The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge
ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS AS MODIFIED, LIFTING THE STAY, AND RECOMMITTING DEFENDANT OSTENDORP'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSELS TO THE MAGISTRATE JUDGE PROCEDURAL BACKGROUND
This cases arises out of the alleged illegal seizure and killing of Plaintiff Warne Keahi Young's ("Plaintiff") seventeen dogs by Defendant Hawaii Island Humane Society S.P.C.A. ("HIHS") and its agents in late 2009. The Magistrate Judge's Findings and Recommendation and Order at issue arise out of Defendant Michael G.M. Ostendorp's ("Ostendorp") alleged legal representation of Plaintiff and a retainer agreement between Ostendorp and Plaintiff's mother, Roberta Kawena Young ("Defendant Kawena Young"), that included a dispute resolution clause.
On September 23, 2011, Plaintiff filed suit against County of Hawaii; HIHS; Donna Whitaker, executive director of HIHS; Starr K. Yamada, Humane Officer; Ostendorp; Carrol Cox; Darleen R.S. Dela Cruz; Roberta Kawena Young; and Doe Defendants 1-50 (collectively, "Defendants"). See Doc. No. 1. On January 9, 2012, Plaintiff filed a First Amended Complaint. See Doc. No. 8. Plaintiff filed a Second Amended Complaint ("Sec. Am. Compl.") on March 30, 2012. Doc. No. 44.
Plaintiff's Second Amended Complaint alleges the following twenty claims: violations of 42 U.S.C. Â§ 1983 (Counts I, II, and III); violations of equal protection (Count IV); negligence (Count V); negligent training and/or supervision (Count VI); vicarious liability of County of Hawaii (Count VII); vicarious liability of HIHS (Count VIII); breach of contract (Count IX); legal malpractice (Count X); breach of fiduciary duty (Count XI); failure to disclose conflict of interest (Count XII); fraud and misrepresentation (Count XIII); undue influence (Count XIV); civil conspiracy (Count XV); negligent and/or intentional infliction of severe emotional distress (Count XVI); fraud (Count XVII); negligence/gross negligence (Count XVIII); conversion (Count XIX); and trespass (Count XX).*fn1 Sec. Am. Compl. Â¶Â¶ 92-174.
On February 17, 2012, Ostendorp filed a motion to compel mediation and/or arbitration ("Ostendorp's Motion to Compel"), to stay current proceedings ("Ostendorp's Motion to Stay"), and a motion to disqualify Plaintiff's counsels ("Ostendorp's Motion to Disqualify"), along with a supporting memorandum.*fn2 *fn3 Doc. No. 24. Defendants Cox, an investigator employed by Ostendorp, and Cruz, a notary public hired by Ostendorp, filed joinders in Ostendorp's Motions. Doc. Nos. 30-31; see Sec. Am. Compl. Â¶Â¶ 7-8. On March 6, 2012, Plaintiff filed an opposition to Ostendorp's Motions ("Pl.'s Opp'n").*fn4
Doc. No. 38. Ostendorp filed a reply ("Ostendorp's Reply") on March 20, 2012.*fn5 *fn6 Doc. No. 40.
On April 3, 2012, the Magistrate Judge issued a findings and recommendation to deny Ostendorp's Motion to Compel (the "F&R"); and order (1) granting in part and denying in part Ostendorp's motion to stay the current proceedings and (2) denying Ostendorp's motion to disqualify Plaintiff's counsels (the "Magistrate's Order"). Doc. No. 45.
On April 17, 2012, Ostendorp filed an objection to the F&R and the Magistrate's Order ("Ostendorp's Obj.").*fn7 Doc. No. 49. The Court finds this matter suitable for disposition without a hearing pursuant to Local Rule 7.2(d).
On September 29, 2009, Defendant HIHS executed a search warrant at Plaintiff's residence and seized seventeen of his dogs. Sec. Am. Compl. Â¶Â¶ 28-30. Plaintiff alleges that on October 1 and 2, 2009, he and his Mother, Defendant Kawena Young, consulted with Ostendorp and Cox to obtain legal advice for Plaintiff regarding the HIHS's entry into Plaintiff's home and seizure of his dogs, and potential criminal charges against Plaintiff. Id. Â¶Â¶ 31, 34. Allegedly, on October 2, 2009, Ostendorp, acting as Plaintiff's attorney, contacted the Hilo prosecutor's office. Id. Â¶ 32. Ostendorp also allegedly contacted Plaintiff's psychologist to discuss Plaintiff's legal matters. Id. Â¶ 33. Plaintiff alleges that Ostendorp and Cox traveled with him to the Big Island for further consultation and investigation of his legal difficulties with HIHS. Id. Â¶ 36.
On October 7, 2009, Ostendorp and Defendant Kawena Young entered into a retainer agreement ("the retainer agreement"). Ostendorp's Mot. Ex. A, at 1. The retainer agreement stated that Ostendorp would be "representing [Defendant Kawena Young] in protecting [her] financial assets, reducing [her] financial liabilities and to help to keep Warne Keahi Young out of jail." Id. The agreement contained the following alternative dispute resolution provision: As we have discussed, if you ever have any questions regarding this representation, we encourage you to ask them promptly and we are confident that appropriate answers can be provided to satisfy your inquiry. If that does not occur, and you believe that such a problem needs formal resolution, the following discussion is how we will resolve such a problem.
First, we will jointly undertake mediation. Unless we agree to the contrary, the Dispute Prevention & Resolution office in Honolulu will choose the mediator. We will jointly in good faith participate in at least one mediation session, scheduled by the mediator, prior to taking any further action.
Second, if mediation does not resolve the problem, then with the exception of injunctive or other equitable action, all disputes must be submitted to binding arbitration. As was true for mediation, the arbitration shall be conducted under then-existing rules of Dispute Prevention & Resolution office in Honolulu.
The bottom of the retainer agreement contains Ostendorp's signature, the statement that "Roberta Kawena Young hereby engages the Law Office of Michael G.M. Ostendorp as his [sic] legal counsel and otherwise agrees to honor the terms hereof," and Defendant Kawena Young's signature, respectively. Id.
On October 7, 2009, Ostendorp allegedly drafted a broad power of attorney dated September 12, 2009, that contained Plaintiff's forged signature and designated Defendant Kawena Young as his attorney-in-fact. Sec. Am. Compl. Â¶Â¶ 64-66.
Plaintiff alleges that Defendant Kawena Young used the power of attorney to complete an HIHS animal surrender policy form, which Ostendorp then submitted to HIHS. Id. Â¶Â¶ 66-68. Thereafter, HIHS allegedly killed Plaintiff's dogs. Id. Â¶ 69.
Plaintiff alleges that on October 8, 10, and 12, 2009, he and Defendant Kawena Young met with Ostendorp to discuss Plaintiff's legal matters. Id. Â¶Â¶ 44, 46-47. On October 15, 2009, Defendant Kawena Young terminated her attorney-client relationship with Ostendorp via certified mail. Id. Â¶ 49. On October 19, 2009, Ostendorp confirmed this termination via a letter addressed to Defendant Kawena Young. Id. Â¶ 50. Ostendorp attached a billing statement addressed to "Roberta K. Young/Warne K. Young (10/1/09-10/15/09)" to the letter. Id.
On October 29, 2009, Plaintiff filed a complaint against Defendants Ostendorp and Cox with the Office of Disciplinary Counsel. Ostendorp's Mot. Ex. C. Ostendorp filed a response on November 18, 2009, in which he stated that "Keahi Young was never my client." Pl.'s Opp'n Ex. 2. Ostendorp stated that Plaintiff had his own attorney of record and that his "role in keeping [Defendant Kawena Young's] son out of jail did not include representing Keahi." Id. He further stated that his negotiations with HIHS were on behalf of Defendant Kawena Young and were to "address the issues of her property ...