United States District Court, D. Hawaii
EMERSON M.F. JOU, M.D., Plaintiff,
GREGORY M. ADALIAN, Defendant.
ORDER DENYING PLAINTIFF'S “RENEWED MOTION
FOR SUMMARY JUDGMENT/PARTIAL SUMMARY ADJUDICATION AND/OR AN
FRCP 56(g) ORDER, ” ECF NO. 127
Michael Seabright Chief United States District Judge
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
on the following, because genuine issues of material fact
exist, Plaintiff's Motion is DENIED.
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)
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.Id.
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.
4, 2017, Plaintiff filed his “Renewed Motion for
Summary Judgment/Partial Summary Adjudication, ”
• “[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. The court decides
the Motion under Local Rule 7.2(d) without an oral hearing.
STANDARD OF REVIEW
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).
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
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).
Intentional Spoliation of Evidence
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 ...