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Brown v. Porter McGuire Kiakona & Chow, LLP

United States District Court, D. Hawaii

November 3, 2017

BENITA J. BROWN; CRAIG CONNELLY; KRISTINE CONNELLY, individually and on behalf of all others similarly situated, Plaintiffs,
v.
PORTER MCGUIRE KIAKONA & CHOW, LLP; EKIMOTO & MORRIS, LLLC; AOAO TERRAZZA/ CORTEBELLA/LAS BRISAS/ TIBURON; AOAO KO OLINA KAI GOLF ESTATES AND VILLAS; DOE DEFENDANTS 1-100, Defendants.

         ORDER GRANTING: (1) DEFENDANTS AOAO TERRAZZA/CORTEBELLA/LAS BRISAS/TIBURON'S MOTION TO SEVER THE FIRST-NAMED PLAINTIFF BENITA J. BROWN, FIRST-NAMED DEFENDANT PORTER MCGUIRE KIAKONA & CHOW, LLP, AND THIRD-NAMED DEFENDANTS AOAO TERRAZZA/CORTEBELLA/LAS BRISAS/TIBURON; (2) DEFENDANT PORTER MCGUIRE KIAKONA & CHOW, LLP'S JOINDER; AND (3) DEFENDANT EKIMOTO & MORRIS, LLLC'S JOINDER

          Kevin S.C. Chang, United States Magistrate Judge

         On June 14, 2017, Defendants The Association of Apartment Owners of Terrazza/Cortebella[1]/Las Brisas/Tiburon (“Terrazza”) filed a Motion to Sever the First-Named Plaintiff Benita J. Brown (“Brown”), First-Named Defendant Porter McGuire Kiakona & Chow, LLP (“Porter”), and Third-Named Defendants Terrazza. Porter and Defendant Ekimoto & Morris, LLLC (“Ekimoto”) filed Joinders on July 24, 2017 and July 26, 2017, respectively. On July 24, 2017, Plaintiffs filed an Opposition. Terrazza filed a Reply on August 1, 2017.

         After careful consideration of the parties' submissions, counsel's arguments, and the applicable law, the Court HEREBY GRANTS the Motion and Joinders for the reasons articulated below.

         BACKGROUND

         On August 10, 2016, Brown and Plaintiffs Craig and Kristine Connelly (collectively the “Connellys”) commenced this action, which they characterize as a plaintiff and defendant class action, challenging the non-judicial foreclosures of their respective properties pursuant to Part I. Brown's unit at Las Brisas in Ewa Beach, purchased in 2004, was foreclosed upon by Terrazza, through Porter. Compl. at ¶ 8. The Connellys' unit at Ko Olina Kai Golf Estates & Villas, purchased in March 2006, was foreclosed upon by Defendant Association of Apartment Owners of Ko Olina Kai Golf Estates and Villas(“Ko Olina”), through Ekimoto. Id. at ¶ 9.

         Plaintiffs assert the following causes of action: 1) declaratory relief; 2) wrongful foreclosure; 3) violation of the Fair Debt Collection Practices Act; and 4) unfair and deception acts or practices.

         ANALYSIS

         Defendants request that Brown's action against Terrazza and Porter be severed because joinder is improper. Defendants argue that Brown's claims against Terrazza and Porter are unrelated to the Connellys' claims against Ko Olina and Ekimoto. Plaintiffs proffer that because Federal Rule of Civil Procedure (“Rule”) 23 governs, severance is precluded. Alternatively, Plaintiffs submit that the Court should permit joinder pursuant to Rule 20.

         Under Rule 20(a)(1), permissive joinder of plaintiffs “is proper if (1) the plaintiffs assert[ ] a right to relief arising out of the same transaction and occurrence and (2) some question of law or fact common to all the plaintiffs will arise in the action.” Visendi v. Bank of Am., N.A., 733 F.3d 863, 870 (9th Cir. 2013) (citation and quotations omitted) (alteration in original). Permissive joinder of defendants is appropriate if a “‘right to relief is asserted against [the defendants] . . . with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences, ' and also if there is a ‘question of law or fact common to' the defendants.” Rush v. Sport Chalet, Inc., 779 F.3d 973, 974 (9th Cir. 2015) (quoting Fed.R.Civ.P. 20(a)(2)) (alteration in original); Waterfall Homeowners Ass'n v. Viega, Inc., 279 F.R.D. 586, 589 (D. Nev. 2012) (citing League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977); Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997)) (“In order for joinder to be proper under Rule 20(a) both requirements of the rule, the same transaction or occurrence and common issues of law or fact, must be satisfied.”).

         “If the test for permissive joinder is not satisfied, a court, in its discretion, may sever the misjoined parties, so long as no substantial right will be prejudiced by the severance.” Coughlin, 130 F.3d at 1350; Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000) (“Under Rule 20(b), the district court may sever the trial in order to avoid prejudice.”); see also Fed.R.Civ.P. 21 (“The court may also sever any claim against a party.”). Whether or not to sever is within the court's broad discretion. Broadcom Corp. v. Sony Corp., No. SACV161052JVSJCGX, 2016 WL 9108039, at *2 (C.D. Cal. Dec. 20, 2016). The interest of preserving efficient judicial administration controls, not the parties' wishes. Id. (quoting Viasat, Inc. v. Space Sys./loral, Inc., No. 12-CV-00260-H-WVG, 2012 WL 12844702, at * *2 (S.D. Cal. Aug. 23, 2012) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2388 (3d ed. 2012)).

         Five factors are considered in deciding whether to sever a case:

whether (1) the claims arise out of the same transaction or occurrence; (2) the claims present some common questions of law or fact; (3) settlement of the claims or judicial economy would be facilitated; (4) prejudice would be avoided if severance were granted; and (5) different ...

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