Muriel Seto v. Laura Thielen , 519 F. App'x 966 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MURIEL B. SETO; FRIENDS OF No. 11-15510
HE’EIA STATE PARK; HUI MALAMA
‘AINA O LAIE; DAWN K. WASSON, D.C. No. 1:10-cv-00351-SOM-
BMK
Plaintiffs - Appellants,
v. MEMORANDUM *
LAURA THIELEN, as Director of the
Department of Land and Natural
Resources of the State of Hawaii, and in
her capacity as Chair of the Board of Land
and Natural Resources, and in her personal
capacity; LINDA LINGLE, in her capacity
as Governor of the State of Hawaii;
DANIEL QUINN, in his capacity as
Administrator of the Parks Division of
Department of Land and Natural
Resources and in his personal capacity;
CURT COTTRELL, in his capacity as
Member of Department of Land and
Natural Resources He’eia State Park Lease
Selection Committee, Department of Land
and Natural Resources of the State of
Hawaii, and other DLNR scope of
employment duties, and in his personal
capacity; STEVEN THOMPSON, in his
capacity as Chairman of Department of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Land and Natural Resources, He’eia State
Park Lease Selection Committee,
Department of Land and Natural
Resources of the State of Hawaii, and
other DLNR scope of employment duties,
and in his personal capacity; RAYMOND
SANBORN, in his capacity as President
and Chairman of the Board of Kama’aina
Care Inc., and in his personal capacity;
KAMA’AINA CARE INCORPORATED;
JOHN AND JANE DOES 1-40; DOE
PARTNERSHIPS 1-20; DOE
CORPORATIONS 1-30; OTHER DOE
ENTITIES 1-30,
Defendants - Appellees.
MURIEL B. SETO; FRIENDS OF No. 12-15099
HE’EIA STATE PARK; HUI MALAMA
‘AINA O LAIE; DAWN K. WASSON, D.C. No. 1:10-cv-00351-SOM-
BMK
Plaintiffs - Appellants,
v.
LAURA THIELEN, as Director of the
Department of Land and Natural
Resources of the State of Hawaii, and in
her capacity as Chair of the Board of Land
and Natural Resources, and in her personal
capacity; LINDA LINGLE, in her capacity
as Governor of the State of Hawaii;
DANIEL QUINN, in his capacity as
Administrator of the Parks Division of
Department of Land and Natural
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Resources and in his personal capacity;
CURT COTTRELL, in his capacity as
Member of Department of Land and
Natural Resources He’eia State Park Lease
Selection Committee, Department of Land
and Natural Resources of the State of
Hawaii, and other DLNR scope of
employment duties, and in his personal
capacity; RAYMOND SANBORN, in his
capacity as President and Chairman of the
Board of Kama’aina Care Inc., and in his
personal capacity; STEVEN THOMPSON,
in his capacity as Chairman of Department
of Land and Natural Resources, He’eia
State Park Lease Selection Committee,
Department of Land and Natural
Resources of the State of Hawaii, and
other DLNR scope of employment duties,
and in his personal capacity;
KAMA’AINA CARE INCORPORATED;
JOHN AND JANE DOES 1-40; DOE
PARTNERSHIPS 1-20; DOE
CORPORATIONS 1-30; OTHER DOE
ENTITIES 1-30,
Defendants - Appellees.
Appeals from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
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Submitted February 13, 2013 **
Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
In case No. 11-15510, Muriel B. Seto, Friends of He’eia State Park, Hui
Malama ‘Aina O Laie, and Dawn K. Wasson (“Plaintiffs”) appeal from (1) the
district court’s order dismissing Plaintiffs’ verified complaint under Federal Rule
of Civil Procedure 41(b), (2) the magistrate judge’s order denying Plaintiffs’
Motion to Seek Leave to File First Amended Complaint, (3) the district court’s
order denying Plaintiffs’ Motion to Disqualify Judge Susan Oki Mollway From
Hearing Further Matters in the Above Entitled Case, and (4) the district court’s
order dismissing Plaintiffs’ ninth cause of action. In case No. 12-15099, Plaintiffs
appeal from the district court’s order adopting the magistrate judge’s findings and
recommendations and imposing Federal Rule of Civil Procedure 11 sanctions
against counsel in the amount of $70,257.66. The facts are known to the parties.
We affirm.
No. 11-15510
1. We review a district court’s “dismissal for failure to comply with a court
order under [Federal Rule of Civil Procedure] 41(b) . . . for abuse of discretion.”
**
The panel unanimously concludes case No. 11-15510 is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
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Johns v. Cnty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); see also Hearns v.
San Bernardino Police Dep’t, 530 F.3d 1124, 1129 (9th Cir. 2008) (“Federal Rule
of Civil Procedure 41(b) authorizes a district court to dismiss a complaint with
prejudice for failure to comply with Rule 8(a).”). We will reverse a district court’s
decision as an abuse of discretion only where we “determine de novo [that] the trial
court identified the [in]correct legal rule to apply,” or we “determine [that] the trial
court’s application of the correct legal standard was (1) illogical, (2) implausible,
or (3) without support in inferences that may be drawn from the facts in the
record.” United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en
banc) (internal quotation marks omitted).
“District courts have inherent power to control their dockets. In the exercise
of that power they may impose sanctions including, where appropriate, default or
dismissal.” Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986)
(per curiam). “Pursuant to Federal Rule of Civil Procedure 41(b), the district court
may dismiss an action for failure to comply with any order of the court.” Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Dismissal is a harsh penalty,
however, so a district court must only employ this measure in “extreme
circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). But
see McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (“The harshness of a
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dismissal with prejudice is directly proportionate to the likelihood that plaintiff
would prevail if permitted to go forward to trial.” (internal quotation marks
omitted)).
Here, Plaintiffs’ verified complaint was in clear violation of Federal Rule of
Civil Procedure 8. See McHenry, 84 F.3d at 1177; Nevijel v. N. Coast Life Ins.
Co., 651 F.2d 671, 674 (9th Cir. 1981); Schmidt v. Herrmann, 614 F.2d 1221, 1224
(9th Cir. 1980); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969).
Plaintiffs repeatedly failed to comply with the district court’s orders directing them
to remedy the drastic shortcomings of their pleadings. Defendants incurred
expenses defending against Plaintiffs’ allegations and, without knowing the crux of
the claims leveled against them, were unfairly handicapped in defending
themselves if the case went forward. Moreover, Plaintiffs were warned several
times that failure to comply with the district court’s orders would result in
automatic dismissal. The district court did not abuse its discretion in dismissing
Plaintiffs’ verified complaint.
2. A motion for leave to amend is a nondispositive motion which a
magistrate judge may properly decide. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.
72(a); U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102
& n.1 (9th Cir. 1985), superseded by rule on other grounds as recognized by
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Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). Federal
Rule of Civil Procedure 72(a) provides, however, an opportunity for a party to file
objections to the magistrate judge’s order, and “[a] party may not assign as error a
defect in the [magistrate judge’s] order not timely objected to.” Fed. R. Civ. P.
72(a). We have held that “a party who fails to file timely objections to a magistrate
judge’s nondispositive order with the district judge to whom the case is assigned
forfeits its right to appellate review of that order.” Simpson, 77 F.3d at 1174.
Plaintiffs failed to file any objections to the magistrate judge’s nondispositive
order, forfeiting their right to appellate review of this issue.
3. We review a “district court’s determination of whether recusal or
disqualification is necessary,” under 28 U.S.C. § 455, for an abuse of discretion.
E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1294 (9th Cir. 1992).
“Section 455 requires not only that a judge be subjectively confident of his ability
to be evenhanded, but also that an informed, rational, objective observer would not
doubt his impartiality.” Bernard v. Coyne (In re Bernard), 31 F.3d 842, 844 (9th
Cir. 1994).
The record is devoid of any indication that the district judge was personally
biased against Plaintiffs, or had any personal knowledge of the case, or that any
other reason existed for disqualifying the district judge under 28 U.S.C. § 455.
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The district court’s characterization of Plaintiffs as “disgruntled former tenants”
and “unsuccessful bidders” did not evince any bias. Likewise, there is no evidence
the district judge was predisposed against Plaintiffs or had predetermined the case.
Nothing in the record raises any objective question as to the district judge’s
impartiality in this case. Thus, the district court did not abuse its discretion in
denying the motion for disqualification.
4. We need not reach Plaintiffs’ challenge to the district court’s order
dismissing their ninth cause of action because it is moot given that the district court
did not err in dismissing the verified complaint for failure to comply with Federal
Rule of Civil Procedure 8. But, regardless, the district court did not err in
dismissing Plaintiffs’ ninth cause of action based on the National Historic
Preservation Act. See Shanks v. Dressel, 540 F.3d 1082, 1092 (9th Cir. 2008).
No. 12-15099
We review a district court’s imposition of sanctions under Federal Rule of
Civil Procedure 11 for an abuse of discretion. Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990); Sneller v. City of Bainbridge Island, 606 F.3d 636, 638
(9th Cir. 2010). Federal Rule of Civil Procedure 11 “authorizes a court to impose a
sanction on any attorney, law firm, or party that brings a claim for an improper
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purpose or without support in law or evidence.” Sneller, 606 F.3d at 638–39; see
also Fed. R. Civ. P. 11(b), (c).
When, as here, a complaint is the primary focus of Rule 11
proceedings, a district court must conduct a two-prong
inquiry to determine (1) whether the complaint is legally or
factually baseless from an objective perspective, and (2) if
the attorney has conducted a reasonable and competent
inquiry before signing and filing it.
Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (internal quotation marks
omitted). Here, Plaintiffs’ verified complaint was wholly without legal basis, and
there is no evidence that Plaintiffs’ counsel engaged in adequate legal research
prior to filing the verified complaint. See Christian v. Mattel, Inc., 286 F.3d 1118,
1127–29 (9th Cir. 2002).
Moreover, the motion for sanctions under Federal Rule of Civil Procedure
11 was not barred by res judicata because the previous “Motion for Award of Costs
and Stay of Proceedings Pursuant to FRCP 41(d)” did not present an identity of
either claims or issues. See Cell Therapeutics Inc. v. Lash Grp. Inc., 586 F.3d
1204, 1212 (9th Cir. 2010); Littlejohn v. United States, 321 F.3d 915, 923 (9th Cir.
2003). The district court did not err in dismissing Harold Shepherd from the
motion for sanctions because Shepherd did not sign the relevant pleadings. See
Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 546 (1991).
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Plaintiffs have not disputed the reasonableness of the amount of sanctions.
Therefore, the district court did not abuse its discretion in granting the motion for
sanctions in the amount of $70,257.66.
The district court’s judgments in case No. 11-15510 and case No. 12-15099
are AFFIRMED.
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