Knepper et al v. Burger et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
JOSHUA KNEPPER and
LESLIE LUM-KING,
Plaintiffs,
v.
MICHAEL BURGER, et al.,
Defendants.
Case No. 22-cv-00556-DKW-WRP
ORDER (1) GRANTING
DEFENDANT CITY AND
COUNTY OF HONOLULU’S
MOTION FOR JUDGMENT ON
THE PLEADINGS, AND (2)
GRANTING PARTIAL LEAVE TO
AMEND
Defendant City & County of Honolulu (City) moves for judgment on the
pleadings (motion) relating to certain claims alleged in Plaintiffs Joshua Knepper
(Knepper) and Leslie Lum-King’s (collectively, Plaintiffs) Second Amended
Complaint (SAC). 	Specifically, the City argues that the Court’s prior dismissal of
certain claims, which have not been amended, should remain dismissed, despite
those claims being re-alleged in the SAC. 	The City further argues that Claims Six
and Seven make only conclusory assertions of misconduct and, thus, should be
dismissed. 	In response, Plaintiffs state that, in the SAC, they do not intend to
“resuscitate” claims previously dismissed. 	Plaintiffs argue, though, that Claims Six
and Seven are adequately pled in the SAC.
Having reviewed the SAC and the parties’ briefing concerning the same, the
Court agrees with the City that, as alleged, Claims Six and Seven do not adequately
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(or fairly) provide notice of their underlying factual basis. 	Notably, while facts that
could underpin those claims are alleged somewhere in the 26-page SAC, only in
Plaintiffs’ response is it more precisely explained. 	Because of this, while dismissal
is appropriate, it is also appropriate, given that this is the first time Plaintiffs have
been apprised of the deficiencies with respect to Claims Six and Seven, to grant
leave to amend the same to the extent set forth below. 	As for the claims previously
dismissed, in light of Plaintiffs’ agreement that they are not “resuscitate[d]” in the
SAC, the motion is GRANTED with respect to the same and without leave to
amend.
PROCEDURAL BACKGROUND
On December 30, 2022, Plaintiffs initiated this proceeding with the filing of a
Complaint against the City and Defendants Michael Burger, Allen-John Vergura,
Frederick Apo, and Leonardo Juarez. 	Dkt. No. 1. 	On June 8, 2023, after the filing
of an Amended Complaint, Dkt. No. 35, the City moved for dismissal of certain, but
not all, claims therein, Dkt. No. 37. 	On July 28, 2023, the Court granted in part and
denied in part the motion to dismiss. 	Dkt. No. 54. 	In relevant part, the Court
dismissed Claim Three, a claim brought under Monell v. Dep’t of Soc. Services of
the City of New York, 436 U.S. 658 (1978), to the extent it relied upon a ratification
or failure-to-train theory of liability, but allowed the claim to proceed to the extent it
relied upon an unofficial custom of the City. 	The Court further dismissed Claim
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Four, a negligence claim, to the extent it relied upon a theory of negligent training,
supervision, or retention against the City. 	Plaintiffs, though, were allowed until
August 18, 2023 to amend any claim dismissed in the July 28, 2023 Order.
Plaintiffs, however, did not file an amended complaint on or before August
18, 2023. 	Instead, with leave of Court, on February 29, 2024, Plaintiffs filed the
SAC. 	Dkt. Nos. 87-88. 	Therein, along with asserting all claims, including the
dismissed claims, raised in the Amended Complaint, Plaintiffs also asserted three
additional claims (Claims Six to Eight) concerning alleged violations of the First,
Fourth, and Fourteenth Amendments. 	Dkt. No. 88.
On May 17, 2024, the City filed a motion for judgment on the pleadings with
respect to the SAC. 	Dkt. No. 95. 	First, the City moves for “confirm[ation]” of the
partial dismissal of Claims Three and Four. 	Second, the City moves for dismissal
of Claims Six and Seven on the grounds that those claims are “unclear” and
“deficiently” pled. 	Plaintiffs have, at least in part, opposed the motion. 	Dkt. No.
97. 	First, Plaintiffs state that they do not intend to “resuscitate” claims dismissed in
the July 28, 2023 Order. 	Second, Plaintiffs argue that Claim Six adequately alleges
a First Amendment “right to redress grievances” claim, and Claim Seven adequately
alleges a First Amendment “retaliation” claim. 	The City has filed a reply in support
of the motion. 	Dkt. No. 98.
This Order now follows.
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STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) provides that, “[a]fter the pleadings are
closed…a party may move for judgment on the pleadings.” 	The standard
governing a Rule 12(c) motion is “functionally identical” to that governing a Federal
Rule of Civil Procedure 12(b)(6) motion. 	United States ex rel. Cafasso v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011).
Rule 12(b)(6) authorizes the Court to dismiss a complaint that fails “to state a
claim upon which relief can be granted.” 	Rule 12(b)(6) is read in conjunction with
Rule 8(a), which requires “a short and plain statement of the claim showing that the
pleader is entitled to relief.” 	Fed.R.Civ.P. 8(a)(2). 	Pursuant to Ashcroft v. Iqbal,
“[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” 	556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In addition, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” 	Id. 	Accordingly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” 	Id. (citing Twombly, 550 U.S. at 555).
Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” 	Id. (citing Twombly, 550 U.S. at 556). 	Factual
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allegations that only permit the court to infer “the mere possibility of misconduct”
do not show that the pleader is entitled to relief, as required by Rule 8(a)(2). 	Id. at
679.
When a complaint fails to state a plausible claim, leave to amend should be
given when “justice so requires.” 	Fed.R.Civ.P. 15(a)(2). 	Justice does not require
leave to amend when (1) it would prejudice an opposing party, (2) it is sought in bad
faith, (3) it would produce an undue delay in litigation, (4) it would be futile, or (5)
there has been repeated failure to cure a deficiency. 	Abagninin v. AMVAC Chem.
Corp., 545 F.3d 733, 742 (9th Cir. 2008); AmerisourceBergen Corp. v. Dialysist
West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).
DISCUSSION
As mentioned above, the City moves for relief in two principal respects.
First, the City moves for “confirm[ation]” of the partial dismissal of Claims Three
and Four. 	Second, the City moves for dismissal of Claims Six and Seven on the
ground that those claims are “unclear” and “deficiently” pled.
In light of Plaintiffs’ opposition, the first matter can be dealt with in short
order. 	Specifically, Plaintiffs acknowledge that they do not seek to “resuscitate”
previously dismissed claims. 	Dkt. No. 97 at 5. 	Accordingly, so the record is clear,
Claim Three, to the extent it relies upon ratification or a failure-to-train, and Claim
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Four, to the extent it relies upon negligent training, supervision, or retention, remain
dismissed in this proceeding.
This leaves the City’s arguments with respect to Claims Six and Seven.
Essentially, the City argues that these claims are “unclear” because it is not possible
to distinguish them from other claims in the SAC, and they do not adequately plead
First or Fourteenth Amendment claims. 	Dkt. No. 95 at 4-8. 	In response, Plaintiffs
argue that Claims Six and Seven, respectively, allege a First Amendment “right to
redress grievances” claim and a First Amendment “retaliation” claim. 	Dkt. No. 97
at 5-8.
Having reviewed the SAC and the parties’ briefing related thereto, the Court
agrees with the City that Claims Six and Seven are unclear to the extent that they do
not provide meaningful notice of the alleged facts underpinning the same.
However, because this deficiency could be ameliorated by amendment, dismissal is
without prejudice, as explained further below.
The lack of clarity to Claims Six and Seven is demonstrated by Plaintiffs’ own
opposition. 	In the SAC, Claim Six is captioned as being a First Amendment claim
concerning the “right to redress grievances.” 	Dkt. No. 88 at 23. 	Other than
conclusory assertions that such a right was violated and incorporating by reference
78 previous paragraphs, there is no attempt to allege the facts allegedly supporting
the claim. 	See generally id. at ¶¶ 79-85. 	In their opposition, for the first time,
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Plaintiffs assert that Claim Six is premised upon Defendant Burger having criminal
charges filed against Plaintiff Knepper due to Knepper bringing a lawsuit against
Burger. 	Dkt. No. 97 at 6-7. 	Plaintiffs further argue that these alleged facts support
a First Amendment violation, citing two decisions of the Ninth Circuit. 	Id. at 7.
Plaintiffs’ citation to those decisions, however, relate to a First Amendment
retaliation claim, even though, as captioned in the SAC, Claim Six is meant to be a
First Amendment “right to redress grievances” claim. 	See id. (citing Blair v. Bethel
Sch. Dist., 608 F.3d 540, 543 n.1 (9th Cir. 2010) (explaining the legal standard for a
First Amendment retaliation claim); Ariz. Students’ Ass’n v. Ariz. Bd. of Regents,
824 F.3d 858, 867 (9th Cir. 2016) (same)).
As for Claim Seven, in the SAC, it is captioned as a Due Process retaliation
claim. 	Dkt. No. 88 at 24. 	In addition, like Claim Six, other than conclusory
assertions that the Fourteenth Amendment’s Due Process Clause was violated and
incorporating by reference 85 previous paragraphs, there is no attempt to allege the
facts supporting the claim. 	See generally id. at ¶¶ 86-93. 	Instead, in their
opposition, for the first time, Plaintiffs explain that Claim Seven is premised upon
Defendant Burger “directing” a State prosecutor to file criminal charges against
Knepper due to Knepper bringing a lawsuit against Burger. 	Dkt. No. 97 at 7-8.
Plaintiffs further assert, contrary to the caption for Claim Seven in the SAC, that
Claim Seven is a First Amendment retaliation claim. 	Id. at 7-8.
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Put simply, while Plaintiffs’ opposition may provide some factual clarity to
Claims Six and Seven, it equally either contradicts the SAC or obfuscates the legal
basis for the same. 	Notably, as explained in the opposition, not only do both
Claims Six and Seven now appear to be First Amendment retaliation claims, but
both claims appear to be premised upon the same set of facts: Burger allegedly
retaliating against Knepper for bringing this lawsuit. 	Thus, the presence of both
Claim Six and Claim Seven in the SAC would appear to be unnecessary, i.e., at
most, one claim would seem to suffice to cover the factual and legal basis set forth in
the opposition.
In this light, Plaintiffs must amend the SAC. 	Specifically, Plaintiffs are
granted leave to amend the SAC solely to the extent that they may amend Claims Six
and Seven to accurately assert the legal foundation of the claims and the specific
facts supporting them. 	Should the legal and factual basis of the claims be the same,
Plaintiffs may only amend the SAC to bring one such claim.1
CONCLUSION
For the reasons stated herein, the motion for judgment on the pleadings, Dkt.
No. 95, is GRANTED. 	Plaintiffs may have until July 12, 2024 to amend Claims
1 Further, in any amended complaint Plaintiffs may file, they need not re-allege Claims Three and
Four to the extent they rely on legal theories that have already been dismissed. 	See Lacey v.
Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (stating that claims dismissed with
prejudice need not be re-alleged in an amended complaint to preserve them for appeal). 	To the
extent Plaintiffs do re-allege Claims Three and Four on the basis of legal theories that have already
been dismissed, Plaintiffs will not be permitted to proceed in this case based upon those theories,
and Defendants need not move once again to “confirm” that the claims remain dismissed.
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Six and Seven of the SAC to the extent set forth herein. 	Should Plaintiffs choose to
so amend, they must also re-allege all other claims not previously dismissed and on
which they wish to proceed in this action. 	Should Plaintiffs choose not to file a
further amended complaint by July 12, 2024 this action will proceed on the claims
remaining in the SAC.
IT IS SO ORDERED.
Dated: June 25, 2024 at Honolulu, Hawai‘i.
___________________________
Derrick K. Watson
Chief United States District Judge
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