United States District Court, D. Hawaii
KENNETH LAKE, CRYSTAL LAKE, HAROLD BEAN, MELINDA BEAN, KYLE PAHONA, ESTEL PAHONA, TIMOTHY MOSELEY, ASHLEY MOSELEY, RYAN WILSON, and HEATHER WILSON, Plaintiffs,
OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC., DOE DEFENDANTS 1-10, Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR CLASS
E. KOBAYASHI, UNITED STATES DISTRICT JUDGE.
March 22, 2019, Plaintiffs Kenneth Lake, Crystal Lake, Harold
Bean, Melinda Bean, Kyle Pahona, Estel Pahona, Timothy
Moseley, Ashley Moseley, Ryan Wilson, and Heather Wilson
(“Plaintiffs”) filed their Motion for Class
Certification (“Motion”). [Dkt. no. 127.] On April 2,
2019, the Court issued an Order to Show Cause
(“OSC”), requiring Plaintiffs to file a response
showing why the Motion should not be summarily denied. [Dkt.
no. 131.] Plaintiffs filed their response to the OSC
(“OSC Response”) on April 12, 2019. [Dkt. no.
134.] The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local
Rules of Practice of the United States District Court for the
District of Hawai`i (“Local Rules”). On April 16,
2019, this Court issued an entering order informing the
parties of its ruling on the Motion. [Dkt. no. 135.] The
instant Order supersedes that entering order. Plaintiffs'
Motion is hereby denied for the reasons set forth below.
Kenneth Lake, Crystal Lake, Harold Bean, Melinda Bean, Kyle
Pahona, Estel Pahona, Timothy Moseley, and Ashley Moseley
filed their Complaint in state court on September 14, 2016.
[Notice of Removal, filed 10/13/16 (dkt. no. 1), Decl. of
Christine A. Terada, Exh. 1.] Ryan Wilson and Heather Wilson
were added as plaintiffs when the First Amended Complaint was
filed on September 20, 2017. [Dkt. no. 75.] The First Amended
Complaint remains the operative pleading.
are current or former residents of housing at Kaneohe Marine
Corps Base Hawaii (“MCBH”). The crux of
Plaintiffs' claims is that the soil in some of the
residential neighborhoods at MCBH is contaminated, and
Defendants Ohana Military Communities, LLC
(“Ohana”) and Forest City Residential Management,
LLC (“Forest City” and collectively,
“Defendants”) failed to: 1) perform adequate
remediation measures; and 2) disclose the contamination to
Plaintiffs. Plaintiffs allege they were all exposed to the
contaminated soil because the soil in their respective MCBH
neighborhoods was contaminated and/or they routinely visited,
and traveled through, neighborhoods with contaminated soil.
First Amended Complaint alleges the following claims: breach
of contract against Ohana (“Count I”); breach of
the implied warranty of habitability against Ohana
(“Count II”); a Haw. Rev. Stat. Chapter 521 claim
against Defendants (“Count III”); an unfair and
deceptive acts or practices (“UDAP”) claim
against Defendants (“Count IV”); a negligent
failure to warn claim against Defendants (“Count
V”); a negligent infliction of emotional distress claim
and an intentional infliction of emotional distress claim
against Defendants (“Count VI”); a fraud claim
against Defendants (“Count VII”); a negligent
misrepresentation claim against Defendants (“Count
VIII”); an unfair methods of competition
(“UMOC”) claim against Defendants (“Count
IX”); a trespass claim against Defendants (“Count
X”); and a nuisance claim against Defendants
(“Count XI”). Counts IV and IX were stricken
because this Court previously dismissed Plaintiffs' UDAP
and UMOC claims with prejudice. [Order Granting in Part and
Denying in Part Defs.' Motion to Dismiss and/or Strike
Pltfs.' First Amended Complaint [Dkt 75], filed 5/31/18
(dkt. no. 98) (“5/31/18 Order”), at
Count X was stricken because Plaintiffs failed to seek leave
to amend that claim. 5/31/18 Order, 2018 WL 2449188, at *3
(citing dkt. no. 81). The portion of Count III based on Haw.
Rev. Stat. § 521-42(a)(1) was dismissed with prejudice,
id. at *7, as were Harold Bean and Melinda
Bean's and Timothy Moseley and Ashley Moseley's
claims in Count XI, id. at *10. All other claims in
the First Amended Complaint remain. See id.
do not dispute that the First Amended Complaint does not
plead this case as a class action, nor does it contain class
allegations. In spite of the lack of class allegations, the
instant Motion asks this Court to certify the following
damages class, pursuant to Fed.R.Civ.P. 23(b)(3): “All
persons who leased or resided in residential properties
leased from Ohana Military Communities, LLC, at Marine Corps
Base Hawaii (‘MCBH') in Kaneohe, Oahu, Hawaii,
between 2006 to present.” [Motion at iii.]
extent that Plaintiffs propose to convert this case into a
class action, they seek to expand the scope of the case to
assert the claims of, and to seek relief on behalf of,
persons who are not identified as plaintiffs in the First
Amended Complaint. Thus, as to the proposed class members,
the First Amended Complaint is not “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” nor does it include “a demand for
the relief sought.” See Fed.R.Civ.P.
8(a)(1)-(2). The Motion is therefore construed as a motion
for leave to file a second amended complaint,  which would plead
the case as a class action.
following standards apply to a motion for leave to file an
Rule 15(a) of the Federal Rules of Civil Procedure states
that leave to amend a complaint should be freely given
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). In determining whether to allow amendment of a
complaint, courts consider factors such as: whether the
amendment will cause undue delay; whether the movant has
demonstrated bad faith or a dilatory motive; whether the
amendment will unduly prejudice the opposing party; whether
amendment is futile; and whether the movant has repeatedly
failed to cure deficiencies. See Foman v. Davis, 371
U.S. 178, 182 (1962). . . .
Gilliam v. Glassett, CIVIL NO. 18-00317 SOM/RLP,
2019 WL 475008, at *1 (D. Hawai`i Feb. 6, 2019).
had notice that they had to satisfy the standards summarized
in Gilliam. [OSC at 2.] Plaintiffs' OSC