United States District Court, D. Hawaii
KENNETH LAKE, CRYSTAL LAKE, HAROLD BEAN, MELINDA BEAN, KYLE PAHONA, ESTEL PAHONA, TIMOTHY MOSELEY, ASHLEY MOSELEY, RYAN WILSON, and HEATHER WILSON Plaintiffs,
OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC.; and DOE DEFENDANTS 1-10, Defendants.
ORDER STRIKING PLAINTIFFS' TRESPASS
E. Kobayashi, United States District Judge.
September 14, 2016, Plaintiffs Kenneth Lake, Crystal Lake,
Harold Bean, Melinda Bean, Kyle Pahona, Estel Pahona, Timothy
Moseley, Ashley Moseley, Ryan Wilson, and Heather Wilson
(“Plaintiffs”) filed their Complaint in state
court. Defendants Ohana Military Communities, LLC
(“Ohana”) and Forest City Residential Management,
LLC (“Forest City” and collectively,
“Defendants”) filed their Notice of Removal on
October 13, 2016. [Dkt. no. 1.] On August 1, 2017, the Order
Granting in Part and Denying in Part Defendants' Motion
to Dismiss (“8/1/17 Order”) was issued. [Dkt. no.
The 8/1/17 Order dismissed Plaintiffs' unfair and
deceptive acts or practices claim (Count IV), unfair methods
of competition claim (Count IX), and trespass claim (Count X)
with prejudice, and dismissed all of the remaining claims
without prejudice. Plaintiffs were ordered to file an amended
complaint by September 6, 2017. 2017 WL 4563079, at *12. The
deadline was later extended to September 20, 2017. [Dkt. no.
filed a motion for reconsideration of the 8/1/17 Order
(“Motion for Reconsideration”), and the motion
was granted in part and denied in part in an order filed on
October 12, 2017 (“10/12/17 Order”). [Dkt. nos.
64 (Motion for Reconsideration), 78 (10/12/17
Order). Plaintiffs' Motion for Reconsideration
was granted insofar as the portion of the 8/1/17 Order
dismissing Plaintiffs' trespass claim with prejudice was
withdrawn, and Plaintiffs were allowed to file a motion
seeking leave to file an amended trespass claim
(“Motion for Leave”). Plaintiffs were given until
October 27, 2017 to file their Motion for Leave. 10/12/17
Order, 2017 WL 4560123, at *3; see also EO: Court
Order Ruling on Pltfs.' Motion for Reconsideration of
Order Granting in Part and Denying in Part Defs.' Motion
to Dismiss, filed 9/18/17 (dkt. no. 74) (“9/18/17 EO
Ruling”), at 1 (“The Motion for Reconsideration
is GRANTED insofar as: Plaintiffs' trespass claim is
dismissed WITHOUT PREJUDICE; and Plaintiffs may file a motion
seeking leave to file an amended trespass claim.”
(emphases in original)).
filing a Motion for Leave, Plaintiffs included a trespass
claim in their First Amended Complaint. [Filed 9/20/17 (dkt.
no. 75), at ¶¶ 147-55.] Plaintiffs contend that it
was not necessary for them to file a Motion for Leave
because, according to the 9/18/17 EO Ruling: “a) the
[trespass] claim was dismissed without prejudice; b) and the
deadline to file the [First Amended Complaint] was
open.” [Opp. to Defs.' Motion to Dismiss First
Amended Complaint, filed 12/13/17 (dkt. no. 79), at 4.]
inclusion of the trespass claim in the First Amended
Complaint violated both the 9/18/17 EO Ruling and the
10/12/17 Order. The 9/18/17 EO Ruling stated: “The
ruling on the Motion for Reconsideration does not
affect Plaintiffs' deadline to file their
amended complaint, which remains September 20,
2017. If the magistrate judge allows Plaintiffs to
file an amended trespass claim, the magistrate judge will
give Plaintiffs a deadline to file a second amended
complaint.” [9/18/17 EO Ruling at 1 (emphases
in original).] The 10/12/17 Order stated: “Plaintiffs
must file their Motion for Leave by October 27,
2017 . . . . If Plaintiffs fail to file their Motion
for Leave by October 27, 2017, this Court
will dismiss their trespass claim with prejudice.”
10/12/17 Order, 2017 WL 4560123, at *2 (emphases in
of Plaintiffs' violation of the 9/18/17 EO Ruling and the
10/12/17 Order, this Court has the discretion to dismiss
Plaintiffs' trespass claim with prejudice. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 988 (9th Cir.
1999) (holding that the plaintiff's failure to comply
with a minute order setting forth the deadline to file the
amended complaint gave the district court the discretion to
dismiss the case under Fed.R.Civ.P. 41(b)). Before doing so,
however, this Court must weigh the five dismissal factors set
forth in Dreith v. Nu Image, Inc., 648 F.3d 779, 788
(9th Cir. 2011). See, e.g., Webb v. U.S. Soc.
Sec. Admin., CIVIL 16-00233 LEK-RLP, 2017 WL 380906, at
*1 (D. Hawai'i Jan. 25, 2017). The public interest in the
expeditious resolution of this litigation and this
Court's interest in managing the docket outweigh the
policy favoring disposition of cases on the merits. In
addition, Defendants will not be prejudiced by the dismissal
of Plaintiffs' trespass claim. However, the fact that
there is a less drastic alternative available weighs strongly
against dismissal with prejudice.
it is a close question, dismissal with prejudice is not
appropriate at this time. Instead, Count X of Plaintiffs'
First Amended Complaint, i.e. Plaintiffs'
trespass claim, is HEREBY STRICKEN. The 10/12/17 Order
dismissing Count X of Plaintiff's original Complaint
without prejudice still stands. Plaintiffs may file a motion
seeking leave to file a second amended complaint to include
their trespass claim. However, because the deadline to add
parties and amend pleadings expired on October 13, 2017,
[Rule 16 Scheduling Order, 4/14/17 (dkt. no. 56), at ¶
5, ] Plaintiffs' motion must meet the standards of both
Fed.R.Civ.P. 15(a)(2) and 16(b)(4). In particular, Plaintiffs
would have to establish good cause for their failure to file
a Motion for Leave by the October 27, 2017 deadline in the
 The 8/1/17 Order is also available at
2017 WL 4563079.
 The 10/12/17 Order is also available
at 2017 WL 4560123.
 Fed.R.Civ.P. 41(b) states, in
pertinent part: “If the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may
move to dismiss the action ...