Davidson v. Paige

Filing 158

ORDER GRANTING IN PART AND DENYING IN PART THE THIRD-PARTY DEFENDANTS' MOTION TO DISMISS AND/OR STRIKE re 123 - Signed by JUDGE LESLIE E. KOBAYASHI on 11/18/2021. For the foregoing reasons, the Third-Party Defend ants' Motion to Dismiss and/or Strike (1) Defendants Melissa Jackson and Richard Shuck's First Amended Third Party Complaint, Filed June 2, 2021 [Dkt. 102 ]; and (2) Defendants Jeremy Slotnick Paige and Vicki Susan S lotnick's Crossclaim Against Third-Party Defendants Hawaii Life Real Estate Services, LLC, Choi International, Inc., Rhonda Lee Hay, and Cynthia Nash, Filed May 18, 2021 [Dkt. 95 ], filed July 16, 2021, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED to the extent that the Amended Shuck Third-Party Complaint is STRICKEN and the Paige Crossclaim is DISMISSED. The Motion is DENIED, insofar as the dismissal of the Paige Crossclaim is WITHOUT PREJUDICE and the striking of the Amended Shuck Third-Party Complaint is WITHOUT PREJUDICE to the Shucks filing their claims against the Third-Party Defendants in a separate action. (eta)

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UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
STEVEN D. DAVIDSON, AS EXECUTOR
OF THE ESTATE OF HOWARD W.
DEMOORE;

CIV. NO. 20-00097 LEK-WRP

Plaintiff,
vs.
JEREMY SLOTNICK PAIGE, VICKI
SUSAN SLOTNICK, KBI, LLC,
MELISSA JACKSON, RICHARD SHUCK,
JOHN DOES 1-20, JANE DOES 1-20,
DOE CORPORATIONS 1-20, DOE
PARTNERSHIPS 1-20, DOE ENTITIES
1-20, RHONDA LEE HAY, CYNTHIA
NASH,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART THE THIRD-PARTY
DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE
On July 16, 2021, Third-Party Defendants Hawaii Life
Real Estate Services, LLC (“Hawaii Life”), Rhonda Lee Hay
(“Hay”), and Cynthia Nash (“Nash” and collectively “the ThirdParty Defendants”) filed their Motion to Dismiss and/or Strike
(1) Defendants Melissa Jackson and Richard Shuck’s First Amended
Third Party Complaint, Filed June 2, 2021 [Dkt. 102]; and
(2) Defendants Jeremy Slotnick Paige and Vicki Susan Slotnick’s
Crossclaim Against Third-Party Defendants Hawaii Life Real
Estate Services, LLC, Choi International, Inc., Rhonda Lee Hay,
and Cynthia Nash, Filed May 18, 2021 [Dkt. 95] (“Motion”).

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[Dkt. no. 123.]

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Defendants/Crossclaimants Jeremy Slotnick Paige

and Vicki Susan Slotnick (“the Paiges”) and Defendants/ThirdParty Plaintiffs Melissa Jackson and Richard Shuck (“the
Shucks”) filed their respective memoranda in opposition on
August 3, 2021 (“Paige Opposition” and “Shuck Opposition”).
[Dkt. nos. 129, 132.]

The Third-Party Defendants filed their

reply on August 10, 2021.

[Dkt. no. 134.]

The Court finds this

matter suitable for disposition without a hearing pursuant to
Rule LR7.1(c) of the Local Rules of Practice for the United
States District Court for the District of Hawaii (“Local
Rules”).

The Third-Party Defendants’ Motion is hereby granted

in part and denied in part for the reasons set forth below.
BACKGROUND
On March 2, 2020, Plaintiff Steven D. Davidson, as
Executor of the Estate of Howard W. DeMoore (“Plaintiff”), filed
his Complaint against the Paiges, the Shucks, and Defendant KB1,
LLC (“KB1”).

[Dkt. no. 1.]

The Complaint alleges that, on

June 29, 2018, Plaintiff, as the seller, and the Paiges, as the
buyers, entered into a “Purchase Contract” for the sale of real
property in Kailua, Hawai`i (the “Property”).

[Id. at ¶ 10.]

Under paragraph M-1 of the Purchase Contract, Plaintiff was to
provide certain documents to the Paiges no later than seven
calendar days after the acceptance date, and the Paiges had
seven calendar days after receipt of the documents to terminate
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the Purchase Contract.

[Id. at ¶ 14.]

acceptance date was on August 9, 2018.

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Plaintiff alleges the
[Id. at ¶ 13.]

On the

same day as the acceptance, the Paiges allegedly acknowledged
receipt of an initial preliminary report (“First Report”)
containing hyperlinks to the documents required under paragraph
M-1 of the Purchase Contract.

[Id. at ¶ 16.]

On August 15,

2018, the title company sent an updated preliminary report
(“Second Report”) to the Paiges.
On August 16, 2018, the Paiges allegedly assigned the
Purchase Contract to KB1 by an amendment to the Purchase
Contract.

As of August 13, 2018, the Shucks and the Paiges were

the managers of KB1.

On August 17, 2018, the Paiges and/or KB1

transferred the initial money deposit to escrow for purposes of
completing the purchase.

The money was allegedly wire-

transferred to the title company from an account owned or
controlled by the Shucks.

On August 21, 2018, the title company

sent a third preliminary report (“Third Report”) to the Paiges,
which allegedly contained no material differences from the First
Report and Second Report.

Plaintiff alleges that, on August 25,

2018, KB1 attempted to terminate the Purchase Contract.
Plaintiff claims the reason for the termination was due to a
disagreement between the Paiges and the Shucks.
23.]

3

[Id. at ¶¶ 18–

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Plaintiff alleges the following claims: (1) breach of
contract against the Paiges and KB1 for untimely notice of
termination regarding the Purchase Contract (“Count I”);
(2) intentional and/or negligent misrepresentation against the
Paiges and KB1 (“Count II”); (3) vicarious liability based on
joint venture against the Paiges and the Shucks for the breaches
of the Purchase Contract and implied covenant of good faith and
fair dealing (“Count III”); (4) vicarious liability based on
agency against the Paiges and the Shucks for the breach of the
Purchase Contract (“Count IV”); (5) alter ego liability against
the Paiges and the Shucks because they are liable for KB1’s
breach of the Purchase Contract (“Count V”); and (6) declaratory
relief against the Paiges, the Shucks, and KB1 (“Count VI”).1
The Shucks and the Paiges filed their respective
answers to the Complaint on April 30, 2020 and May 4, 2020.
[Dkt. nos. 13, 14.]

On May 18, 2021, the Paiges filed their

Crossclaim Against Third-Party Defendants Hawaii Life Real
Estate Services, LLC, Choi International, Inc., Rhonda Lee Hay,

Counts I and II are the only substantive claims alleged in
Plaintiff’s Complaint. Counts III, IV, and V are theories of
liability as to the Paiges and alternative theories of liability
as to the Shucks for Count I. Although Count I is only
explicitly alleged against either the Paiges or KB1, the Court
interprets it as also alleging liability against the Shucks, in
light of Counts III, IV, and V. Count II, however, is only
alleged against the Paiges or KB1, and Counts III, IV, and V do
not allege alternative theories of liability against the Shucks
for Count II.
1

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and Cynthia Nash (“Paige Crossclaim”).

[Dkt. no. 95].

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On

June 2, 2021, the Shucks filed their First Amended Third Party
Complaint Against Hawaii Life Real Estate Services, LLC, Choi
International, Inc., Rhonda Lee Hay, and Cynthia Nash (“Amended
Shuck Third-Party Complaint”).

[Dkt. no. 102.]

The Shucks allege that, in November 2017, “Plaintiff
entered into an Exclusive Right-to-Sell Listing Contract with
Third-Party Defendant Choi International[, Inc. (‘Choi’)].”
[Amended Shuck Third-Party Complaint at ¶ 10.]

In December

2017, Hawaii Life and Choi “formed a strategic alliance and
created ‘the CHOI Group with Hawaii Life.’”
(emphasis in original).]

[Id. at ¶ 11

The Shucks also allege that,

“concurrently with the execution of the Purchase Contract,”
Plaintiff and the Paiges “executed a Dual Agency Consent
Addendum” (“the Addendum”) with Choi, Hawaii Life, and/or the
Choi Group with Hawaii Life.

[Id. at ¶ 13.]

The Shucks claim

that Choi “was responsible for correspondence with the seller
(Plaintiff), and Third-Party Defendant Hawaii Life was
responsible for correspondence with” the Paiges and KB1.
at ¶ 14.]

[Id.

The Amended Shuck Third-Party Complaint states the

Third-Party Defendants and Choi “sent, or caused to be sent,”
the First Report and Second Report to the Paiges or their
agents.

[Id. at ¶¶ 21, 24.]

The Shucks allege the transaction

manager for the prospective buyers’ real estate agent emailed
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the Third Report to the Paiges after Hay instructed her to do
so.

[Id. at ¶ 29–30.]
The Shucks claim the Second Report and Third Report

contained new information that was not in the First Report.

The

new information allegedly indicated that the First Report and
Second Report were not final versions and, therefore, did not
satisfy any of Plaintiff’s obligations under paragraph M-1
and/or M-5 of the Purchase Contract.

[Id. at ¶¶ 26, 32–33.]

Moreover, the Shucks allege the delivery of the pdf versions of
the title documents on August 21, 2018 constituted proper
delivery under paragraph M-1 of the Purchase Contract, which was
five days after the required deadline of August 16, 2018.

The

Shucks claim that, through the Third-Party Defendants’ negligent
acts and omissions, the title documents were not delivered to
the Paiges within the time frame under paragraph M-1 or M-5 of
the Purchase Contract.2

[Id. at ¶¶ 37–39.]

The Shucks allege the following claims: (1) negligence
against the Third-Party Defendants for breaching their duty of
care to Plaintiff and the Shucks for the untimely delivery of

The Amended Shuck Third-Party Complaint and the Paige
Crossclaim originally alleged claims against Choi, but the
parties stipulated to dismiss the claims against Choi without
prejudice. See Stipulation for Dismissal Without Prejudice of
Choi International, Inc. Pursuant to Fed. R. Civ. P.
41(a)(1)(A)(ii) and Order, filed 8/11/21 (dkt. no. 135). The
Court therefore does not address any claims against Choi in the
Amended Shuck Third-Party Complaint and the Paige Crossclaim.
2

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the title documents (“Third-Party Count I”); and (2)
indemnification and/or contribution against the Third-Party
Defendants because they caused the alleged damages to Plaintiff
and the Shucks are not at fault (“Third-Party Count II”).
The Paige Crossclaim is a truncated version of the
Amended Shuck Third-Party Complaint but alleges the same
underlying facts.

See Paige Crossclaim at ¶¶ 9–24.

The Paige

Crossclaim also alleges the same two claims as in the Amended
Shuck Third-Party Complaint (i.e., negligence against the ThirdParty Defendants and indemnification/contribution from the
Third-Party Defendants).

See id. at ¶¶ 25–40.

The Third-Party Defendants now move to strike and/or
dismiss with prejudice the Amended Shuck Third-Party Complaint
and the Paige Crossclaim.
DISCUSSION
I.

Amended Shuck Third-Party Complaint
The Third-Party Defendants argue the Amended Shuck

Third-Party Complaint should be dismissed or stricken because
the claims are not derivative of Plaintiff’s claims against the
Shucks, and the Amended Shuck Third-Party Complaint “does not
comply with the standards set forth by this Court with respect
to seeking leave to file a third-party complaint under Rule 14.”
[Mem. in Supp. of Motion at 10.]

The Court agrees with the

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Third-Party Defendants that the Shucks’ third-party claims are
not derivative of Plaintiff’s claims.
“A defending party may, as third-party plaintiff,
serve a summons and complaint on a nonparty who is or may be
liable to it for all or part of the claim against it.”
Civ. P. 14(a)(1).

Fed. R.

This Court has stated:

“The decision to allow a third-party defendant to
be impleaded under rule 14 is entrusted to the
sound discretion of the trial court.” United
States v. One 1977 Mercedes Benz, 708 F.2d 444,
452 (9th Cir. 1983). A third-party claim “may be
asserted only when the third party’s liability is
in some way dependant [sic] on the outcome of the
main claim and the third party’s liability is
secondary or derivative.” [Id.] “The crucial
characteristic of a Rule 14 claim is that
defendant is attempting to transfer to the thirdparty defendant the liability asserted against
him by the original plaintiff. The mere fact
that the alleged third-party claim arises from
the same transaction or set of facts as the
original claim is not enough.” Stewart v.
American Int’l Oil & Gas Co., 845 F.2d 196, 200
(9th Cir. 1988) (quoting Wright & Miller, 6 Fed.
Prac. & Proc. § 1446 at 257 (1971 ed.)). “It is
not sufficient that the third-party claim is a
related claim; the claim must be derivatively
based on the original plaintiff’s claim.” One
1977 Mercedes Benz, 450 SEL, 708 F.2d at 452.
U. S. Fire Ins. Co. v. Hawaiian Canoe Racing Ass’ns, CIV.
NO. 18-00212 LEK-RLP, 2019 WL 1674900, at *4 (D. Hawai`i
Apr. 17, 2019) (alterations in U.S. Fire) (citation omitted).
“Impleader is most commonly used for claims against a third
party for indemnification, subrogation, breach of warranty, or
contribution among joint tortfeasors.”
8

Uldricks v. Kapaa 382

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LLC, Civil No. 07-00117 JMS/KSC, 2007 WL 2694409, at *3 (D.
Hawai`i Sept. 11, 2007) (citation omitted).
A.

The Shucks’ Negligence Claim
In Third-Party Count I, the Shucks allege the “Third-

Party Defendants owed a duty of care to Plaintiff and the
Shucks, as managers of KB1, with respect to the sale and
marketing of the Property.”
Complaint at ¶ 55.]

[Amended Shuck Third-Party

The Third-Party Defendants allegedly

“breached their duty of care to Plaintiff and the Shucks by,
among other things, untimely delivering the title documents to
the prospective purchasers.”

[Id. at ¶ 57.]

The Third-Party

Defendants argue the Shucks’ negligence claim is not derivative
of the Plaintiff’s complaint because it is “independent from the
two causes of action in the Complaint.”
Motion at 12.]

[Mem. in Supp. of

The Third-Party Defendants claim Hawaii Life

could not have breached the Purchase Contract because it was not
a party to the contract.

[Id.]

The Third-Party Defendants

further argue “[t]he tort claim of negligence against Hawaii
Life is a separate and independent claim as compared to a breach
of contract claim.

The remedies and defenses are different, the

claims are based on different conduct, and a different standard
applies to tort and contract claims.”

[Id. at 12–13.]

Plaintiff asserts a breach of contract claim (Count I)
and a tort claim for intentional or negligent misrepresentation
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(Count II).

See Complaint at ¶¶ 30–47, 48–52.

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Thus, the Shucks

must plausibly allege that their negligence claim is
derivatively based on Count I or Count II.

See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’” (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 570 (2007))).

They have not done so.

“There are instances in which third parties may be
impleaded under Rule 14 when both the underlying lawsuit and the
third-party complaint allege breaches of contract.”

SCD RMA,

LLC v. Farsighted Enters., Inc., 591 F. Supp. 2d 1141, 1147 (D.
Hawai`i 2008) (some citations omitted) (citing Campen v.
Greenamyer, 940 F.2d 1533 (9th Cir. 1991)).

Rather than

claiming the Third-Party Defendants breached a contract, as
Plaintiff does, the Shucks allege the Third-Party Defendants
were negligent when they breached their duty of care by failing
to make timely delivery of the title documents.
Third-Party Complaint at ¶ 57.]

[Amended Shuck

The Shucks seemingly allege the

Third-Party Defendants’ duty of care derived from the Purchase
Contract.

See id. at ¶¶ 56–59.

Yet, the Shucks do not allege

the Third-Party Defendants were parties to the Purchase
Contract.

It is unclear, then, where the Third-Party

Defendants’ purported duty of care to Plaintiff arose from.
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The Shucks rely on Texas state law to argue that there
is “a duty to use reasonable care whenever a party provides
information to its customers or potential customer.”

[Shuck

Opp. at 5 (citing Fed. Land Bank Ass’n v. Sloane, 825 S.W.2d
439, 442 (Tex. 1991)).]

Because the Shucks do not allege the

Purchase Contract is governed by Texas law, Texas case law is
neither binding nor persuasive here.

The Shucks further argue

that their negligence claim is derivative of Plaintiff’s
contract claim because Hawai`i law “does not prohibit a [party]
from alleging a contract claim and tort claims based on the same
facts as an alternate theory of liability.”

[Id. at 6

(alteration in Shuck Opp.) (citing Francis v. Lee Enterprises,
Inc., 89 Hawai`i 234, 244, 971 P.2d 707, 717 (1999)).]

First,

the Shucks improperly cite to Francis for their proposition
because that case does not discuss whether a party can allege
alternate theories of liability.

Francis instead concerns

whether tort recovery is allowed in breach of contract cases.
See 89 Hawai`i at 244, 971 P.2d at 717.

Second, even if

Plaintiff could have alleged alternate theories of liability
regarding the breach of the Purchase Contract (he did not), the
Shucks fail to explain how this makes their negligence claim
derivative of the Plaintiff’s contract claim.
The Shucks next allege “the parties to the Purchase
Contract executed” the Addendum with Choi and Hawaii Life.
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[Amended Shuck Third-Party Complaint at ¶ 13.]

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The Shucks state

Choi was “responsible for correspondence” with Plaintiff, and
Hawaii Life was “responsible for correspondence” with the Paiges
and KB1.

[Id. at ¶ 14.]

But, it is not clear whether the

alleged responsibilities were provided for in the Addendum such
that contractual obligations were created.

Further, although

some of the Third-Party Defendants allegedly forwarded the three
preliminary reports, see id. at ¶¶ 21, 24, 29–30, the Shucks do
not explain whether the Third-Party Defendants’ responsibilities
under the Addendum required them to send the preliminary
reports; that is, whether the preliminary reports were
“correspondence” they were “responsible for.”

Even assuming

that the Third-Party Defendants were contractually obligated to
send the preliminary reports, the Shucks only claim Hawaii Life
was responsible for correspondence with the Paiges and KB1; not
that Hawaii Life was responsible for correspondence with
Plaintiff.

See id. at ¶ 14.

The Shucks therefore fail to

plausibly allege the Third-Party Defendants had a contract with
Plaintiff, let alone that a contract was breached.

Thus, the

Shucks’ negligence claim is not derivatively based on
Plaintiff’s contract claim.
Similarly, the Shucks do not sufficiently allege their
negligence claim is derivatively based on Plaintiff’s
intentional or negligent misrepresentation claim.
12

The Shucks

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allege the Third-Party Defendants were negligent because they
breached a duty of care to Plaintiff for untimely delivery of
the title documents.

[Id. at ¶ 57.]

Plaintiff, on the other

hand, alleges “the Paiges intentionally or negligently made
false misrepresentations to Plaintiff that the Paiges would
either proceed in good faith with the purchase of the Property
and/or elect to terminate the Purchase Contract on a valid
basis.”

[Complaint at ¶ 49.]

The two claims are different,

relying on separate theories and facts.

Put another way, the

Shucks allege the Third-Party Defendants are liable to them for
a claim that is independent from Plaintiff’s claim.

This runs

counter to the purpose of a third-party complaint.

See Fed. R.

Civ. P. 14(a)(1).
Accordingly, the Shucks do not explain how their
negligence claim is derivatively based on either Plaintiff’s
breach of contract claim or intentional or negligent
misrepresentation claims beyond merely asserting that the claims
arise from the same transaction or set of facts.

See One 1977

Mercedes Benz, 708 F.2d at 452; Stewart, 845 F.2d at 200.

Thus,

Third-Party Count I is stricken because it is not a proper
third-party claim under Rule 14(a)(1).
B.

The Shucks’ Contribution and Indemnification Claims
In Third-Party Count II, the Shucks allege they “are

entitled to indemnification and/or contribution from Third-Party
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Defendants” because Plaintiff’s “damages were caused by the
negligence or fault of Third-Party Defendants.”
Third-Party Complaint at ¶ 70.].

[Amended Shuck

The Third-Party Defendants

argue there is no contractual or implied basis for
indemnification, and contribution is improper because “Hawaii
has abolished joint and several liability for joint tortfeasors
except for limited circumstances, not applicable here.”

[Mem.

in Supp. of Motion at 17–18 (citing HRS § 663-10.9).]
Ultimately, the Shucks do not plausibly allege they can seek
contribution or indemnification from the Third-Party Defendants
for Plaintiff’s Count I and Count II claims.
As an initial matter, the Shucks do not allege there
is an express or implied agreement between them and the ThirdParty Defendants for contribution or indemnification.

After the

Third-Party Defendants pointed this out in their Motion, see
Mem. in Supp. of Motion at 18, the Shucks again failed to
identify such an agreement in their opposition.

Nevertheless,

the Shucks’ contribution and indemnification claims also fail
for other reasons.
Contribution or indemnification for Count I, a
contract claim, is improper because they “are remedies sounding
in tort, and not contract.”

SCD RMA, 591 F. Supp. 2d at 1147.

“[C]ourts will not allow tort recovery in cases in which the
underlying nature of the claim is essentially a breach of
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contract.”

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Id. (citation omitted); see also Francis, 89 Hawai`i

at 244, 971 P.2d at 717 (holding that Hawai`i law does not
recognize a tortious breach of contract claim “in the absence of
conduct that (1) violates a duty that is independently
recognized by the principles of tort law and (2) transcends the
breach of the contract”).

The Shucks, therefore, cannot seek

indemnification or contribution from the Third-Party Defendants
for Plaintiff’s breach of contract claim.
Contribution or indemnification for Count II is also
inappropriate.

Count II alleges “the Paiges intentionally or

negligently made false misrepresentations to Plaintiff that the
Paiges would either proceed in good faith with the purchase of
the Property and/or elect to terminate the Purchase Contract on
a valid basis.”

[Complaint at ¶ 49.]

Importantly, Plaintiff

neither alleges this claim directly against the Shucks nor
alleges a legal theory explaining how the Shucks could be liable
for this claim.

The Shucks are therefore seeking to transfer

liability to the Third-Party Defendants for a claim Plaintiff is
not asserting against them.
Rule 14.

This contradicts the purpose of

See Stewart, 845 F.2d at 200.

Further, even if

Plaintiff amended the Complaint to allege Count II against the
Shucks, the Shucks still could not seek contribution or
indemnification.

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Although Count II sounds in tort, it resembles a
“thinly veiled contract claim[].”
at 1147.

See SCD RMA, 591 F. Supp. 2d

In analyzing Count II, “the relevant query is whether

the genesis or origin of the underlying claims, including those
sounding in tort, is premised on a contractual relationship or
is based on an independent tort claim under state law.”

See

Burlington Ins. Co. v. United Coatings Mfg. Co., 518 F. Supp. 2d
1241, 1250–51 (D. Hawai`i 2007) (emphases in Burlington)
(footnote omitted).

Here, the alleged misrepresentations seem

to concern duties covered by the contract itself.
Complaint at ¶¶ 49–52.

See, e.g.,

A party’s duty to perform the terms of

the contract in good faith is implied in the contract.

See Best

Place, Inc. v. Penn Am. Ins. Co., 82 Hawai`i 120, 123–24, 920
P.2d 334, 337–38 (1996) (“[E]very contract contains an implied
covenant of good faith and fair dealing that neither party will
do anything that will deprive the other of the benefits of the
agreement.” (citations omitted)).

The failure to act in good

faith, therefore, is not generally a tort claim.

See Nicol v.

Kaanapali Golf Ests. Cmty. Ass’n, CIV. NO. 17-00251 JMS-KJM,
2021 WL 4037427, at *7 (D. Hawai`i Sept. 3, 2021) (“Hawaii law
generally does not recognize tort claims for breach of good
faith or fair dealing outside the insurance context.” (citation
and internal quotation marks omitted)).

Moreover, the

representations about the terms of the contract, such as
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purchasing the Property in good faith or validly terminating the
Purchase Contract, clearly depend on a contractual relationship.
See, e.g., Burlington, 518 F. Supp. 2d at 1251 (finding that,
because the alleged negligent misrepresentations about the
product’s acrylic percentage “depend[ed] upon the existence of
United Coatings’ underlying contract, . . . the claim for
negligence misrepresentation [was] contract based”).
Regardless, the Court need not decide whether Count II
is definitively a contract claim or tort claim because
contribution and indemnification are improper under either
interpretation.

If Count II is viewed as a contract claim, then

contribution or indemnification from the Third-Party Defendants
is impermissible because, again, those are remedies sounding in
tort, not contract.

See SCD RMA, 591 F. Supp. 2d at 1147.

If Count II is a tort claim, contribution and
indemnification are equally inappropriate under the facts
alleged.

Under Hawai`i law, “[t]he right of contribution exists

among joint tortfeasors.”

Haw. Rev. Stat. § 663-12(a).

But,

“contribution is only available when joint tortfeasors are
‘severally liable for the same injury to plaintiff. . . .

And a

tortfeasor . . . cannot be jointly and/or severally liable with
another unless the person who has been harmed can sue and
recover from both.’”

Ill. Nat’l Ins. Co. v. Nordic PCL Constr.,

Inc., 870 F. Supp. 2d 1015, 1047 (D. Hawai`i 2012) (brackets,
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emphases, citation, and some internal quotation marks omitted);
see Haw. Rev. Stat. § 663-11 (defining the term “joint
tortfeasors”).

The question then is whether the Shucks

sufficiently allege the Third-Party Defendants “potentially
breached duties owed to Plaintiff[], even though Plaintiff[]
ha[s] not asserted claims directly against [them].”

Cabalce v.

VSE Corp., 914 F. Supp. 2d 1145, 1159 (D. Hawai`i 2012)
(emphasis in Cabalce).

The answer is no.

Plaintiff claims the

Paiges made the intentional or negligent misrepresentations
regarding their intent to either proceed in good faith with the
purchase of the Property or elect to terminate the Purchase
Contract on a valid basis.

See Complaint at ¶ 49.

The Shucks

do not allege how or why the Third-Party Defendants would be
jointly and/or severally liable for the Paiges’ alleged
intentional or negligent misrepresentations to Plaintiff.
In any event, the Shucks cannot seek contribution for
Plaintiff’s intentional misrepresentation claim because “[t]here
is no right of contribution in favor of any tortfeasor who has
intentionally caused the harm[.]”

Brooks v. Dana Nance & Co.,

113 Hawai`i 406, 416, 153 P.3d 1091, 1101 (2007) (first
alteration in Brooks) (citation and quotation marks omitted).
Contribution for the negligent misrepresentation claim fairs no
better.

The Shucks do not allege facts to suggest the Third-

Party Defendants were involved in making those
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misrepresentations.

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In fact, the Shucks’ negligence claim

relies on the Third-Party Defendants’ actions that are unrelated
to the conduct at issue in Plaintiff’s negligent
misrepresentation claim.

The Shucks simply do not address the

Plaintiff’s negligent misrepresentation claim.

Compare Amended

Shuck Third-Party Complaint at ¶¶ 54–67, with Complaint at
¶¶ 48–52.

Thus, the Shucks do not sufficiently allege that

contribution applies to the Third-Party Defendants for Count II.
The Shucks’ indemnification claim also fails.

This

district court has stated:
The Restatement says that indemnification can be
imposed when “two persons are liable in tort to a
third person for the same harm and one of them
discharges the liability of both.” Restatement
(Second) of Torts § 886B(1). Under those
circumstances, “he is entitled to indemnity from
the other if the other would be unjustly enriched
at his expense by the discharge of the
liability.” Id. Indemnity can be based on
either an express contract, a contract impliedin-fact, or equitable concepts relating to a
special legal relationship between the
tortfeasors. See 41 Am. Jur. 2d § 3 (2004).
SCD RMA, 591 F. Supp. 2d at 1146–47.

A party alleging an

equitable indemnification claim “must plead . . . that: (1) he
or she has discharged a legal obligation owed to a third party;
(2) the defendant was also liable to the third party; and (3) as
between the claimant and the defendant, the obligation ought to
be discharged by the latter.”

Sidlo v. Kaiser Permanente Ins.

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Co., 221 F. Supp. 3d 1183, 1215 (D. Hawai`i 2016) (citation and
internal quotation marks omitted).
Here, the Shucks do not allege the theory of indemnity
that applies.

Nonetheless, the Amended Shuck Third-Party

Complaint does not contain any allegations that the Shucks or
the Third-Party Defendants discharged a legal obligation owed to
Plaintiff.

The Shucks therefore fail to plausibly allege they

are entitled to indemnification from the Third-Party Defendants
for Plaintiff’s intentional or negligent misrepresentation
claims.

Accordingly, the Schuck’s contribution and

indemnification claims are stricken.
C.

Summary
The Amended Shuck Third-Party Complaint is improper

because: (1) the Shucks’ negligence claim is not plausibly
alleged to be derivatively based on Plaintiff’s claims; and
(2) the Shucks fail to plausibly allege they are entitled to
contribution or indemnification from the Third-Party Defendants
for Plaintiff’s claims.3

Therefore, the Motion is granted to the

extent the Amended Shuck Third-Party Complaint is stricken
pursuant to Fed. R. Civ. P. 14(a)(4).

The Third-Party
challenging the merits
Complaint, see Mem. in
unnecessary to address
ruling.
3

The striking of the

Defendants raise additional arguments
of the Amended Shuck Third-Party
Supp. of Motion at 17–18, but it is
those arguments in light of the Court’s
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third-party claims is without prejudice to the Shucks filing
their claims against the Third-Party Defendants in a separate
action.
II.

Paige Crossclaim
The Third-Party Defendants argue the Paige Crossclaim

should be dismissed or stricken because Hawaii Life and the
Paiges are not coparties.

[Mem. in Supp. of Motion at 19.]

The

Paiges contend that they should be treated as coparties with
Hawaii Life and, therefore, their crossclaim is proper.
Opp. at 6.]

[Paige

The Court agrees with the Third-Party Defendants

that they are not coparties with the Paiges.
“A cross-claim may be stated ‘by one party against a
coparty if the claim arises out of the transaction or occurrence
that is the subject matter of the original action.’”

Beach

Front Villas, LLC v. Rogers, CIV. NO. 18-000457 LEK, 2020 WL
3213332, at *4 (D. Hawai`i June 15, 2020) (quoting Fed. R. Civ.
P. 13(g)).
Although courts have reached differing results,
the court agrees that “the rule that best
reflects the original intent of the cross-claim
provision was stated by the court in Murray v.
Haverford Hospital Corporation[, 278 F. Supp. 5
(E.D. Pa. 1968)].” 6 Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Fed. Prac. & Proc.
§ 1431 (2d ed.). Specifically, the court agrees
that “Rule 13(g) was intended to regulate crossclaims between ‘co-parties’ and contemplated that
such cross-claims should be asserted against
parties having like status, such as,
codefendants.” Id. (quoting Murray, 278 F. Supp.
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at 6); see also Int’l Paving Sys v. Van–Tulco,
Inc., 866 F. Supp. 682, 695 (E.D.N.Y. 1994)
(finding that a defendant and a third-party
defendant are not “coparties” and that “[t]his
interpretation of the term ‘co-party’ has been
regarded as the rule that best reflect the
original intent of Rule 13”).
The Murray rule best reflects the intent of
the Federal Rules of Civil Procedure — a plain
reading of the rules does not permit a crossclaim between an original defendant and a thirdparty defendant. . . . Additionally, the
limitations in Rule 14(a)(2)(B) — which permits a
third-party defendant to file a cross-claim only
against another third-party defendant — further
suggest that the rules do not contemplate crossclaims between original defendants and thirdparty defendants.
Nye v. Hilo Med. Ctr., Civil No. 09-00220 JMS/KSC, 2010 WL
931926, at *7–8 (D. Hawai`i Mar. 11, 2010) (some alterations in
Nye).
The Paiges make multiple arguments in support of their
claim that they should be treated as coparties with the ThirdParty Defendants.

Each argument fails.

Although the Paiges

vaguely argue they are coparties with the Third-Party Defendants
because the Third-Party Defendants were added to the case
through the original third-party complaint,4 see Paige Opp. at
10, it is unclear why that would make the Paiges coparties with
the Third-Party Defendants because the Paiges would still be
coparties with the other original defendants, the Shucks.

The Shucks filed their original third-party complaint on
April 21, 2021. [Dkt. no. 91.]
4

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Regardless, the argument fails because the Amended Shuck ThirdParty Complaint has now been stricken.
Section I.C.

See supra Discussion

Next, the Paiges cite to numerous cases outside of

the Ninth Circuit and one case from the District of Arizona to
support their position.

See Paige Opp. at 6–10.

are neither binding nor persuasive.

Those cases

This Court continues to

agree with prior rulings in this district that “a plain reading
of the [Federal Rules of Civil Procedure] does not permit a
cross-claim between an original defendant and a third-party
defendant.”

See Nye, 2010 WL 931926, at *8; see also Beach

Front Villas, 2020 WL 3213332, at *4 (quoting Nye).
Finally, the Paiges attempt to distinguish Beach Front
Villas from the present case.

See Paige Opp. at 8–10.

In Beach

Front Villas, the original defendant, Jennifer Rogers
(“Rogers”), filed a third-party complaint against three
individuals and one entity.

2020 WL 3213332, at *2.

One of the

third-party defendants, David Richardson (“Richardson”), then
filed a crossclaim against the three other third-party
defendants and Rogers.

Id.

This Court ruled that each of

Rogers’s third-party claims was improper and therefore the
third-party complaint was stricken.

Id. at *3–4.

This Court

then ruled that Richardson’s crossclaim against Rogers was
impermissible because it was between the original defendant,
Rogers, and a third-party defendant, Richardson.
23

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The Paiges argue that, because they “have not asserted
a Third-Party Complaint directly against the recently added
[Third-Party Defendants,]. . . . they should be treated as
coparties within the meaning of Rule 13(g) as they were not in
direct opposition as was the case in Beach Front Villas.”
[Paige Opp. at 10.]

This argument is misplaced.

The third-

party complaint in Beach Front Villas was irrelevant for the
analysis of Richardson’s crossclaim against Rogers.
true here.

The same is

Although in Beach Front Villas the third-party

defendant brought a crossclaim against the original defendant,
the opposite is true in the present case because the Paiges, as
the original defendants, bring a crossclaim against the ThirdParty Defendants.

But, in either scenario, an original

defendant and a third-party defendant are not coparties with
like status under Rule 13(g).

See Nye, 2010 WL 931926, at *8.

Because the Paiges and the Third-Party Defendants are
not coparties with like status, the Paige Crossclaim is
dismissed for failure to state a claim.

The dismissal is

without prejudice, however, because, although the crossclaim is
improper, the Paiges could bring their claims using an
appropriate procedural method.

See Hoang v. Bank of Am., N.A.,

910 F.3d 1096, 1102 (9th Cir. 2018) (“Dismissal with prejudice
and without leave to amend is not appropriate unless it is clear

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. . . that the complaint could not be saved by amendment.”
(citation and quotation marks omitted)).
CONCLUSION
For the foregoing reasons, the Third-Party Defendants’
Motion to Dismiss and/or Strike (1) Defendants Melissa Jackson
and Richard Shuck’s First Amended Third Party Complaint, Filed
June 2, 2021 [Dkt. 102]; and (2) Defendants Jeremy Slotnick
Paige and Vicki Susan Slotnick’s Crossclaim Against Third-Party
Defendants Hawaii Life Real Estate Services, LLC, Choi
International, Inc., Rhonda Lee Hay, and Cynthia Nash, Filed May
18, 2021 [Dkt. 95], filed July 16, 2021, is HEREBY GRANTED IN
PART AND DENIED IN PART.

The Motion is GRANTED to the extent

that the Amended Shuck Third-Party Complaint is STRICKEN and the
Paige Crossclaim is DISMISSED.

The Motion is DENIED, insofar as

the dismissal of the Paige Crossclaim is WITHOUT PREJUDICE and
the striking of the Amended Shuck Third-Party Complaint is
WITHOUT PREJUDICE to the Shucks filing their claims against the
Third-Party Defendants in a separate action.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, November 18, 2021.

STEVEN D. DAVIDSON, ETC. VS. JEREMY SLOTNICK PAIGE, ET AL; CV
20-00097 LEK-WRP; ORDER GRANTING IN PART AND DENYING IN PART THE
THIRD-PARTY DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE

26