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McElroy v. McBarnet

United States District Court, D. Hawaii

April 5, 2018

RONALD HALE MCELROY, Plaintiff,
v.
LOGAN MCBARNET; ET AL., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO DISMISS SECOND AMENDED COMPLAINT FILED OCTOBER 13, 2017

          Leslie E. Kobayashi United States District Judge.

         On 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.

         BACKGROUND

         Plaintiff 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.[1] 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)).

         Plaintiff 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.]

         On 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.

         STANDARD

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).

         DISCUSSION I. Recoverable Tasks

         Rule 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 ...


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