED IN PART AND DENIED IN PART.
The Motion is DENIED
as to Defendants’ request to dismiss Count I, and the Motion is
GRANTED insofar as summary judgment is GRANTED in favor of
Defendants as to Meyer’s claim in Count I.
is HEREBY DECERTIFIED as to Count I.
VIII remain in this case.
IT IS SO ORDERED.
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Further, the Class
Only Counts III through
DATED AT HONOLULU, HAWAI`I, March 7, 2019.
CHRISTOPHER ZYDA, ETC., ET AL. VS. FOUR SEASONS HOTELS AND
RESORTS, ET AL.; CV 16-00591 LEK-RT; ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND FOR PARTIAL
SUMMARY JUDGMENT AS TO FIRST CLAIM FOR RELIEF (CONDOMINIUM
PROPERTY ACT) IN CLASS PLAINTIFFS' SECOND AMENDED CLASS ACTION
COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF FILED
APRIL 30, 2018
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