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Begley v. County of Kauai

United States District Court, D. Hawaii

December 27, 2018

MARK N. BEGLEY, Plaintiff,
v.
COUNTY OF KAUAI, KAUAI POLICE DEPARTMENT, DARRYL PERRY, ROY ASHER, MICHAEL CONTRADES AND DOE DEFENDANTS 16-100, Defendants.

          ORDER: DENYING DEFENDANT MICHAEL CONTRADES'S MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT FILED HEREIN ON AUGUST 31, 2018; DENYING THE COUNTY DEFENDANTS' JOINDER OF SIMPLE AGREEMENT; AND GRANTING DEFENDANT ROY ASHER'S SUBSTANTIVE JOINDER

          Leslie E. Kobayashi, United States District Judge.

         On September 14, 2018, Defendant Michael Contrades (“Contrades”), in his individual capacity, filed his Motion to Dismiss Plaintiff's Third Amended Complaint Filed Herein on August 31, 2018 (“Contrades Motion”). [Dkt. no. 360.] On September 20, 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 joinder of simple agreement (“County Joinder”). [Dkt. no. 365.] On September 21, 2018, Asher, in his individual capacity, filed a substantive joinder (“Asher Joinder”). [Dkt. no. 368.] On October 15, 2018, Plaintiff Mark N. Begley (“Plaintiff”) filed a memorandum in opposition to the Contrades Motion and a memorandum in opposition to the Asher Joinder. [Dkt. nos. 377, 378.] On October 22, 2018, Asher filed a reply in support of his joinder, and Contrades filed a reply in support of his motion. [Dkt. nos. 379, 382.] These matters came on for hearing on November 5, 2018. On November 6, 2018, this Court issued an entering order informing the parties of its rulings on the Contrades Motion and the Asher Joinder. [Dkt. no. 411.] The instant Order supersedes that entering order. For the reasons set forth below, the Court rules as follows: the Contrades Motion is denied in its entirety; the County Joinder is denied because it merely agreed with the Contrades Motion; and the Asher Motion is granted.

         BACKGROUND

         The relevant factual allegations and procedural background of this case are set forth in this Court's: 1) January 4, 2018 Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Portions of Plaintiff's First Amended Complaint (“1/4/18 Order”); 2) January 16, 2018 Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Portions of Plaintiff's First Amended Complaint (“1/16/18 Order”); and July 31, 2018 Order Granting in Part and Denying in Part Motion to Dismiss and Substantive Joinder (“7/31/18 Order”). [Dkt. nos. 198, 199, 340.[1] They will not be repeated here except where relevant to the Contrades Motion and the Asher Joinder.

         Plaintiff filed his original Complaint on June 27, 2016, his First Amended Complaint on May 5, 2017, and his Second Amended Complaint on February 15, 2018. [Dkt. nos. 1, 103, 201.] The Second Amended Complaint alleged the following 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 (“Count I”);
• aiding and abetting, inciting, compelling, or coercing retaliation, under Chapter 368 and § 378-2(3), [2] against Perry, Asher, and Contrades, in their individual capacities (“the Individual Defendants” and “Count II”);[3]
• 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 IV”).

         In the 7/31/18 Order, this Court dismissed Counts II and IV against Contrades, in his individual capacity, and dismissed Count IV against the County Defendants. The dismissals were without prejudice, and Plaintiff was given until August 31, 2018 to file a third amended complaint. 7/31/18 Order, 2018 WL 3638083, at *7.

         Plaintiff filed his Third Amended Complaint on August 31, 2018.[4] [Dkt. no. 349.] The Third Amended Complaint alleges the same four claims, against the same groupings of Defendants, as the Second Amended Complaint. Compare Second Amended Complaint at pgs. 30-34 with Third Amended Complaint at pgs. 47-51. The allegations of the Third Amended Complaint's claims themselves are substantively identical to the allegations of the Second Amended Complaint's claims, although the Third Amended Complaint now relies on the current version of § 378-2(a)(3) instead of § 378-2(3) (2011). [Third Amended Complaint at ¶ 134.]

         In the “JURISDICTION AND VENUE” section, Plaintiff added the following allegations:

4. The applicable statute of limitations is tolled for the claims alleged herein by virtue of Plaintiff's discovery, on September 19, 2016 and October 14, 2016, of documents received in response to Plaintiff's discovery requests (“the 9/19/16 Production” and “the 10/14/16 Production, ” respectively). These documents establish a pattern of cooperation, aid and assistance among Defendants Darryl Perry, Michael Contrades and Roy Asher in furtherance of a deliberate plan to assail Plaintiff with retaliatory orders as well as a barrage of internal and external investigations based on unsubstantiated, false and frivolous accusations for the express and intended purpose of unlawfully targeting and retaliating against Plaintiff for his actions, beginning in January 2011, related to the complaint made by KPD Officer Darla Abbatiello (“the Abbatiello Complaint”) against Defendant Roy Asher .....
5. The applicable statute of limitations is also tolled for the claims alleged herein by virtue of Plaintiff's discovery, on November 26, 2016, of correspondence disclosed by the County from the email account of Defendant Michael Contrades. These emails (“the 11/26/16 Contrades Emails”) contain evidence not previously known to Plaintiff establishing malice and animus on the part of Defendants Darryl Perry, Michael Contrades and Roy Asher towards Plaintiff. As more fully alleged herein, the 11/26/16 Contrades Emails establish a pattern of cooperation, aid and assistance among Defendants in furtherance of a deliberate plan to assail Plaintiff with retaliatory orders as well as a barrage of internal and external investigations based on unsubstantiated, false and frivolous accusations for the express, intended and improper purpose of retaliating against Plaintiff for his actions related to the Abbatiello Complaint. . . .
6. Defendants deliberately, and with clear malice towards Plaintiff, pursued this continuous course of tortious conduct through the execution of specific acts, some of which are identified below, and which acts caused the harms to Plaintiff alleged herein. For these reasons, and those more fully set forth below, the accrual date of Plaintiff's claims is 11/26/2016.

[Id. at pgs. 2-4 (emphases added).]

         Many of the factual allegations of the Third Amended Complaint are substantively identical to those of the Second Amended Complaint. Compare Third Amended Complaint at ¶¶ 7-121 with Second Amended Complaint at ¶¶ 4-119. In addition:

• Plaintiff added paragraph 122, which alleges the 11/26/16 Contrades Emails revealed facts that were previously unknown to Plaintiff. The vast majority of paragraphs 122.a to 122.www each describes either an email by or to Perry, Contrades or Asher. [Id. at pgs. 32-45.] Some of the paragraphs provide contextual factual allegations. See, e.g., id. at ¶ 122.sss.
• Plaintiff added paragraph 123, which alleges the 9/19/16 Production revealed facts that were previously unknown to him. Paragraphs 123.a to 123.f each describes a letter or memorandum by or to Perry, Contrades or Asher. [Id. at pgs. 45-47.]
• Plaintiff added paragraph 124, which alleges the 10/14/16 Production also revealed facts that were previously unknown to him. Paragraph 124.a descries a letter written by Perry to the executive director of the E911 Board. [Id. at pg. 47.]

         The Contrades Motion argues Plaintiff's aiding and abetting claim against Contrades should be dismissed because it is not supported by a viable claim that Plaintiff was retaliated against for his support of the Abbatiello Complaint and a viable underlying claim that Abbatiello was subjected to discrimination. Contrades also argues that: individuals are not liable under either Title VII or § 378-2; he is entitled to qualified immunity/conditional privilege as to both Plaintiff's aiding and abetting claim and IIED claim; and the Third Amended Complaint fails to address the defects in Plaintiff's IIED claim ...


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