McElroy v. McBarnet

Filing 157

ORDER DENYING PLAINTIFF'S MOTION FOR CLARIFICATION re 155 Motion Clarification. Signed by JUDGE LESLIE E. KOBAYASHI on 09/29/2017. Plaintiff Ronald Hale McElroy's, motion for clarification of this Co urt's August 21, 2017 order, which Plaintiff filed on September 19, 2017, is HEREBY DENIED. In light of the filing of the motion for clarification, this Court will extend Plaintiff's deadline to file his second amended complaint to October 16, 2017. If Plaintiff fails to file his second amended complaint by that date, this Court will dismiss Counts I and II of the Amended Complaint with prejudice and will direct the Clerk's Office to enter final judgment and close the case. (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). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RONALD HALE MCELROY,

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Plaintiff,
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vs.
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LOGAN MCBARNET; ET AL.,
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Defendants.
_____________________________ )

CIVIL 17-00009 LEK-RLP

ORDER DENYING PLAINTIFF’S MOTION FOR CLARIFICATION
On August 21, 2017, this Court issued the “Order
Granting in Part and Denying in Part Defendants’ Motion to
Dismiss Plaintiff’s Amended Complaint [Dkt 16] Filed February 1,
2017” (“8/21/17 Order”).

[Dkt. no. 154.]

Before the Court is

Plaintiff Ronald Hale McElroy’s (“Plaintiff”) motion for
clarification of the 8/21/17 Order (“Motion”), filed
September 19, 2017.

[Dkt. no. 155.]

The Court has considered

the Motion as a non-hearing matter 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”).

Plaintiff’s Motion

is hereby denied for the reasons set forth below.
DISCUSSION
In the 8/21/17 Order, this Court dismissed Count II of
Plaintiff’s First Amended Complaint (“Amended Complaint”), [filed
2/1/17 (dkt. no. 16),] for lack of subject matter jurisdiction
because Plaintiff failed to establish standing to bring the

claim.

[8/21/17 Order at 11-12.]

This Court dismissed Count I

for failure to state a claim upon which relief an be granted
because “it is possible that Plaintiff has not sued the proper
party in this matter.”

[Id. at 13-14.]

The dismissal of

Counts I and II was without prejudice.1

[Id. at 12, 14.]

This

Court granted Plaintiff leave to file a second amended complaint
by September 19, 2017.

[Id. at 15.]

In the Motion, Plaintiff asserts that the State of
Hawai`i – or one of its agencies, such as the Department of
Transportation – (“the State”) is the proper defendant for the
claim alleged in Count I of the Amended Complaint.

However, if

Plaintiff adds the State as a defendant, diversity jurisdiction
would no longer exist.

Plaintiff therefore “intends to file a

Complaint in the Second Circuit Court of the State of Hawaii,
which will include the State of Hawaii, Department of
Transportation as a Defendant, and allege sufficient allegations
establishing his standing to assert the claim set forth in
Count II.”

[Mem. in Supp. of Motion at 4.]

The Motion seeks a

ruling that the 8/21/17 Order “will not prejudice McElroy’s right
to file a Complaint in the Second Circuit Court; [and] that
dismissals of claims in the Amended Complaint with prejudice
shall have no res judicata or collateral estoppel effect on

1

This Court also dismissed Count III with prejudice,
[8/21/17 Order at 14-15,] but the Motion does not seek
clarification of this Court’s rulings as to Count III.
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McElroy’s claims in the Second Circuit Court.”

[Id. at 8.]

Plaintiff’s request for clarification of the 8/21/17
Order is puzzling and denied because the 8/21/17 Order contains
sufficiently detailed analysis of Plaintiff’s Amended Complaint.
As to the request for an advisory ruling, this Court cannot
predict in a vacuum what may happen in the state court case which
Plaintiff apparently intends to file.

Moreover, it would not

usurp the state court’s authority by deciding whether or not the
rulings in this case have any res judicata or collateral estoppel
effect in a state court case.
CONCLUSION
On the basis of the foregoing, Plaintiff Ronald Hale
McElroy’s, motion for clarification of this Court’s August 21,
2017 order, which Plaintiff filed on September 19, 2017, is
HEREBY DENIED.

In light of the filing of the motion for

clarification, this Court will extend Plaintiff’s deadline to
file his second amended complaint to October 16, 2017.

If

Plaintiff fails to file his second amended complaint by that
date, this Court will dismiss Counts I and II of the Amended
Complaint with prejudice and will direct the Clerk’s Office to
enter final judgment and close the case.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, September 29, 2017.

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

RONALD HALE MCELROY VS. LOGAN MCBARNET, ET AL; CIVIL 17-00009
LEK-RLP; ORDER DENYING PLAINTIFF’S MOTION FOR CLARIFICATION

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