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Jou v. Adalian

United States District Court, D. Hawaii

July 13, 2017

EMERSON M.F. JOU, M.D., Plaintiff,


          J. Michael Seabright Chief United States District Judge


         Plaintiff Emerson M.F. Jou (“Plaintiff” or “Jou”) moves for summary judgment on his claim for Intentional Spoliation of Evidence (“Spoliation”) against Defendant Gregory M. Adalian (“Defendant” or “Adalian”) as set forth in the Second Amended Complaint (“SAC”). He also seeks summary judgment as to certain affirmative defenses raised in Defendant's Answer.

         Based on the following, because genuine issues of material fact exist, Plaintiff's Motion is DENIED.


         The court need not reiterate the background of this long-running and complex dispute; the background is set forth in detail in two of this court's prior Orders: (1) a February 5, 2015 Order in a related case, Jou v. Adalian, Civ. No. 09-00226 JMS-BMK (D. Haw.), that denied Plaintiff's motion seeking an order to arrest Defendant for repeated failures to pay an outstanding judgment, see Jou v. Adalian, 2015 WL 477268 (D. Haw. Feb. 5, 2015) (“Jou I”); and (2) a September 1, 2016 “Order Granting Defendant's Motion for Judgment on the Pleadings, with Leave to Amend Count Three” (the “September 1, 2016 Order”) in this suit, see Jou v. Adalian, 2016 WL 4582042 (D. Haw. Sept. 1, 2016) (“Jou II”).

         Generally, two types of claims were at issue in Jou I and Jou II: (1) those “with regard to the Notes” between Jou and Adalian, and (2) those “arising out of the SCV Limited Partnership or its affairs.” Jou II, 2016 WL 4582042, at *2 n.3. The September 1, 2016 Order dismissed with prejudice, on res judicata grounds, Plaintiff's three claims in the First Amended Complaint (“FAC”) that were “with regard to the Notes” -- those three claims sounding in settlement fraud arising out of a July 6, 2010 settlement agreement were or could have been litigated in the previous suit (Civ. No. 09-00226 JMS-BMK). See Id. at *17. But the September 1, 2016 Order also granted Plaintiff leave to amend his vague and potentially time-barred claim for Spoliation -- a claim that could plausibly have “arisen out of the SCV Limited Partnership or its affairs” (and thus not be barred by res judicata). Id. at *20. That is, although the FAC alleged Spoliation in general terms, the claim was unclear and time-barred as it was pled in the FAC.[1]Id.

         Accordingly, on September 22, 2016, Plaintiff filed the SAC, which asserts a single count for Spoliation, which contends (among other assertions) that Plaintiff did not know Defendant had “spoliated SCV Records” until August 9, 2011 and September 7, 2011 (within a six-year limitations period and when Defendant allegedly knew of a potential lawsuit regarding the SCV Limited Partnership). SAC ¶ 9C, ECF No. 68. Specifically, the SAC alleges that Defendant “intentionally destroyed, concealed, or otherwise spoliated evidence designed to disrupt or defeat Plaintiff's potential lawsuit, ” id. ¶ 10, and that Plaintiff only discovered such spoliation in August and September of 2011 during Defendant's bankruptcy proceedings in the Bankruptcy Court for the Middle District of Pennsylvania. Id. ¶¶ 10B, 10C. Plaintiff also alleges in some detail that “[t]here was a causal relationship between the acts of spoliation and the inability to prove the . . . claims in a lawsuit[, ]” id. ¶ 17, and that he suffered damages as a result of the alleged spoliation, id. ¶ 18.

         On May 4, 2017, Plaintiff filed his “Renewed Motion for Summary Judgment/Partial Summary Adjudication, ” seeking:

• “[S]ummary judgment in Plaintiff's favor on the dispute of liability, and partial summary judgment on a disputed item of damages, with the remaining damages in dispute to be for the trier of fact”;
• “FRCP 56(a) partial summary judgment in Plaintiff's favor on some of Defendant Gregory Adalian's affirmative defense[s], including Fourth (res judicata/collateral estoppel); Eighth (standing); Sixteenth (statutes of limitations)”; and
• “[A]n FRCP 56(g) Order ‘stating any material fact -- including an item of damages or other relief -- that is not genuinely in dispute and treating the fact as established in the case.'”

Pl.'s Mot. at 2, ECF No. 127. Defendant filed his Opposition on June 2, 2017, ECF No. 134, and Plaintiff filed his Reply on June 16, 2017, ECF No. 147.[2] The court decides the Motion under Local Rule 7.2(d) without an oral hearing.


         Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

         “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has carried its burden under Rule 56[(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citation and internal quotation marks omitted).

         “An issue is ‘genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material' only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmoving party. Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1184 (9th Cir. 2016).


         A. Intentional Spoliation of Evidence

         As explained in the September 1, 2016 Order, it is unclear whether a cause of action for Spoliation exists under Hawaii law. No Hawaii case has adopted the tort, and Matsuura v. E.I. du Pont de Nemours & Co., 102 Haw. 149, 73 P.3d 687 (2003), explicitly found it unnecessary to decide whether such a tort exists in Hawaii common law. Id. at 168, 73 P.3d at 706. Matsuura, however, recognized the following elements of such a tort in other jurisdictions, and explained why those elements would not be met under the facts of that case:

The few jurisdictions that recognize a cause of action for intentional spoliation (as opposed to negligent spoliation[]) of evidence require a showing of the following elements: (1) the existence of a potential lawsuit; (2) the defendant's knowledge of the potential lawsuit; (3) the intentional destruction of evidence designed to disrupt or defeat the potential lawsuit; (4) disruption of the potential lawsuit; (5) a causal relationship between the act of spoliation and the inability to prove the lawsuit; and (6) damages.

Id. at 166, 73 P.3d at 704 (citations omitted). Essentially, Matsuura assumed Spoliation's basic elements from “the few jurisdictions that recognize” the tort, but found no reason to adopt the cause of action because the plaintiffs ...

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