J. MICHAEL SEABRIGHT, Chief District Judge.
There are three motions before the court: (1) Plaintiff Vernon Suzuki's ("Plaintiff") "Objections to Magistrate's Order Dated April 28, 2016" ("Plaintiff's Appeal"), which appeals Magistrate Judge Barry M. Kurren's April 28, 2016 "Order Denying Plaintiff's Motion for Leave to Amend and Motion for Leave to Extend Deadline for Disclosure of Expert Reports Or, In the Alternative, To Reset Trial And Pretrial Deadlines" (the "April 28 Order"), Doc. No. 81; (2) Defendant Helicopter Consultants of Maui, Inc. d/b/a Blue Hawaiian Helicopters' ("Defendant") Motion to Strike and Preclude Testimony of Plaintiff's Expert Witnesses ("Motion to Strike"), Doc. No. 109; and (3) Defendant's Motion to Extend Dispositive Motions Deadline for Purpose of Filing a Motion for Summary Judgment ("Defendant's Motion to Extend Dispositive Motions Deadline"), Doc. No. 115. Based on the following, the court: (1) AFFIRMS the April 28 Order; (2) GRANTS in part and DENIES in part Defendant's Motion to Strike; and (3) DENIES Defendant's Motion to Extend Dispositive Motions Deadline.
Plaintiff alleges that, on November 10, 2011, one of Defendant's helicopters crashed on undeveloped land on Molokai. Doc. No. 1, Compl. ¶¶ 9-10. According to a May 2013 National Transportation Safety Board ("NTSB") Report, the debris path from the crash was approximately 1,330 feet long, extending west-northwest from the main wreckage. Id. ¶ 23. The site of the crash occurred on TMK: (2) 5-6-006:012 ("Parcel 12"), but debris from the crash extended to TMK: (2) 5-6-006:013 ("Parcel 13"). See Doc. No. 47-3, Proposed Am. Compl.
On October 30, 2013, Plaintiff filed this lawsuit seeking damages the crash caused to "Plaintiff's Land." Doc. No. 1, Compl. ¶ 10. The Complaint asserted seven causes of action: "Negligence — Res Ipsa Loquitur" (Count I), "Negligence" (Count II), "Gross Negligence" (Count III), "Trespass/Continuing Trespass" (Count IV), Nuisance/Continuing Nuisance (Count V), "Negligent Hiring, Training, Retention, and/or Supervision" (Count VI), and "Willfull [sic] and Wanton Conduct/Reckless Disregard" (Count VII). Id. Plaintiff requested both injunctive relief and damages. Id.
In the very early stages of the discovery process — i.e., less than three months after Plaintiff filed this case — Defendants raised the issue that the crash site was on Parcel 12 (not Parcel 13) and that Plaintiff may not actually own Parcel 12. Defendant's March 18, 2014 letter to Plaintiff's lawyer explains:
Doc. No. 102-3, Letter to Plaintiff's Counsel at 1, 8. Defendant's letter also provided Plaintiff with a map, id. at 2-7, and the publicly-available links to the internet resources referenced in the letter. Id. at 8.
On December 3, 2014, Defendant served Plaintiff with its "First Request for Production of Documents and Things." Doc. No. 115-6. Among other things, Defendant requested "[d]ocuments relating to Plaintiff's past, current, or prospective ownership" of Parcel 12 and Parcel 13. Id. at 10. Plaintiff failed to produce documents evidencing ownership of Parcel 12. Doc. No. 115-1, Def.'s Motion to Extend Dispositive Motions Deadline at 4. Accordingly, during Plaintiff's first deposition on February 5, 2015, Defendant "reiterated its request for these documents." Id. In response, Plaintiff's counsel agreed that "it's obvious that there will be supplementation of discovery of production of documents" and offered to allow Defendant the opportunity to take a further deposition of Plaintiff upon the production of such documents. See Doc. No. 115-7, Ex. E (Feb. 5, 2015 Suzuki Dep.).
In "Spring 2015" — i.e., over a year after Defendant first questioned Plaintiff's ownership of Parcel 12 — Plaintiff contracted for a survey (the "2015 Survey") to "confirm and/or pinpoint the specific TMK parcel on which the crash occurred." Doc. No. 57-1, Decl. of Stephen M. Tannenbaum ("Tannenbaum Decl.") ¶ 9. In "mid-August 2015," Plaintiff received the results of the 2015 Survey which "revealed that the parcel of land on which the helicopter crashed was not the parcel that the Plaintiff had to that point believed, [Parcel 13], the crash having occurred just over the border of two adjoining TMK parcels." Id. ¶ 10. Instead, the helicopter crashed on Parcel 12. Id. ¶ 11. Plaintiff apparently suspected he had an ownership interest in Parcel 12, but Plaintiff's counsel "had to confirm that Plaintiff had good title" to Parcel 12 because "Parcel 12 has splintered title and was subject to significant litigation over same." Id. ¶¶ 11-12. After receiving the 2015 Survey, "counsel for Plaintiff had to confirm that Plaintiff had good title to . . . the parcel that the survey identified as where the helicopter went down." Id. ¶ 11. Plaintiff asserts that he "confirmed title to Parcel 12" by Fall 2015.
On February 4, 2016 — well after Plaintiff confirmed title to Parcel 12 — Plaintiff filed a Motion for Leave to Amend Complaint ("Motion to Amend"). Doc. No. 47. Plaintiff's Motion to Amend seeks to:
Doc. No. 59, Pl.'s Reply in Support of his Motion to Amend, at 2.
The following day, Plaintiff filed a Motion for Extension of Time to File Disclosure of Expert Reports Or, In the Alternative, To Reset Trial and Pretrial Deadlines ("Plaintiff's Motion to Extend Expert Witness Deadlines"). Doc. No. 49. Plaintiff's Motion to Extend Expert Witness Deadlines seeks a ten-week extension of the February 8, 2016 deadline "based on the fact that it took until late this past summer to complete the survey of the crash site, to identify precisely which parcels of land were affected and how, as well as, to further identify debris and debris fields, since that time." Id.
The April 28 Order denied both the Motion to Amend and Plaintiff's Motion to Extend Expert Witness Deadlines. Doc. No. 69. With regard to the Motion to Amend, the April 28 Order reasoned:
Id. at 7. The April 28 Order concluded that "Plaintiff's attempt to add claims on behalf of his absent co-owners who own individual, separate, and distinct title to Parcel 12 is barred by the statute of limitations" because, in Hawaii, "[a]ctions for recovery of compensation for damage or injury to persons or property shall be instituted within two years after the cause of action accrued, and not after." Id. at 8 (citing Haw. Rev. Stat. § 657-7 (Damage to persons or property)). The April 28 Order explained:
Id. at 9.
In denying the Motion to Amend, the April 28 Order made clear that, "with respect to Parcel 12, Plaintiff may sue Defendants for damage to the property, with or without the inclusion of his co-tenants, but may not recover more than his proportionate share of damages." Id. That is, assuming Plaintiff can prove an ownership interest in Parcel 12, the April 28 Order reasoned that Plaintiff may seek injunctive relief as to the entirety of Parcel 12 and money damages as to Plaintiff's proportional share of Parcel 12.
As to Plaintiff's Motion to Extend Expert Witness Deadlines, the April 28 Order analyzed Federal Rule of Civil Procedure 16(b)(4), which provides that a scheduling order "may be modified only for good cause and with the judge's consent." In determining whether "good cause" supported Plaintiff's Motion to Extend Expert Witness Deadlines, the April 28 Order "primarily consider[ed] the diligence of the party seeking the amendment." Id. at 10 (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). The April 28 Order determined that "Plaintiff was not diligent in attempting to meet the original expert disclosure deadline of February 8, 2016" because:
Id. at 10-11.
On June 7, 2016, Defendant deposed Plaintiff for a second time. See Doc. No. 115-3, Def.'s Ex. A (June 7, 2016 Suzuki Dep.). During the second deposition, Plaintiff admitted that he did not have a deed or title for Parcel 12. Id. at 41:1-3. According to Plaintiff, he paid for an ownership interest in Parcel 12 but he hasn't "transferred ownership yet." Id. at 41:1-14. Plaintiff asserted that he pays the taxes for Parcel 12, but he does not know if there is any government or state agency that identifies him as an owner of Parcel 12. Id. at 45:5-10. According to Plaintiff, "there's a piece of paper somewhere stating that [he] own[s] 21 percent" of Parcel 12, but he "don't know for sure" because "[i]t doesn't concern [him]." Id. at 48.
During a July 1, 2016 hearing on the motions, the parties agreed that Plaintiff's original Complaint, Doc. No. 1, entitled Plaintiff to seek injunctive relief (i.e., remediation) with regard to all of Parcels 12 and 13. In addition, the parties agreed that, at a minimum, Plaintiff's original Complaint entitled Plaintiff to seek damages as to the entirety of Parcel 13 and as to Plaintiff's proportionate share (if any) of Parcel 12. Thus, the Proposed Amended Complaint only adds a statement (or, as argued by Plaintiff, "clarifies") that Plaintiff also seeks damages on behalf of Parcel 12 co-tenants.
Before turning to the merits of Plaintiff's Appeal, the court addresses the threshold issue of the proper standard for reviewing the April 28 Order. Plaintiff argues that the appropriate standard of review is de novo as to the portion of the April 28 Order denying Plaintiff's Motion to Amend but "clearly erroneous or contrary to law" as to the portion of the April 28 Order denying Plaintiff's Motion to Extend Expert Witness Deadlines. Doc. No. 81, at 7. Defendants argue that the appropriate standard of review for the entirety of the April 28 Order is "clearly erroneous or contrary to law." Doc. No. 102, at 4.
A party may appeal a magistrate judge's determination of a pretrial nondispositive matter to the district court, and the district court may modify or set aside any portion of the magistrate judge's order found to be "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); L.R. 74.1. As defined by Rule 72(a) of the Federal Rules of Civil Procedure, a nondispositive matter is "a pretrial matter not dispositive of a party's claim or defense." This extremely deferential standard requires the district judge to affirm the magistrate judge "unless the court is left with the definite and firm conviction that a mistake has been committed." Hasegawa v. Hawaii, 2011 WL 6258831, at *1 (D. Haw. Dec. 14, 2011) (quotation marks omitted).
Plaintiff argues that "the April 28 Order denying amendment was effectively a dispositive ruling" because it "purports to foreclose altogether Plaintiff's ability to recover monetary damages for the majority of Parcel 12." Doc. No. 81, at 6. The court disagrees. "A motion for leave to amend is a nondispositive motion which a magistrate judge may properly decide." Seto v. Thielen, 519 F. App'x 966, 969 (9th Cir. 2013). The April 28 Order's ruling on Plaintiff's Motion to Amend was "not dispositive of any claim or defense of a party." Fed. R. Civ. P. 72(a). Rather, the April 28 Order merely determined that Plaintiff could not amend his Complaint, but allowed all of Plaintiff's substantive claims outlined in his original Complaint to proceed. By denying Plaintiff leave to file his Proposed Amended Complaint, the April 28 Order was not dispositive of any of Plaintiff's claims or defenses. Id.
Accordingly, the entire April 28 Order was nondispositive. As such, the court applies the "clearly erroneous or contrary to law" standard to the entirety of Plaintiff's Appeal.
"A district court shall consider the appeal and shall set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." LR 74.1. See also Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002) ("A district judge may reconsider a magistrate's order in a pretrial matter if that order is `clearly erroneous or contrary to law.'"). Additionally, the "district judge may also reconsider sua sponte any matter determined by a magistrate judge. See LR 74.1. Toward that end, the district court may affirm the magistrate judge's ultimate conclusion on a different basis. See United States v. Pope, 686 F.3d 1078, 1080 (9th Cir. 2012) (affirming a district court decision after "[t]he district court affirmed the magistrate court . . . but on slightly different grounds").
Federal Rule of Civil Procedure 26(a)(2)(A) mandates a party to disclose the identity of any witness it may use at trial to present expert testimony. Disclosure of an expert testimony involves submitting a report containing detailed information. Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). Specifically:
Id.
Rule 26(a)(2)(D) requires a party to make the above "disclosures at the times and in the sequence that the court orders." Moreover, such disclosure deadlines are "to be taken seriously." Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). "Timely and careful compliance with the requirements of Rule 26(a) is essential, both as a matter of fairness to litigants and as a matter of orderly procedure [particularly] during . . . events which occur in the final phases of discovery, motion work and trial preparation." Garcia v. Qwest Corp., 2008 WL 4531657, at *2 (D. Ariz. Oct. 3, 2008) (quoting Dixie Steel Erectors, Inc. v. Grove U.S., L.L.C., 2005 WL 3558663, at *2 (W.D. Okla. Dec. 29, 2005)). "The purpose of the rule is to eliminate unfair surprise to the opposing party." See Durham v. Cty. of Maui, 2011 WL 2532423, at *7 (D. Haw. June 23, 2011) (quotation and citation omitted).
Accordingly, Federal Rule of Civil Procedure 37(c)(1) "gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed." Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
"`Rule 37(c)(1) does not require a finding of bad faith or callous disregard of the discovery rules' as a precondition before imposing sanctions." Garcia, 2008 WL 4531657, at *3 (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003) (affirming district court's preclusion of supplemental opinion where plaintiff failed to timely disclose his expert's supplemental opinion)). See also Yeti by Molly, Ltd., 259 F.3d at 1106 ("Thus, even though Deckers never violated an explicit court order to produce the Vuckovich report and even absent a showing in the record of bad faith or willfulness, exclusion is an appropriate remedy for failing to fulfill the required disclosure requirements of Rule 26(a).").
"The range of sanctions provided in Rule 37(c), from the most harsh (total exclusion and dismissal of the case) to more moderate (limited exclusion and attorney's fees), gives the district court leeway to best match the degree of non-compliance with the purpose of Rule 26's mandatory disclosure requirements." Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 34 (1st Cir. 2001). See also, e.g., Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 642 (D. Haw. 2008) ("The Ninth Circuit gives `particularly wide latitude to the district court's discretion to issue sanctions under Rule 37(c)(1).'") (quoting Yeti by Molly, Ltd., 259 F.3d at 1106).
"Two express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless." Yeti by Molly, Ltd., 259 F.3d at 1106. The burden to prove substantial justification or harmlessness is on the party facing sanctions. Id. at 1107 (citing Wilson, 250 F.3d at 21). "For purposes of Rule 37(c)(1), a party's failure to disclose is substantially justified where the non-moving party has a reasonable basis in law and fact, and where there exists a genuine dispute concerning compliance." Garcia, 2008 WL 4531657, at *3 (citations omitted). "Failure to comply with the mandate of the Rule is harmless when there is no prejudice to the party entitled to the disclosure." Id.
A scheduling order may be modified for good cause and with the judge's consent. See Fed. R. Civ. P. 16(b)(4). See also Johnson, 975 F.2d at 608 ("Orders entered before the final pretrial conference may be modified upon a showing of `good cause'. . . ."). In evaluating "good cause," the court "primarily considers the diligence of the party seeking the amendment." Id. at 609.
The April 28 Order denied both the Motion to Amend and the Motion to Extend Expert Witness Deadlines. The court AFFIRMS the April 28 Order with regard to both motions, although, as explained below, on different grounds as to the Motion to Amend.
The April 28 Order denied the Motion to Amend on futility grounds because "Plaintiff's attempt to add claims on behalf of his absent co-owners who own individual, separate, and distinct title to Parcel 12 is barred by the statute of limitations." Doc. No. 69, April 28 Order at 8. Plaintiff argues that the April 28 Order's "legal findings pertaining to the supposed expiration of the statute of limitations for those claims or some of those claims that Plaintiff had already brought in connection with Parcel 12" are incorrect. Doc. No. 81, Appeal at 10. Specifically, Plaintiff argues that the Proposed Amended Complaint "did not actually add any new claims or parties." Id. at 11.
The court agrees that Plaintiff's Proposed Amended Complaint neither adds new claims nor parties to this action. Rather, Plaintiff's Proposed Amended Complaint "specified [the] TMK numbers of the parcels affected, Plaintiff's ownership of each, and that he is suing on Parcel 13 as sole owner and on Parcel 12 based on his undivided tenancy in common, but for damages and/or injunctive relief pertaining to the entire parcel." Id. See also Doc. No. 47-3, Proposed Am. Compl. Although Plaintiff's Proposed Amended Complaint would dramatically change the scope of Plaintiff's lawsuit, it would do so by recasting the contours of existing claims and the responsibilities of an existing party (Plaintiff). See Doc. No. 47-3, Proposed Am. Compl. The court finds that the April 28 Order's conclusion to the contrary was clear error.
Nevertheless, the court agrees with the April 28 Order's ultimate conclusion that the Motion to Amend should be denied, albeit on other grounds. See Pope, 686 F.3d at 1080. See also Shroff v. Spellman, 604 F.3d 1179, 1187 n.4 (10th Cir. 2010) (explaining that the court can affirm a magistrate judge's decision "on any grounds for which there is a record sufficient to permit conclusions of law" even if those grounds were not relied upon by the magistrate judge); Griffin v. Raytheon Co. Long Term Disability Plan No. 558, 2005 WL 4891214, at *1 (N.D. Tex. Aug. 31, 2005) ("As in other appeals, the court may affirm a correct order of the magistrate judge on grounds that he did not cite or that were not raised by him.").
In light of the parties' agreement at the July 1, 2016 hearing, Plaintiff's Proposed Amended Complaint raises only one relevant issue — whether Plaintiff can collect damages on behalf of the Parcel 12 co-tenants. The court answers this question in the negative for two reasons. First, Plaintiff's Proposed Amended Complaint is unduly delayed and would unfairly prejudice Defendant. In addition, the court finds that Plaintiff's Proposed Amended Complaint is futile.
As the April 28 Order recognized, a court "may deny leave to amend due to undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, and futility of amendment." Doc. No. 69, April 28 Order at 4 (quoting Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d. 522, 532 (9th Cir. 2008)). With regard to undue delay, the court considers "whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990). However, "[d]elay alone does not provide sufficient grounds for denying leave to amend" unless the opposing party suffers prejudice. See Hurn v. Ret. Fund Trust, 648 F.2d 1252, 1254 (9th Cir. 1981). The court considers undue delay and prejudice in turn.
Plaintiff claims he did not "unduly delay[] seeking amendment as the [2015 Survey] disclosing the information to be added [was] completed in recent months." Doc. No. 47, Appeal at 5. Plaintiff's assertions completely misrepresent the history of the case and also demonstrate a poor understanding of the Federal Rules of Civil Procedure.
To be clear, Plaintiff should have determined whether he owned the property at issue before he filed the lawsuit on October 30, 2013. Under Rule 11(b)(3) of the Federal Rules of Civil Procedure, a party filing a complaint certifies "that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery."
Plaintiff's Complaint baldly asserts that "[t]he Crash occurred on land owned by Plaintiff." Doc. No. 1, Compl. ¶ 10.
But by the time Plaintiff's counsel filed the Complaint, any reasonable inquiry under the circumstances would have resolved the question of where the crash occurred. This is especially true because the NTSB Report was both publically-available and it identified the exact coordinates of the crash. See Doc. No. 102-3 ("According to the NTSB, the accident site is located at N° 21 04.050' by W156° 50.578' (as reported at p. 3 of the NTSB Immersive Witness Interview Report)."). Further, Plaintiff's lawyer obviously reviewed the NTSB Report prior to filing the Complaint. See Doc. No. 1, Compl. ¶¶ 20-26 (citing the NTSB Report).
Given the foregoing, it seems evident that Plaintiff "knew or should have known the facts and theories raised by the amendment in the original pleading." Jackson, 902 F.2d at 1388. That is, in light of the evidence available to Plaintiff — specifically, the NTSB Report that Plaintiff utilized when filing his Complaint — Plaintiff should have known whether the crash occurred on Parcel 12, Parcel 13, or both when he filed the Complaint on October 30, 2013. See Doc. No. 1, Compl. Yet Plaintiff waited until February 4, 2016 to file a Motion to Amend, Doc. No. 47 (i.e., well over two years after Plaintiff filed his Complaint). By any reasonable measure, this constituted undue delay. See Jackson, 902 F.2d at 1388 (holding that it was unreasonable to delay filing an amended complaint eight months after obtaining the pertinent facts). See also Schlacter-Jones v. Gen. Tel. of Cal., 936 F.2d 435, 443 (9th Cir. 1990), abrogated on other grounds by Cramer v. Consol. Freightways, Inc., 255 F.3d 683 (9th Cir. 2001) (affirming a district court's denial of a plaintiff's leave to amend brought more than a year after the filing of her complaint due to the "timing of the motion" which was "after the parties had conducted discovery").
The gravity of Plaintiff's delay is made all the more serious by the fact that, on March 18, 2014 — i.e., several months after Plaintiff filed his Complaint — Defendant alerted Plaintiff's counsel to the possibility that, based on the NTSB Report and the "public record hosted by the County of Maui Real Property Tax Division . . . it appears that neither the accident site nor the debris field are located on land owned by [Plaintiff]." See Doc. No. 102-3. Put differently, even though Plaintiff should have known about this issue at the time of filing the Complaint, the record establishes that Plaintiff's counsel indisputably had actual knowledge of this issue by March 18, 2014. And yet Plaintiff waited nearly two years after Defendant alerted Plaintiff to this issue to file an Amended Complaint. This, in and of itself, constitutes undue delay. See Jackson, 902 F.2d at 1388.
But, making matters even worse, Plaintiff waited approximately 5.5 months after his 2015 Survey "revealed that the parcel of land on which the helicopter of land on which the helicopter crashed was not the parcel that Plaintiff had to that point believed" to file his Motion to Amend. Doc. No. 57-1, Tannenbaum Decl. ¶ 10.
In short, Plaintiff knew or should have known the facts underlying his Motion to Amend at the time of filing his Complaint, but Plaintiff chose not to file a Motion to Amend for over two years. That is undue delay. See Jackson, 902 F.2d at 1388. And Plaintiff's belated Motion to Amend is especially egregious in light of the fact that (1) Defendant alerted Plaintiff's counsel to the issue underlying Plaintiff's Motion to Amend nearly two years before Plaintiff filed the Motion to Amend, and (2) Plaintiff chose to sit on the results of the 2015 Survey for approximately 5.5 months before filing the Motion to Amend. Accordingly, the court finds that Plaintiff's Motion to Amend was a clear example of "undue delay." Id.
Plaintiff's Motion to Amend also subjects Defendant to undue prejudice. Plaintiff's Appeal relies heavily on Arizona Dream Act Coalition v. Brewer, 2013 WL 4872107, at *1 (D. Ariz. Sept. 12, 2013) (citing 6 C. Wright, A. Miller, et al., Federal Practice & Procedure § 1487 (2d ed. 1990)), which outlines various ways of evaluating undue prejudice. This reliance is mistaken — Brewer actually highlights some of the many ways that Plaintiff's Motion to Amend, if granted, would unfairly prejudice Defendant. Specifically, Plaintiff's Proposed Amended Complaint seeks to represent unknown — both in terms of name and number — co-tenants to this litigation, thereby creating substantial uncertainty and requiring the Defendant "to engage in significant new preparation." Id. Further, because Plaintiff's Proposed Amended Complaint seeks to collect damages on behalf of Parcel 12 co-tenants, Plaintiff's Proposed Amended Complaint greatly expands Defendant's potential liability and makes it likely that Defendant will suffer "added expense and the burden of a more complicated and lengthy trial." Id. For all these reasons, Plaintiff's belated Motion to Amend would prejudice the Defendant if granted.
In light of the foregoing, the court AFFIRMS the April 28 Order's conclusion that the Motion to Amend should be denied on the grounds that the Motion to Amend was unduly delayed and that it unfairly prejudices the Defendant.
The court also rejects the Motion to Amend on the additional ground that Plaintiff's Proposed Amended Complaint is futile. See LR 74.1. Specifically, Plaintiff's Proposed Amended Complaint seeks to sue on behalf of a disputed number of unnamed Parcel 12 co-tenants. Whether the court views this as a substantive or procedural issue, the court finds that any such amendment would be futile.
To the extent that Plaintiff's Proposed Amended Complaint raises a substantive question regarding Hawaii state property law, the court recognizes that "the extent for recovery for property damage to an entire parcel of land by a tenant in common or co-owner has not been decided" in Hawaii state courts. Doc. No. 81, Appeal at 16. Nonetheless, the court believes that the Hawaii Supreme Court would apply the majority rule to this situation. That is, an individual tenant in common "may generally sue alone" for injunctive relief but, "in actions against outsiders for money damages to the cotenancy . . . joinder of all cotenants as plaintiffs is usually required." 7 Powell on Real Property § 50.06[1] (Michael Allen Wolf ed., LexisNexis Matthew Bender). See also 86 C.J.S. Tenancy in Common
To the extent Plaintiff's Proposed Amended Complaint raises a procedural issue, Plaintiff's proposed representation of the Parcel 12 co-tenants is futile under Rule 17 of the Federal Rules of Civil Procedure. Rule 17 provides that "[a]n action must be prosecuted in the name of the real party in interest" except when a party falls into one of the following seven categories:
Fed. R. Civ. P. 17(a)(1)(A)-(G). Here, Plaintiff does not fit any of the above seven categories with regard to the Parcel 12 co-tenants; although Plaintiff has indicated he intends to act as a trustee on behalf of the Parcel 12 co-tenants, this is very different from Plaintiff being an actual trustee of an express trust with regard to the Parcel 12 co-tenants. See Fed. R. Civ. P. 17(a)(1)(E). And, as previously discussed, it is this court's view that the Hawaii Supreme Court would not provide Plaintiff with additional grounds for seeking substantive relief on behalf of the Parcel 12 co-tenants. See C. Wright and A. Miller, Federal Practice & Procedure § 1544, p. 484 (2010) (explaining that "[t]o determine whether the requirement that the action be brought by the real part in interest has been satisfied, the court must look to the substantive law creating the right being sued upon to see if the action has been instituted by the party possessing the substantive right to relief"); Am. Triticale, Inc. v. Nytco Servs. Inc., 664 F.2d 1136, 1141 (9th Cir. 1981) ("Whether American is the real party in interest under Fed. R. Civ. P. 17(a) in this federal diversity suit is dependant upon whether American is a proper party to maintain this action under applicable state law."). As such, Plaintiff may not sue in his name on behalf of the Parcel 12 co-tenants.
Plaintiff's original Complaint already entitles Plaintiff to seek damages in relation to Parcel 12 as to his proportionate ownership interest. To be clear, if Plaintiff prevails on the claims in his original Complaint, he will be entitled to obtain injunctive relief for the entirety of Parcels 12 and 13 as well as damages for Parcel 13 and Plaintiff's proportional share of damages for Parcel 12 (whatever his proportional share may be). But given the majority rule that a co-tenant cannot recover damages on behalf of another co-tenant, Plaintiff's Proposed Amended Complaint adds nothing substantive to the original Complaint — amendment would be futile.
The April 28 Order denied Plaintiff's Motion to Extend Expert Witness Deadlines, finding that "Plaintiff was not diligent in attempting to meet the original expert disclosure deadline of February 8, 2016." Doc. No. 69, April 28 Order at 10. Plaintiff argues he "timely moved (before February 8, 2016) and offered a plausible reason for his delay in procuring and disclosing his expert's reports," and that this "should have been enough for the Magistrate [Judge] to have found `good cause.'" Doc. No. 81, Appeal at 20. The court disagrees.
The April 28 Order correctly recognized that Plaintiff's Motion to Extend is governed by Rule 16(b)(4) of the Federal Rules of Civil Procedure. Doc. No. 69, April 28 Order at 10. Rule 16(b)(4) provides that a scheduling order "may be modified only for good cause and with the judge's consent." As the April 28 Order explained, the good cause standard "primarily considers the diligence of the party seeking the amendment." Id. (quoting Johnson, 975 F.2d at 608). And, "if the party seeking the modification was not diligent, the court should deny the motion." Id. (citing Jackson, 2012 WL 2190815, at *1). The April 28 Order correctly applied the "good cause" standard and denied Plaintiff's Motion to Extend Expert Witness Deadlines on the ground that Plaintiff was not diligent. Id. Accordingly, the April 28 Order was not contrary to law.
Moreover, none of Plaintiff's various arguments regarding the April 28 Order demonstrate that the Magistrate Judge committed "clear error" as to the facts. Plaintiff argues that his Motion to Extend Expert Witness Deadlines was "reasonable" for various reasons, Doc. No. 81, Appeal at 20-23, but reasonable minds can disagree; Plaintiff fails to affirmatively identify any factual finding in the April 28 Order which rises to the level of "clear error."
In any event, Plaintiff's arguments are not persuasive. The vast majority of Plaintiff's points of error hinge on the mistaken presumption that it was "reasonable" for Plaintiff to wait until Spring 2015 to begin the process of confirming the location of the land at issue in this lawsuit. Specifically, Plaintiff argues that "he obtained new information" about Parcel 12 and "[t]his, by itself, should have been enough for the Magistrate [Judge] to have found `good cause.'" Doc. No. 81, Appeal at 20. This "new" information appears to be Plaintiff's alleged ownership interest in Parcel 12. Id. For example, Plaintiff argues that "[t]he discovery of and need to coordinate with the other joint owners of the property on which the fuel, debris and other contamination was primarily located explained why it was not possible to comply with the original expert deadlines." Id. But, as the April 28 Order correctly states, Plaintiff should have known about this "new" information well in advance of the February 8, 2016 deadline.
Relatedly, Plaintiff also claims that "he was diligent in attempting to `herd' and unify all of the Parcel 12 co-owners and to try to obtain a consensus, which they were requiring in order to act." Doc. No. 111, Reply at 16. See also Doc. No. 81, Appeal at 21-22. This argument is beside the point given that each co-tenant has the right to full use of the co-tenancy's property, as well as the right to bring actions to protect the co-tenancy's realty. See Powell at §§ 50.03 & 50.06. As such, Plaintiff's failure to timely produce expert reports cannot be reasonably attributed to the Parcel 12 co-tenants, and it was not "clear error" or "contrary to law" for the April 28 Order to hold Plaintiff responsible for his delays.
Plaintiff argues that the April 28 Order "overlooked" his counsel's declaration detailing Plaintiff's reasons attempting to justify his delay. Doc. No. 81, Appeal at 22. Plaintiff is wrong. The April 28 Order repeatedly referenced the declaration. See Doc. No. 69 at 2, 3, 5, 7, 9. The fact that the April 28 Order disagreed with Plaintiff's various excuses is neither "clear error" nor "contrary to law."
Plaintiff also argues that his delay was "reasonable" because of his change of counsel. Doc. No. 81, Appeal at 20. But Plaintiff's reliance on Himmelfarb v. JP Morgan Chase Bank Nat. Ass'n, 2011 WL 4498975, at *3 (D. Haw. Sept. 26, 2011), is misplaced. In Himmelfarb, the court found it "reasonable" to grant new counsel three months to seek leave to file a counterclaim. Id. Here, Plaintiff's current counsel entered their appearance on April 30, 2015, Doc. No. 44, and Plaintiff did not file his Motion to Extend Expert Witness Deadlines until approximately ten months later. See Doc. No. 49 (filed on February 5, 2016). Put differently, Plaintiff's counsel took more than three times as long as Himmelfarb deemed reasonable. As such, it was hardly "clear error" for the April 28 Order to find that Plaintiff was not diligent.
Also before the court is Defendant's Motion to Strike. Doc. No. 80. Defendant seeks to preclude Plaintiff from using the following individuals in any capacity: (1) Randall Bell, (2) Jan Medusky and/or Edward Becker of Medusky & Co.; (3) Cheney-Ann Pulama Lima; (4) William Hunter and/or Scott Adamowski of NRC Environmental Services, Inc.; and (5) Jason Grant of Ninyo & Moore Geotechnical Environmental Sciences Consultants (the "Challenged Expert Witnesses"). Doc. No. 80, Motion to Strike at 2. In addition, Defendant seeks to strike Grant as an expert rebuttal witness. Finally, Defendant requests attorneys' fees and costs for their Motion to Strike. Id.
In response, Plaintiff asks the court to reverse the April 28 Order. Doc. No. 103, Opposition at 3. If the court denies this request, however, Plaintiff argues that (1) Grant should nonetheless be allowed because his expert rebuttal report and disclosures were made before the expert rebuttal witness deadline, and (2) Plaintiff's proposed expert witnesses "nonetheless be allowed to give lay testimony pertaining to their first-hand perceptions that are not dependent on their specialized knowledge, skill, training or education and are not dependent on any technical or scientific information falling beyond the understanding of the trier of fact." Id. at 3-4.
The court GRANTS Defendant's request to strike Challenged Expert Witnesses as expert witnesses for Plaintiff. However, Plaintiff may use Grant as a rebuttal expert witness, and the court DENIES Defendant's request that the court preclude Plaintiff from using his proposed expert witnesses as premature. Finally, the request for attorneys' fees and costs associated with the Motion to Strike is DENIED.
Plaintiff has utterly failed to comply with the court's scheduling order as to the Challenged Expert Witnesses.
For the reasons discussed at length above, Plaintiff's delay is not "substantially justified." See Fed. R. Civ. P. 37(c)(1). It's not even close — Plaintiff knew or should have known about his property interest before filing the lawsuit and certainly no later than March 18, 2014, when Defendant alerted Plaintiff to the possibility that he did not own Parcel 12. As the April 28 Order found, there is no good reason why Plaintiff failed to contract for a survey of Parcel 12 until Spring 2015; as a co-tenant, Plaintiff had the right of full access to the land, and Plaintiff had no obligation to receive "permission" from the Parcel 12 co-tenants with regard to the expert disclosures for this case.
Nor was Plaintiff's delay harmless. Had Plaintiff disclosed his expert witnesses "at the times and in the sequence that the court order[ed]," Fed. R. Civ. P. 26(a)(2)(D), Defendant could have hired the appropriate expert witnesses to effectively engage the Challenged Expert Witnesses. Specifically, as Defendant argues:
Doc. No. 80, Motion to Strike at 16. Plaintiff's arguments to the contrary are unpersuasive. Plaintiff claims that his delay caused Defendant "no prejudice or surprise," Doc. No. 103, Opposition at 8, but this is not plausible where, as here, Plaintiff not only failed to produce a substantive report for any of the Challenged Expert Witnesses before the deadline, but Plaintiff also failed to even disclose the identity of Becker, Lima, Adamowski and Grant until after the deadline. See, e.g., Yeti by Molly, Ltd., 259 F.3d at 1106; Garcia, 2008 WL 4531657, at *3.
Because Plaintiff failed to meet his burden of proving that his untimely disclosures with regard to the Challenged Expert Witnesses were either substantially justified or harmless, sanctions under Rule 37(c)(1) are warranted. Toward that end, the court will not allow Plaintiff to use the Challenged Expert Witnesses as experts.
Notwithstanding the foregoing, the court finds that Plaintiff properly disclosed Grant as a rebuttal expert witness. Specifically, Plaintiff timely disclosed Grant for the purpose of "rebutting some of the statements and conclusions in Mr. Randall's March 8, 2016 Report, related to, among other things, the unreliability of Defendant's prior testing and errors communicated to the State." Doc. No. 64 at 3. See also Doc. No. 38, First Amended Scheduling Order at 3. Defendant complains that Plaintiff offered Grant's belated expert report in support of this disclosure, Doc. No. 61, but it is unclear why this matters — Grant's expert report, which was filed on March 18, 2016, Doc. No. 61, was timely for the purpose of rebuttal witness disclosures. See Doc. No. 38, First Amended Scheduling Order at 2. As such, Plaintiff may use Grant and his expert report for the limited purpose of rebutting or contradicting Randall's testimony or expert report. See Doc. No. 38, First Amended Scheduling Order at 2 (providing that a rebuttal witness can be used "solely to contradict or rebut the evidence of a witness identified by another party").
The court denies Defendant's request to strike the Expert Witnesses as lay witnesses without prejudice on the grounds that this determination is premature. But, to be clear, if the Challenged Expert Witnesses are offered as lay witnesses, they will be strictly limited to providing testimony that is permitted under the Federal Rules of Evidence. For example, a lay witness may only offer opinions that are "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701. Regardless, the court will consider objections, if any, to the Challenged Expert Witnesses testifying in a non-expert capacity at trial.
Finally, the court denies Defendant's request for attorneys' fees and costs with regard to this Motion. The court may have been more receptive to this request had Defendant not filed its Motion to Extend Dispositive Motions Deadline which, for reasons discussed below, the court views as borderline frivolous. Given these circumstances, the court will not award Defendant attorneys' fees and costs with regard to Defendant's Motion to Strike.
The final motion before the court is Defendant's Motion to Extend Dispositive Motions Deadline. Doc. No. 115. Defendant argues that "good cause" exists to extend the dispositive motions deadline by several months because Defendant "made numerous and repeated requests that Plaintiff produce documents evidencing his interest in Parcel 12." Doc. No. 115, Def.'s Motion to Extend Dispositive Motions Deadline at 8. Defendant says that it wasn't until June 7, 2016, during Plaintiff's second deposition — well after the March 9, 2016 deadline for dispositive motions, Doc. No. 38 — that "Plaintiff admitted that he does not hold title to the Crash Site." Doc. No. 115, Def.'s Motion to Extend Dispositive Motions Deadline at 9. Defendant argues it was diligent because it "filed the present Motion . . . within just nine days of Plaintiff's admission that he does not have standing to pursue alleged damages to the Crash Site." Id. at 8.
The court sees no reason why Defendant needed to wait until Plaintiff's second deposition to file a motion for summary judgment regarding Plaintiff's ownership interest in Parcel 12. The record establishes that Plaintiff's statements during his second deposition were hardly a surprise to Defendant. Indeed, Defendant's own March 18, 2014 letter makes clear that Defendant has long-known the exact coordinates of the accident site (based on the NTSB Report) and argued that "neither the accident site nor the debris field are located on land owned by [Plaintiff]. See Doc. No. 102-3. This evidence alone would have been enough for Defendant to file a plausible summary judgment motion, and Defendant has possessed this evidence for over two years. Moreover, as early as March 2, 2016 — i.e., before the dispositive motions deadline — Defendant also knew that the public record did not list Plaintiff as one of the owners of Parcel 12. See Doc. No. 54-3 (3/2/16 printout of the public record hosted by the County of Maui Real Property Tax Division providing the names of Parcel 12 owners which do not include Plaintiff).
Based on these facts, the court finds that Defendant could have moved for summary judgment well before the deadline for filing dispositive motions. As such, Defendant has failed to demonstrate good cause for waiting until Plaintiff's disclosures in his second deposition. Accordingly, the court DENIES Defendant's Motion to Extend Dispositive Motions Deadline.
For the foregoing reasons, the court (1) AFFIRMS the April 28 Order, Doc. No. 69; (2) GRANTS in part and DENIES in part the Motion to Strike, Doc. No. 80; and (3) DENIES Defendant's Motion to Extend, Doc. No. 115.
IT IS SO ORDERED.
The Federal Rules of Civil Procedure provide that: "A party must make these [expert testimony] disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made . . . at least 90 days before the date set for trial or for the case to be ready for trial." Fed. R. Civ. P. 26(a)(2)(D)(i). That is, the 90-day provision is irrelevant where, as here, there is a stipulation or court order. See Doc. No. 38.
Plaintiff can hardly claim ignorance of the court's scheduling order in this case. Indeed, a portion of Plaintiff's Appeal is dedicated to the April 28 Order's denial of Plaintiff's Motion to Extend Expert Deadlines. See Doc. No. 81. And given the straightforward nature of Rule 26(a)(2)(D), Plaintiff's suggestion that the 90-day provision has any applicability appears to be willfully misleading, and the court flatly rejects it.
