United States District Court, D. Hawaii
MARK N. BEGLEY, Plaintiff,
COUNTY OF KAUAI, KAUAI POLICE DEPARTMENT, DARRYL PERRY, ROY ASHER, MICHAEL CONTRADES AND DOE DEFENDANTS 16-100, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS AND SUBSTANTIVE JOINDER
E. Kobayashi United States District Judge
March 14, 2018, Defendant Michael Contrades
(“Contrades”), in his individual capacity, filed
his Motion to Dismiss Plaintiff's Second Amended
Complaint Filed on February 15, 2018 (“Motion”).
[Dkt. no. 216.] On March 21, 2018, Defendants County of Kauai
(“the County”); Kauai Police Department
(“KPD”); Darryl Perry (“Perry”), in
his official capacity; Roy Asher (“Asher”), in
his official capacity; and Contrades, in his official
capacity (collectively, “County Defendants”),
filed a substantive joinder in the Motion (“Substantive
Joinder”). [Dkt. no. 226.] On April 16, 2018,
Plaintiff Mark N. Begley (“Plaintiff”) filed his
memorandum in opposition. [Dkt. no. 246.] Contrades and the
County Defendants each filed their reply on April 23, 2018.
[Dkt. nos. 274 (Contrades Reply), 276 (County Defendants
Reply).] These matters came on for hearing on May 7, 2018.
The Motion and Substantive Joinder are hereby granted in part
and denied in part for the reasons set forth below.
action commenced on June 27, 2016, and the First Amended
Complaint was subsequently filed on May 5, 2017. [Dkt. nos.
1, 103.] On January 4, 2018, this Court issued its Order
Granting in Part and Denying in Part Defendant's Motion
to Dismiss Portions of Plaintiff's First Amended
Complaint (“1/4/18 Order”). [Dkt. no.
On January 16, 2018, this Court issued its Order Granting in
Part and Denying in Part Defendant's Motion to Dismiss
Portions of Plaintiff's First Amended Complaint
(“1/16/18 Order”). [Dkt. no. 199.In the First
Amended Complaint, Plaintiff asserted four claims:
-retaliation, under Title VII of the Civil Rights Act of 1964
(“Title VII”), U.S.C. § 2000e-3(a) and Haw.
Rev. Stat. Chapter 368 and § 378-2(2),  against the
County and KPD
-aiding and abetting retaliation, under Chapter 368 and
§ 378-2(3), against the Individual Defendants
-violation of the Hawai`i Whistleblowers' Protection Act,
Haw. Rev. Stat. § 378-61, et seq., against the
County and KPD (“Count III”); and
-intentional infliction of emotional distress
(“IIED”) against all Defendants (“Count
1/4/18 Order and 1/16/18 Order, the motions to dismiss of
Asher and Contrades, respectively, in their individual
capacities, were denied as to Count II, and granted insofar
as Count IV was dismissed as time-barred. The First Amended
Complaint lacked sufficient factual allegations, accepted as
true, to support Plaintiff's position that, under the
discovery rule, his IIED claims accrued in 2016 when a United
States Equal Employment Opportunity Commission
(“EEOC”) document production revealed to him the
outrageous character of otherwise time-barred
incidents.1/4/18 Order, 2018 WL 295799, at *4
(citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)) (dismissing Count IV against Asher); 1/16/18
Order, 2018 WL 443437, at *4 (dismissing Count IV against
Contrades “[f]or the reasons stated in the 1/4/18
Order”). The dismissal of Count IV was without
prejudice because it was possible that Plaintiff could cure
the timeliness defect “by alleging facts that would
support his position regarding the 2016 document
production.” 1/4/18 Order, 2018 WL 295799, at *4
(footnote and citation omitted); see also 1/16/18
Order, 2018 WL 443437, at *4.
February 15, 2018, Plaintiff filed his Second Amended
Complaint. [Dkt. no. 201.] Plaintiff alleges the same claims
as in the First Amended Complaint. [Id. at
¶¶ 120-39.] Plaintiff repeats all of the factual
allegations considered in the 1/4/18 Order and 1/16/18 Order.
The factual allegations set forth in the First Amended
Complaint are summarized in the 1/4/18 Order and are not
repeated here except as relevant to the instant Motion and
Substantive Joinder. See 2018 WL 295799, at *2. In
short, Plaintiff was an assistant KPD chief of police.
[Second Amended Complaint at ¶ 4.] Plaintiff alleges he
helped oppose sex discrimination committed by Asher against
Darla Abbatiello (“Abbatiello”), who was a KPD
police officer, and that as a result, Defendants
discriminated against him in the workplace. Asher was also an
assistant KPD chief of police; Contrades was the deputy chief
of police; and Perry was the KPD chief of police.
[Id. at ¶¶ 6-8.] The only significant new
factual allegations are that, on June 15, 2016, Plaintiff
received a document production from the EEOC. [Id.
at ¶ 36.] According to Plaintiff, the document
production “revealed . . . further retaliation . . . .
Prior to receiving the EEOC's investigatory files,
Plaintiff was unaware of the aforementioned documents and
County-wide retaliatory efforts made against him.”
[Id. at ¶ 37.]
instant Motion, Contrades seeks dismissal of Counts II and
IV. The County Defendants argue that, for the reasons
asserted in the Motion, they are entitled to dismissal of
Counts I, II, and IV.
Ninth Circuit has described the standard applicable to a
motion under Fed.R.Civ.P. 12(b)(6) as follows:
To survive a motion to dismiss for failure to state a claim
after the Supreme Court's decisions in Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) and Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the
[plaintiff's] factual allegations “must . . .
suggest that the claim has at least a plausible chance of
success.” In re Century Aluminum [Co. Sec.
Litig.], 729 F.3d [1104, ] 1107 [(9th Cir. 2013)]. In
other words, their complaint “must allege
‘factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'” Id. (quoting
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).
Iqbal and Twombly, . . . . we have settled
on a two-step process for evaluating pleadings:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
[Eclectic Props. E., LLC v. Marcus & Millichap
Co., 751 F.3d 990, 996 (9th Cir. 2014)] (quoting
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).
In all cases, evaluating a complaint's plausibility is a
“context-specific” endeavor that requires courts
to “draw on . . . judicial experience and common
sense.” Id. at 995-96 (internal quotation
Levitt v. Yelp! Inc., 765 F.3d 1123, 1134-35 (9th
Cir. 2014) (some alterations in Levitt).
district court has stated, “although allegations
‘upon information and belief' may state a claim
after Iqbal and Twombly, a claim must still
be based on factual content that makes liability plausible,
and not be ‘formulaic recitations of the elements of a
cause of action.'” Klohs v. Wells Fargo
Bank,N.A., 901 F.Supp.2d 1253, 1260 n.2 (D.
Hawai`i 2012) (quoting Long v. Yomes, 2011 WL