United States District Court, D. Hawaii
CRAIG CONNELLY and KRISTINE CONNELLY, as individuals and on behalf of all others similarly situated, Plaintiffs,
EKIMOTO & MORRIS, LLLC, a Hawai`i limited liability law company, as individual entities; ASSOCIATION OF APARTMENT OWNERS OF KO OLINA KAI GOLF ESTATES AND VILLAS, a Hawai`i corporation as individual entities and on behalf of all others similarly situated; DOE DEFENDANTS 1-100, Defendants.
ORDER STRIKING FOURTH AMENDED CLASS ACTION COMPLAINT
AND DISMISSING WITH PREJUDICE CLAIMS DISMISSED WITHOUT
PREJUDICE IN THE JULY 5, 2018 “ORDER GRANTING DEFENDANT
EKIMOTO & MORRIS, LLLC'S MOTION TO DISMISS THIRD
AMENDED CLASS ACTION COMPLAINT FILED MAY 18,
E. Kobayashi United States District Judge
18, 2018, Plaintiffs Craig Connelly and Kristine Connelly, as
individuals and on behalf of all others similarly situated
(“Plaintiffs” or “the Connellys”),
filed their Third Amended Class Action Complaint
(“Third Amended Complaint”). [Dkt. no. 162.] On
July 5, 2018, this Court issued its Order Granting Defendant
Ekimoto & Morris, LLLC's Motion to Dismiss Third
Amended Class Action Complaint Filed May 18, 2018
(“7/5/18 Order”). [Dkt. no. 182. In the 7/5/18
Order, this Court dismissed: 1) the Connellys' Fair Debt
Collections Practices Act (“FDCPA”) claim against
Defendants Ekimoto & Morris, LLLC (“E&M”)
and Association of Apartment Owners of Ko Olina Kai Golf
Estates and Villas (“Ko Olina AOAO”); 7/5/18
Order, 2018 WL 3312957, at *2-3; and 2) the Connellys'
claim for declaratory judgment against E&M, id.
at *4. The dismissals were without prejudice, and the
Connellys were given until July 19, 2018 to file a fourth
amended complaint. Id.
19, 2018, in response to the 7/5/18 Order, the Connellys
filed their Fourth Amended Class Action Complaint
(“Fourth Amended Complaint”). [Dkt. no. 186.] The
Connellys added eleven new persons as plaintiffs and eight
new association defendants. [Fourth Amended Complaint at
¶¶ 9-16, 20-28.] Nothing in the 7/5/18 Order
granted the Connellys leave to add new parties. Further, the
magistrate judge previously denied the Connellys leave to add
“any new additional plaintiff class representatives or
additional homeowner association defendants as defendant
class representative.” [Order Granting in Part &
Denying in Part Pltfs. Craig Connelly & Kristine
Connelly's Motion to Amend Second Amended Complaint [Dkt.
145], filed 5/31/18 (dkt. no. 169) (“5/31/18
Order”), at ¶ 2.] That ruling in the 5/31/18 Order
and the order denying the Connellys' motion for
reconsideration of that ruling are currently on appeal before
this Court. [Notice of Pltfs.' Statement of Appeal to the
District Court from the Magistrate Judge's Orders [ECF
Nos. 169, 175] Granting in Part & Denying in Part
Pltfs.' Motion to Amend the Complaint & Denying
Reconsideration (“Appeal”), filed 7/3/18 (dkt.
24, 2018, this Court issued an entering order (“7/24/18
EO”) directing the Connellys to file a statement
addressing why the Court should not dismiss the Fourth
Amended Complaint without prejudice. [Dkt. no. 187.] On
August 7, 2018, the Connellys filed their response to the
7/24/18 EO (“Connelly Response”). [Dkt. no. 196.]
On August 14, 2018, E&M filed its response to the 7/24/18
EO (“E&M Response”), and the Ko Olina AOAO
filed a joinder in the E&M Response. [Dkt. nos. 197,
Striking the Fourth Amended Complaint
Connelly Response contends that the addition of new
plaintiffs to serve as class representatives for the FDCPA
claim and the addition of a new association defendant to
correspond with the new plaintiffs were acceptable amendments
in response to the 7/5/18 Order. The Connellys' argument
is belied by the language of the 7/5/18 Order, which
specifically limits the amendment of the FDCPA claim to the
Connellys, referred to as “Plaintiffs” in the
If Plaintiffs choose to amend their FDCPA claims, their
fourth amended complaint must address the
following: 1) whether the Unit was ever Plaintiffs'
primary residence; 2) if so, how long was the Unit their
primary residence; 3) what other purposes, if any, did
Plaintiffs use the Unit for before they lost the Unit in the
nonjudicial foreclosure proceedings at issue in this case;
and 4) how long did Plaintiffs use the Unit for each of the
other purposes referred to in number 3.
2018 WL 3312957, at *3 (emphasis added). As stated in the
7/24/18 EO, nothing in the 7/5/18 Order granted the Connellys
leave to add new parties. [7/24/18 EO at 1.]
Connelly Response also argues the addition of new plaintiffs
and defendants was appropriate under Fed.R.Civ.P. 15.
However, this is the very argument the magistrate judge
rejected in the 5/31/18 Order and which is currently pending
before this Court in the Appeal. Unless and until this Court
grants the Connellys' Appeal and reverses the magistrate
judge's ruling in the 5/31/18 Order denying leave to
amend, the Connellys do not have leave to add any new
parties. Because the Fourth Amended Complaint added new
parties in violation of the 7/5/18 Order and without leave to
amend, the Fourth Amended Complaint is HEREBY STRICKEN.
Connellys' Third Amended Complaint remains the operative
pleading in this case.
Dismissal with Prejudice
Connellys concede that “they cannot amend their
allegations consistent with the Court's [7/5/18] Order to
represent Class members with regard to the FDCPA
claim.” [Connelly Response at 2.] Based on this
concession, “‘it is clear, upon de novo review,
that the [FDCPA claim] could not be saved by any
amendment.'” See 7/5/18 Order, 2018 WL
3312957, at *3 (quoting Sonoma Cty. Ass'n of Retired
Emps. v. Sonoma Cty., 708 F.3d 1109, 1118 (9th Cir.
2013)). The Connellys' FDCPA (Count III of the Third
Amended Complaint) is therefore DISMISSED WITH PREJUDICE.
Because the FDCPA claim was the only substantive claim
against E&M, the Connellys' claim for declaratory
relief (Count I of the Third Amended Complaint) is also
DISMISSED WITH PREJUDICE as to E&M.
dismissal of these claims with prejudice does not preclude a
new plaintiff from alleging a FDCPA claim against E&M,
and a corresponding claim for declaratory relief against
E&M, if the Connellys are granted leave to add a new
plaintiff. Whether the Connellys will be allowed to file a