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Bennett-Bagorio v. The City and County of Honolulu

United States District Court, Ninth Circuit

January 28, 2014



DERRICK K. WATSON, District Judge.


Before the Court is Defendant City and County of Honolulu's ("City"), on behalf of the Honolulu Police Department ("HPD") and the City and County of Honolulu Office of Corporation Counsel ("Corp. Counsel") (collectively, "City Defendants"), Motion to Strike and/or Dismiss the First Amended Complaint, filed on February 20, 2013, and for Sanctions. Plaintiffs Cassandra Bennett-Bagorio, Shermon Dean Dowkin, and Federico Delgadillo Martinez, Jr. (collectively, "Plaintiffs") opposed the Motion. A hearing was held on August 23, 2013. After careful consideration of the supporting and opposing memoranda, the accompanying documentation, and the relevant legal authority, the Motion to Strike and/or Dismiss ("Motion") is hereby GRANTED. The Motion for Sanctions is DENIED. Plaintiffs' First Amended Complaint is DISMISSED WITH PREJUDICE.


Plaintiffs initiated the present action on February 11, 2013 and filed the operative First Amended Complaint ("1AC") on February 20, 2013. The City Defendants' Motion focuses on the similarity of this action to a separate action brought by the same Plaintiffs, Dowkin v. Honolulu Police Department, et al., CV 10-00087 LEK-RLP (" Dowkin "), which is presently stayed before District Judge Leslie Kobayashi. The Court will briefly recount the background of Dowkin and the allegations of the 1AC in the present action.

The history of Dowkin is covered at length in Magistrate Judge Puglisi's Order (1) Denying Plaintiffs' Motion for Leave to File a Fourth Amended Complaint; (2) Denying Plaintiffs' Motion for Leave to Supplement Their Reply; (3) Denying in Part and Taking Under Advisement in Part Plaintiffs' Motion to Modify Rule 16 Scheduling Order; and (4) For Plaintiffs' Counsel to Show Cause Why They Did Not Violate FRCP 11(b) (" Dowkin 4AC Order"). Dowkin, Dkt. no. 338, July 3, 2012. Magistrate Judge Puglisi summarized the alleged conduct leading to the claims in Dowkin as follows:

On February 22, 2010, three Honolulu police officers brought this action against their employer, the Honolulu Police Department ("HPD"), and thirteen supervisors, officers, and HPD personnel for alleged race and gender discrimination, retaliation, and disparate treatment. Dowkin, who allegedly is the only African-American supervisor in HPD's Regional Patrol Bureau District 4, First Watch ("District 4"), and Delgadillo, who is allegedly the only Mexican-American officer in District 4, claim that, between 2003 and 2008, their supervisors and fellow officers gave direct orders and conspired not to provide them protective "cover" or "backup" when Dowkin and Delgadillo arrested persons in the field. Dowkin and Delgadillo's requests for assistance were allegedly "routinely ignored, " as Defendants were purportedly "motivated by racial prejudice." Dowkin and Delgadillo also allege that they were demoted to "junior officer status" after returning to their unit from a special duty assignment.
On August 7, 2008, Dowkin, on behalf of himself and Delgadillo, delivered a written complaint, alleging race discrimination by HPD to Defendant Simmons, Commander of District 4. After Dowkin spoke with Defendant Simmons about the disparate treatment, Defendant Simmons allegedly took no action in response to the complaint. Plaintiffs allege that, although the filing of the complaint was protected activity, retaliation immediately commenced.
On October 14, 2008, Bennett-Bagorio was allegedly summoned by HPD Human Resources to provide testimony regarding Dowkin and Delgadillo's race discrimination complaint. Bennett-Bagorio's testimony allegedly supported Dowkin and Delgadillo's claims of race discrimination and purported failure to provide protective cover on traffic stops. Bennett-Bagorio alleges that, as a result of her testimony and her gender, Defendants retaliated against her.

Dowkin 4AC Order at 2-4.

In Dowkin, Plaintiffs filed three amended complaints, but leave was denied to file a fourth amended complaint ("4AC"). The changes to each complaint and the protracted procedural history of each amendment are discussed in the Dowkin 4AC Order, and the Court does not repeat that discussion here. Dowkin 4AC Order at 4-9. The Court notes, however, the changes from the Third Amended Complaint to the proposed 4AC in Dowkin, as described by Magistrate Judge Puglisi:

... Plaintiffs seek leave to file a Fourth Amended Complaint ("FAC"), in the form proposed in Exhibit A to their Motion. The FAC asserts twelve causes of action: (1) Title VII; (2) Title VI; (3) violations of the Hawaii Civil Rights Law; (4) general negligence, including negligent training and supervision; (5) IIED; (6) NIED; (7) conspiracy to interfere with civil rights; (8) civil conspiracy against rights and to tamper with witnesses; (9) conspiracy against rights (18 U.S.C. § 241); (10) tampering with a witness; (11) 42 U.S.C. § 1983; and (12) neglect to prevent conspiracy. The FAC includes three primary changes from the TAC. First, Plaintiffs added Deputy Chief Dave Kajihiro and Denise Tsukayama as Defendants. Second, Plaintiffs included additional allegations (¶¶ 84-125) supposedly based upon facts revealed by Defendants after Plaintiffs requested leave of court to file their TAC, as well as 37 exhibits, purportedly confirming Plaintiffs' conspiracy claims. Finally, Plaintiffs brought four new claims against Defendants.

Dowkin 4AC Order at 9. Ultimately, Judge Puglisi denied Plaintiffs leave to file the 4AC, finding, among other things, that the proposed 4AC violated Fed.R.Civ.P. 8(a) due to its prolixity (the 4AC was 134 pages long with an additional 213 pages from 37 exhibits):

Plaintiffs' proposed FAC is neither short nor plain and again is unduly long and confusing, in addition to being argumentative, largely irrelevant, and conclusory.... Rather than straightforwardly stating their claims and allegations, Plaintiffs would burden Defendants with the onerous task of combing through a 347-page pleading just to prepare an answer that admits or denies such allegations, and to determine what claims and allegations must be defended or otherwise litigated.

Dowkin 4AC Order at 15-16. Judge Susan Mollway[1] affirmed the Dowkin 4AC Order on appeal. Dowkin, Dkt. no. 393, August 27, 2012. Plaintiffs then sought certification to take an interlocutory appeal of the Dowkin 4 AC Order, which Judge Mollway denied. Dowkin, Dkt. no. 412, September 25, 2012. On January 17, 2013, the Court stayed Dowkin, pending a decision from the Hawaii Supreme Court related to individual liability under HRS § 378-2. Id., Dkt. no. 444, January 17, 2013. Plaintiffs initiated this action approximately three weeks later.

As in the proposed 4AC in Dowkin, the 1AC in this action alleges twelve claims:

1. Violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2 et seq., race and gender discrimination in the terms and conditions of employment (all Plaintiffs against City Defendants). 1AC ¶¶ 91-95.
2. Violations of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq., race, color and national origin discrimination under federal assisted programs (all Plaintiffs against City Defendants). 1AC ¶¶ 96-101. including negligent training and supervision (against all Defendants except Gratz) and negligent retention (against City Defendants, Correa, and Kealoha). 1AC ¶¶ 102-108.
4. Intentional Infliction of Emotional Distress (all Plaintiffs against all Defendants). 1AC ¶¶ 109-113.
5. Negligent Infliction of Emotional Distress (Plaintiffs Dowkin and Bennett-Bagorio against all Defendants). 1AC ¶¶ 114-120.
6. Violations of 42 U.S.C. § 1985, conspiracy to interfere with civil rights (all Plaintiffs against all Defendants). 1AC ¶¶ 121-142.
7. Civil conspiracy against rights and to tamper with witnesses (all Plaintiffs against all ...

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