Miller et al v. Kaneshiro et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL MILLER, JR.; EUGENE
SIMEONA, JR.; PJY ENTERPRISES,
LLC,
Plaintiffs,
vs.
KEITH M. KANESHIRO,
INDIVIDUALLY AND IN HIS
CAPACITY AS FORMER
PROSECUTTING ATTORNEY OF THE
CITY OF COUNTY OF HONOLULU;
HONOLULU POLICE DEPARTMENT;
CITY AND COUNTY OF HONOLULU,
Defendants.
CIV. NO. 23-00129 LEK-WRP
FINDINGS AND
RECOMMENDATION TO DISMISS
ALL CLAIMS AGAINST
DEFENDANT KEITH M.
KANESHIRO WITHOUT
PREJUDICE
FINDINGS AND RECOMMENDATION TO DISMISS ALL CLAIMS
AGAINST DEFENDANT KEITH M. KANESHIRO WITHOUT PREJUDICE
Plaintiffs Michael Miller, Jr., Eugene Simeona, Jr., and PJY
Enterprises, LLC (Plaintiffs) filed their Complaint in state court against Defendants
Keith M. Kaneshiro, Honolulu Police Department (HPD), and the City and County
of Honolulu (City) (collectively, “Defendants”) on November 15, 2022. See
Complaint, ECF No. 1-1. Defendant City was served on February 17, 2023 and
removed this case to federal court on March 9, 2023. See Notice of Removal, ECF
No. 1 at 1-2. Therefore, Plaintiffs’ deadline to serve Defendants Kaneshiro and
Case 1:23-cv-00129-MWJS-WRP Document 17 Filed 09/01/23 Page 1 of 6
PageID.<pageID>

2
HPD was June 7, 2023. See Connolly v. TriWest Healthcare All. Corp., 2019 WL
5386457, at *4 (D. Haw. Oct. 21, 2019) (“Pursuant to Federal Rule of Civil
Procedure 4(m), a plaintiff has 90 days after the notice of removal to serve the
defendant, unless the plaintiff demonstrates good cause.”).
On June 8, 2023, after noting that federal summonses had not been
issued for Defendants Kaneshiro and HPD, the Court directed Plaintiffs to file a
status report detailing the efforts taken to serve these remaining Defendants. See
Minute Order, ECF No. 7; see also Jeong Hae Lee v. Winix, Inc., 2006 WL
8434724, at *2 (C.D. Cal. July 24, 2006) (explaining that where a case has been
removed and a defendant has not yet been served with the complaint prior to
removal, a federal summons must be issued for service of that defendant). In
response to the Court’s Minute Order, Plaintiffs’ Status Report stated that Plaintiffs
would obtain federal summonses to serve the remaining Defendants. See Status
Report, ECF No. 10. Plaintiffs also stated that serving Defendant Kaneshiro has
“proven difficult, as Mr. Kaneshiro’s listed address is on Waialae Ave., but the
process server who previously attempt [sic] to serve Mr. Kaneshiro has not found
Mr. Kaneshiro at this address.” See ECF No. 10.
When no proof of service was filed for either Defendant Kaneshiro or
Defendant HPD, on August 17, 2023, the Court ordered Plaintiffs to show good
cause by August 24, 2023 why all claims against Defendants Kaneshiro and HPD
-- --- ----------------------
Case 1:23-cv-00129-MWJS-WRP Document 17 Filed 09/01/23 Page 2 of 6
PageID.<pageID>

3
should not be dismissed for failure to prosecute under Federal Rules of Civil
Procedure (FRCP) Rules 41(b) and 4(m) (Order to Show Cause). See Minute
Order dated August 17, 2023. On August 24, 2023, Plaintiffs filed their response
to the Order to Show Cause (Response), which stated that Plaintiffs served
Defendant HPD on August 23, 2023. 	See Response, ECF No. 16. Regarding
Defendant Kaneshiro, however, Plaintiffs stated that, on August 23, 2023, they
made an unsuccessful attempt at serving Defendant Kaneshiro at his Waialae
Avenue address, and, again, explained that serving Defendant Kaneshiro has
“proven difficult, as Mr. Kaneshiro’s listed address is on Waialae Ave., but the
process server who previously attempt [sic] to serve Mr. Kaneshiro has not found
Mr. Kaneshiro at this address.” Compare Response, ECF No. 16 with Status
Report, ECF No. 10 (where Plaintiffs appear to copy and paste their statement
indicating that they have not been able to locate Defendant Kaneshiro at the
Waialae Avenue address). The Response also stated that Plaintiffs’ last attempt to
serve Defendant Kaneshiro, prior to their August 23, 2023 attempt, was on March
8, 2023 at the Waialae Avenue address. See Response, ECF No. 16 ¶ 3.
Under FRCP Rule 4(m), a plaintiff must serve a defendant within 90
days after the complaint is filed. See Connolly, 2019 WL 5386457, at *4; Fed. R.
Civ. P. 4(m) (applying Rule 4(m) to removed actions and stating that a plaintiff has
90 days after the notice of removal is filed to serve the defendant). If a defendant
Case 1:23-cv-00129-MWJS-WRP Document 17 Filed 09/01/23 Page 3 of 6
PageID.<pageID>

4
is not served within 90 days after the complaint is filed, the court, on motion or on
its own after notice to the plaintiff, must dismiss the action without prejudice
against that defendant or order that service be made within a specified time. See
Fed. R. Civ. P. 4(m). Where a plaintiff does not show good cause for failing to
timely serve a defendant, the district court has discretion under Rule 4(m) to
dismiss without prejudice the claims against that defendant. See In re Sheehan,
253 F.3d 507, 512-13 (9th Cir. 2001).
To determine whether to dismiss a case for lack of prosecution or
failure to comply with a court order, the court must weigh the following five
factors: (1) the public’s interest in expeditious resolution of litigation; (2) the
court’s need to manage its docket; (3) the risk of prejudice to the defendant; (4) the
availability of less drastic alternatives; and (5) the public policy favoring the
disposition of cases on their merits. See Pagtalunan v. Galaza, 291 F.3d 639, 642
(9th Cir. 2002).
The Court FINDS that Plaintiffs have failed to show good cause and
that the above factors weigh in favor of dismissal here notwithstanding the policy
favoring disposition of cases on their merits. It is noteworthy that Plaintiffs did not
make any attempts to serve Defendant Kaneshiro from March 8, 2023 to August
23, 2023 despite the Court’s request for a Status Report on June 8, 2023 detailing
the efforts taken to serve these remaining Defendants. Further, it appears from
Case 1:23-cv-00129-MWJS-WRP Document 17 Filed 09/01/23 Page 4 of 6
PageID.<pageID>

5
Plaintiffs’ Status Report that they understood back in March 2022, or at least by
June 2022, that they would not find Defendant Kaneshiro at the Waialae address,
yet they made no request to serve him by alternative means. Additionally,
Plaintiffs did not request an extension of their deadline to serve Defendant
Kaneshiro in their August 24, 2023 Response despite their deadline to serve
Defendant Kaneshiro having closed on June 7, 2023. Plaintiffs’ Response simply
recounts for the Court that Plaintiffs have not attempted service of Defendant
Kaneshiro since March 8, 2023, except that on the day before their response to the
Order to Show Cause was due, they attempted to serve Defendant Kaneshiro at the
same Waialae address where they have not been able to locate Defendant.
Consequently, the Court FINDS AND RECOMMENDS that all claims against
Defendant Kaneshiro be dismissed without prejudice. 1
1 Within fourteen days after a party is served with the Findings and
Recommendation, pursuant to 28 U.S.C. § 636(b)(1), a party may file written
objections in the United States District Court. A party must file any objections
within the fourteen-day period to preserve appellate review of the Findings and
Recommendation.
Case 1:23-cv-00129-MWJS-WRP Document 17 Filed 09/01/23 Page 5 of 6
PageID.<pageID>

6
CONCLUSION
For the reasons stated herein, the Court FINDS AND
RECOMMENDS all claims against Defendant Kaneshiro be dismissed without
prejudice.
IT IS SO FOUND AND RECOMMENDED.
DATED AT HONOLULU, HAWAII, September 1, 2023.
Miller v. Kaneshiro, et al.; CIVIL NO. 23-00129 LEK-WRP; FINDINGS AND
RECOMMENDATION TO DISMISS ALL CLAIMS AGAINST DEFENDANT
KEITH M. KANESHIRO WITHOUT PREJUDICE
Case 1:23-cv-00129-MWJS-WRP Document 17 Filed 09/01/23 Page 6 of 6
PageID.<pageID>