United States District Court, D. Hawaii
ORDER ADDRESSING EVIDENTIARY ISSUES AND SCHEDULING
Oki Mollway United States District Judge
order addresses four matters.
the court now reconsiders its prior ruling denying the
State's Motion in Limine No. 8 to Exclude Evidence and
Testimony Concerning Consequential and Contractual Damages.
ECF 302. The court grants that motion in part, ruling that
any evidence of DW Aina Le‘a's failure to make
payments to Plaintiff under a Purchase & Sale Agreement
(PSA) is excluded if offered to establish damages for which
the State is required to pay just compensation.
court is now persuaded that the reference to
“lawful” governmental action in Omnia
Commercial Co. v. United States, 261 U.S. 502, 510
(1923), is not a basis for allowing such evidence in this
case with respect to just compensation. In coming to that
conclusion, the court relies on, among other cases,
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 543
(2005) (stating that an “inquiry” into a
“regulation's underlying validity” “is
logically prior to and distinct from the question whether a
regulation effects a taking”); United States v. 50
Acres of Land, 469 U.S. 24, 33 (1984) (stating without
qualification that “the Fifth Amendment does not
require any award for consequential damages arising from a
condemnation”); United States v. General Motors
Corp., 323 U.S. 373, 379 (1945) (similar); and Yuba
Natural Resources, Inc. v. United States, 904 F.2d 1577,
1581-82 (Fed. Cir. 1990) (similar). Notably, when the Supreme
Court in United States v. Bodcaw Co., 440 U.S. 202,
204 (1979), recognized the availability of attorney's
fees incurred as a consequence of a federal condemnation
action ultimately dismissed as unauthorized, the Court
described the availability of a fee award as “a matter
of legislative grace rather than constitutional
command.” Bodcaw illustrates that the
unavailability of consequential damages as an element of the
just compensation required by the Constitution does not
change when the government's action is
“unlawful” or “unauthorized.”
case, no legislative provision has been advanced providing
for the contractual damages allegedly suffered by Plaintiff.
As for recovery in the form of just compensation under the
Takings Clause, because the PSA itself was not taken, but was
only, allegedly, the subject matter of that contract, any
amounts owed to Plaintiff under the PSA constitute
nonrecoverable consequential damages. See, e.g.,
Kaiser Dev. Co. v. City & Cty. of Honolulu, 649
F.Supp. 926, 934 (D. Haw. 1986) (“In order for there to
be a taking of the contract itself, the government must
acquire the obligation or the right to enforce it. [If the]
government ha[s] taken the subject matter of the
contract . . . the plaintiff ha[s] merely suffered a
consequential loss . . . .” (citing Omnia
Commercial Co., 261 U.S. at 510-11)). Evidence of
nonpayment by DW Aina Le‘a to Plaintiff under the PSA
is accordingly excluded with respect to establishing the
amount, if any, of just compensation due to Plaintiff.
this ruling should not be read as excluding evidence of
contractual terms, or nonpayment thereunder, to the extent
such evidence is offered to prove that a taking occurred
(i.e., to show takings “liability”). Thus, for
example, if Plaintiff seeks to offer such evidence as going
to the Penn Central factor concerning interference
with investment-backed expectations, this ruling is not
intended to prohibit that. See Guggenheim v. City of
Goleta, 638 F.3d 1111, 1120 (9th Cir. 2010) (explaining
that “investment-backed expectations” under the
Penn Central analysis include expectations that are
“probable enough materially to affect the price”
paid for an asset).
the court observes that, in a footnote, the State appears to
be asking the court to revisit its ruling granting in part
and denying in part State's Motion in Limine No. 1 to
Exclude Argument and Evidence as to Alleged Due Process and
Equal Protection Violations. ECF 304, PageID # 6, 488 n.3.
The State correctly notes that this court mistakenly
identified Sherman v. Town of Chester, 752 F.3d 554
(2d Cir. 2014), as a Ninth Circuit case. The court here
acknowledges that Sherman is a Second Circuit case.
However, to the extent the State asks for more than a
citation correction, the court denies the State's
request. Any such request is an untimely reconsideration
motion buried in a footnote in a memorandum that was limited
to a separate issue. It would be patently unfair to Plaintiff
to grant such an untimely, improperly made, and footnoted
this court continues to view evidence of the “character
of the governmental action” under Penn Central
as including evidence that Plaintiff was singled out or
treated unusually. Although the Ninth Circuit has not
expressly recognized this as clearly as the Second Circuit
did in Sherman, this court does not read Ninth
Circuit precedent as declaring that evidence of unfair or
unusual government conduct is irrelevant to
“character” analysis. Guggenheim, cited
by the State, states that whether governmental action is
tantamount to a physical invasion of property is a relevant
part of “character” analysis, but nowhere states
that this is the only relevant consideration.
See 638 F.3d at 1121.
other Ninth Circuit cases are consistent with the Second
Circuit's broader understanding of the
“character” analysis and indicate that this
analysis may relate to such matters as whether other property
owners faced similar actions, whether regulatory actions were
just and fair or out of character for the affected industry
or profession, or whether an action singled out a particular
person. See MHC Fin. Ltd. P'ship v. City of San
Rafael, 714 F.3d 1118, 1128 (9th Cir. 2013); McClung
v. City of Sumner, 548 F.3d 1219, 1227 (9th Cir.2008),
abrogated on other grounds, Koontz v. St. Johns
River Water Mgmt. Dist., 570 U.S, 595 (2013); Wash.
Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 861
(9th Cir. 2001), aff'd on other grounds sub nom.
Brown v. Legal Found. of Wash., 538 U.S. 216 (2003);
Quarty v. United States, 170 F.3d 961, 969 (9th Cir.
this court has received Plaintiff's reconsideration
motion with respect to the order excluding expert reports.
ECF 306. This reconsideration motion is untimely, as the
underlying order that Plaintiff seeks to have this court
reconsider was an oral order issued on January 8, 2018. ECF
301. Any reconsideration motion was therefore due no later
than January 22, 2018. The court nevertheless invites a
response from the State, which may include argument as to
untimeliness, no later than February 9, 2018. An optional
reply may be filed by Plaintiff no later than February 13,
2018. The court will rule without a hearing.
the court informs the parties that it now appears likely that
trial in this case will proceed ...