Cadiente et al v. City and County of Honolulu et al
| Tevitatonga Sinamoni Vaokehekehe Cadiente and Vaokehekehe Mouhungafa Mataele |
| City and County of Honolulu, Doe Police Officers 1-30 and Does 1-30 |
| 1:2024cv00022 |
| January 16, 2024 |
| US District Court for the District of Hawaii |
| WES REBER PORTER |
| J MICHAEL SEABRIGHT |
| MICAH WJ SMITH |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| Plaintiff |
Docket Report
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Filing 22
REPLY to Plaintiffs' Memorandum in Opposition to Defendant City's Motion to Dismiss filed by City and County of Honolulu. (Attachments: #1 Certificate of Service)(Ogata, Page)
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Filing 21
CERTIFICATE OF SERVICE by Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele re #20 Amended Complaint, (O'Neill, Ralph)
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Filing 20
Second AMENDED COMPLAINT ; Demand for Jury Trial; Exhibits A - E against Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele, filed by Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E)(O'Neill, Ralph) Modified on 3/14/2024 (jni)
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Filing 19
EO: On March 6, 2024, the parties filed a #18 Stipulation for Partial Dismissal under Rule 41(a)(1)(A)(ii).Although the Stipulation is styled as a Rule 41(a)(1) dismissal, "Rule 41 is reserved for circumstances in which the result of the alleged dismissal is that one or all of the defendants are released from the action." Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1513 (9th Cir. 1995). The Rule "does not allow for piecemeal dismissals." Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005).Here, the parties' Stipulation would not dismiss one or more defendants from the case. As such, Rule 15 not Rule 41 is the proper vehicle for these partial dismissals. See Gen. Signal Corp., 66 F.3d at 1513; see also ECF No. 17.Accordingly, the Court construes the Stipulation as an unopposed motion seeking leave to amend under Rule 15. See, e.g., Arvizu v. City of Fresno, No. 21-cv-890, 2024 WL 100514, at *1 (E.D. Cal. Jan. 9, 2024) (construing stipulation to dismiss a single claim under Rule 41 as an unopposed motion under Rule 15, and granting leave to amend); Doe BP v. City of Tempe, No. 21-cv-184, 2021 WL 2587892, at *2 (D. Ariz. June 24, 2021) (similar).Because leave should be freely given, and because the parties stipulated to removing the claims, the Court GRANTS the leave to amend. Plaintiffs are DIRECTED to file a Second Amended Complaint by March 14, 2024. The Second Amended Complaint should not contain the claims identified in their #18 Stipulation for Partial Dismissal.Additionally, because the Second Amended Complaint will be largely identical to the First Amended Complaint, the Court will consider the Defendant City and County of Honolulu's pending #12 Motion to Dismiss as addressing the amended pleadings. See 6 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1476 (3d ed.) ("If some of the defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the amended pleading."); e.g., Zimmerman v. PeaceHealth, No. 22-cv-5960, 2023 WL 7413650, at *3 (W.D. Wash. Nov. 9, 2023) (similar). The briefing schedule set in ECF No. 13 remains, and any reply brief is due by March 15, 2024. IT IS SO ORDERED. (JUDGE MICAH W.J. SMITH)(rls)
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Filing 18
STIPULATION FOR PARTIAL DISMISSAL OF PLAINTIFFS' (1) CLAIMS BASED ON VIOLATIONS OF THE FIFTH AND FOURTEENTH AMENDMENTS AS TO ALL DEFENDANTS WITHOUT PREJUDICE AND (2) CLAIM FOR PUNITIVE DAMAGES AGAINST DEFENDANT CITY AND COUNTY OF HONOLULU WITH PREJUDICE by Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele. (O'Neill, Ralph)
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Filing 17
EO: On March 5, 2024, Plaintiffs submitted a Notice of Dismissal of Certain Claims to smith_orders@hid.uscourts.gov for the Court's review and approval. Pursuant to Local Rule 41.1 and Rules 41(a)(1)(A)(i) and 41(a)(1)(B) of the Federal Rules of Civil Procedure, Plaintiffs requested dismissal of "(1) claims based on violations of the Fifth and Fourteenth Amendments to the United States Constitution as to all Defendants without prejudice and (2) claim for punitive damages against Defendant City and County of Honolulu with prejudice." All other claims would remain. Although Rule 41(a)(1) permits voluntary "dismissals of entire actions" and "dismissal of all claims against one defendant," it "does not allow for piecemeal dismissals." Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005) (emphasis omitted). Put differently, Rule 41(a)(1) cannot be used "to dismiss, unilaterally, a single claim from a multi-claim complaint." Ethridge v. Harbor House Rest., 861 F.2d 1389, 1392 (9th Cir. 1988).Plaintiffs' Notice of Dismissal does not appear to dismiss all claims against any one defendant. And "when a party dismisses some, but not all, of its claims," Rule 15 applies. See Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1513 (9th Cir. 1995). Accordingly, if the Plaintiffs wish to dismiss only certain claims against certain Defendants, they may seek leave of Court to amend their pleadings under Rule 15. (JUDGE MICAH W.J. SMITH)(rls)
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Filing 16
NOTICE by Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele re #15 Memorandum in Opposition to Motion, of Erratum to Plaintiffs' Memorandum in Opposition Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele. (Attachments: #1 Certificate of Service)(O'Neill, Ralph)
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Filing 15
MEMORANDUM in Opposition re #12 to Defendant City and County of Honolulu's Motion to Dismiss Plaintiffs' First Amended Complaint (Dkt. 7) filed by Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele. (Attachments: #1 Declaration of Counsel, #2 Exhibit A, #3 Certificate of Service, #4 Certificate of Word Count)(O'Neill, Ralph) Modified on 3/4/2024 to add link. (jni)
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Filing 14
NOTICE by Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele of Withdrawal of Counsel Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele. (Attachments: #1 Certificate of Service)(O'Neill, Ralph)
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Filing 13
EO: The Court sets the following briefing schedule for Defendant City and County of Honolulu's #12 Motion to Dismiss, filed February 16, 2024: An opposition shall be due March 1, 2024. Any reply shall be due March 15, 2024. After receipt of the parties' briefs, the Court will notify the parties if a hearing is deemed necessary. IT IS SO ORDERED. (JUDGE MICAH W.J. SMITH)(rls)
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Filing 12
MOTION to Dismiss Plaintiff's First Amended Complaint Page C. Ogata appearing for Defendant City and County of Honolulu (Attachments: #1 Memorandum, #2 Declaration, #3 Exhibit, #4 Certificate of Service)(Ogata, Page)
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Filing 11
EO: In order to allow time for service of the Complaint and responses thereto, the Telephonic Rule 16 Scheduling Conference is CONTINUED from 3/18/2024 to 6/4/2024 at 9:30 AM before MAGISTRATE JUDGE WES REBER PORTER via Zoom: Dial in number: 1-833-568-8864; Meeting ID: 161 0084 2470. (MAGISTRATE JUDGE WES REBER PORTER) (jo)
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Filing 10
NOTICE of Case Reassignment; Case reassigned to JUDGE MICAH W.J. SMITH for all further proceedings. JUDGE J. MICHAEL SEABRIGHT no longer assigned to case Please reflect Civil case number CV 24-00022-MWJS-WRP on all further pleadings. (apg)
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Filing 9
AFFIDAVIT of Service for First Amended Complaint; Amended Summons; and Order Setting Rule 16 Scheduling Conference served on City and County of Honolulu on 01/29/2024, filed by Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele. (O'Neill, Ralph)
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Filing 8
Summons Issued as to City and County of Honolulu. (apg)
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Filing 7
First AMENDED COMPLAINT ; Demand for Jury Trial against All Defendants, filed by Tevitatonga Sinamoni Vaokehekehe Cadiente, Vaokehekehe Mouhungafa Mataele. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Summons)(Anderson, Elise) Modified on 1/24/2024 (jni)
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Filing 6
NOTICE of Appearance by Elise Carolene Anderson on behalf of Tevitatonga Sinamoni Vaokehekehe Cadiente on behalf of Tevitatonga Sinamoni Vaokehekehe Cadiente. (Anderson, Elise)
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Filing 5
Summons Issued as to City and County of Honolulu. (jni)
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Filing 4
CIVIL Waiver of Service Packet - Notice to Parties Regarding Service Pursuant to Rule 4 of the Federal Rules of Civil Procedure (Attachments: #1 Notice of a Lawsuit and Request to Waive Service of a Summons, #2 Waiver of the Service of Summons)(jni)
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Filing 3
Order Setting Telephonic Rule 16 Scheduling Conference is set for 09:00AM on 3/18/2024 before MAGISTRATE JUDGE WES REBER PORTER - Signed by CHIEF JUDGE DERRICK K. WATSON on 1/17/2024. ATTACH THE SCHEDULING ORDER TO THE INITIATING DOCUMENT (COMPLAINT/NOTICE OF REMOVAL). THE SCHEDULING ORDER MUST BE SERVED WITH THE DOCUMENT.(jni)
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Filing 2
NOTICE of Case Assignment: Please reflect Civil case number CV 24-00022 JMS-WRP on all further pleadings. (jni)
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Filing 1
COMPLAINT; Demand for Jury Trial; Exhibits "A"-"E"; Summons against City and County of Honolulu VAOKEHEKEHE MOUHUNGAFA MATAELE ( Filing fee $ 405 receipt number AHIDC-2945978.), filed by TEVITATONGA SINAMONI CADIENTE. (Attachments: #1 Civil Cover Sheet, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit Errata D, #6 Exhibit E, #7 Summons)(O'Neill, Ralph) Modified on 1/17/2024 (jni)
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