United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO DISMISS SECOND AMENDED COMPLAINT
FILED OCTOBER 13, 2017
E. Kobayashi United States District Judge.
October 13, 2017, Plaintiff Ronald Hale McElroy
(“Plaintiff”) filed his Motion to Dismiss Second
Amended Complaint Filed October 13, 2017
(“Motion”). [Dkt. no. 159.] Defendants Logan
Mcbarnet, Terry T. Mcbarnet, as Trustee under That Certain
Unrecorded Revocable Trust of Terry T. Mcbarnet Dated
November 7, 2008, J. Mikael Brommels, Trustee of the J.
Mikael Brommels Living Trust Dated April 22, 2010, Gary
Heller, George Hlavenka, Catherine Hlavenka, Jesse Jacob
Brown, Kim Martin Brown, Ioan Martin, Jerzy Marie Kokurewicz,
Amita Holcomb Schmidt, Leo Francis Arensberg, Betty Jane
Galase Arensberg, Charles F. Krimm, Tamara M. Krimm, Thomas
G. Rusnak, Shannon T. Rusnak, and Ilana Kananipiliokalani
D`enbeau Waxman (collectively, “Motion
Defendants”) filed their memorandum in opposition on
December 29, 2017, and Plaintiff filed his reply on January
5, 2018. [Dkt. nos. 165, 168.] Defendants County of Maui and
Alexander & Baldwin, LLC filed statements of no position
on, respectively, December 28 and 29, 2017. [Dkt. nos. 164,
166.] This matter came on for hearing on January 22, 2018.
Plaintiff's Motion is hereby granted in part and denied
in part for the reasons set forth below.
originally filed his Complaint on January 10, 2017, and filed
his First Amended Complaint on February 1, 2017. [Dkt. nos.
1, 16.] Plaintiff sought declaratory and injunctive relief
relating to a land dispute. On August 21, 2017,
Plaintiff's First Amended Complaint was dismissed in its
entirety. [Order Granting in Part and Denying in Part
Defendants' Motion to Dismiss Plaintiff's Amended
Complaint [Dkt 16] Filed February 1, 2017 (“8/21/17
Order”), dkt. no. 154. The background of this matter is
fully set forth in the 8/21/17 Order. In pertinent part, the
8/21/17 Order stated:
Plaintiff has named Maui County as a party to this suit, but
not the State of Hawai`i or the relevant state agency. At the
hearing on the Motion, Maui County represented that it does
not have responsibility for the road at issue in the instant
matter - that it is not a county road. In short, it is
possible that Plaintiff has not sued the proper party in this
matter, and has therefore not stated a claim upon which
relief can be granted.
2017 WL 8316933, at *5 (citing Fed.R.Civ.P. 12(b)(6)).
then filed a motion for clarification of the 8/21/17 Order.
[Motion for Clarification of the Court's Order Granting
in Part and Denying in Part Defendants' Motion to Dismiss
Plaintiff's Amended Complaint [ECF 16] Filed February 1,
2017 (“Clarification Motion”), filed 9/19/17
(dkt. no. 155).] The Clarification Motion sought a ruling
that the 8/21/17 Order “will not prejudice
McElroy's right to file a Complaint in the Second Circuit
Court; [and] that dismissals of claims in the Amended
Complaint with prejudice shall have no res judicata or
collateral estoppel effect on McElroy's claims in the
Second Circuit Court.” [Id. at 8.] This Court
denied Plaintiff's Clarification Motion on September 29,
2017 (“9/29/17 Order”). [Order Denying
Plaintiff's Motion for Clarification, dkt. no. 157.] The
9/29/17 Order stated the Clarification Motion was
“puzzling” and sought an improper “advisory
ruling [because] this Court cannot predict in a vacuum what
may happen in the state court case which Plaintiff apparently
intends to file.” [Id. at 4.]
October 13, 2017, Plaintiff filed his Second Amended
Complaint. [Dkt. no. 158.] On the same day, Plaintiff filed
the instant Motion seeking voluntary dismissal of the Second
Amended Complaint under Fed.R.Civ.P. 41(a)(2). The parties
agree voluntary dismissal is appropriate. The parties
disagree as to whether conditions should be imposed on
granting voluntary dismissal. Motion Defendants argue
voluntary dismissal should be conditioned on Plaintiff's
reimbursement of their attorneys' fees relating to the
Rule 26(f) conference; the scheduling conference; legal
research relating to diversity jurisdiction; the motion to
dismiss the First Amended Complaint; the Clarification
Motion; and the instant Motion.
This district court has stated:
District courts have broad discretion to impose an award of
attorneys' fees as a condition for dismissing an action
without prejudice. See Fed.R.Civ.P. 41(a)(2)
(providing that “an action may be dismissed at the
plaintiff's request only by court order, on terms that
the court considers proper”); see also Smith v.
Lenches, 263 F.3d 972, 978 (9th Cir. 2001) (reviewing
district court's decision regarding an award of
attorneys' fees and costs relating to federal law suit
voluntarily dismissed for abuse of discretion); Westlands
Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir.
1996) (remanding for determination whether fees and costs
should be imposed as a condition of dismissal without
prejudice, and noting that pursuant to Rule 41(a)(2) the
court may impose “any terms and conditions [it] deems
proper” when granting voluntary dismissal).
Legacy Mortg., Inc. v. Title Guar. Escrow Servs.,
Inc., Civ. No. 11-00767 JMS-KSC, 2013 WL 1991563, at *2
(D. Hawai`i May 10, 2013).
I. Recoverable Tasks
41(a)(2) allows a plaintiff to obtain a dismissal “by
court order, on terms that the court considers proper.”
A plaintiff may also obtain a voluntary dismissal
“without a court order by filing a stipulation of
dismissal signed by all parties who have appeared.”
Rule 41(a)(1)(ii). At the January 22, 2018, hearing, Motion
Defendants represented through counsel that they would have
agreed to a stipulation for dismissal without prejudice, if
asked. Plaintiff represented through counsel that he ...