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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) CIVIL No. CV12-00469 JMS RLP ) ) MEMORANDUM OF LAW IN ) SUPPORT OF MOTION ) Plaintiffs, ) ) vs. ) ) CITY AND COUNTY OF ) HONOLULU; ANDREW LUM, IN HIS ) ) PERSONAL AND OFFICIAL ) CAPACITY; JOHN DOES 1-10 IN ) THEIR PERSONAL AND OFFICIAL ) ) CAPACITIES, ) ) Defendants. ) HAWAII DEFENSE FOUNDATION, CHRISTOPHER BAKER, and DEREK SCAMMON, MEMORANDUM OF LAW IN SUPPORT OF MOTION I. STATEMENT OF THE CASE On August 21, 2012, Plaintiffs CHRISTOPHER BAKER, DEREK SCAMMON and the HAWAII DEFENSE FOUNDATION brought the instant action, raising two (2) 1983 claims and naming the CITY AND COUNTY OF HONOLULU, ANDREW LUM and JOHN DOES 1-10 as party-defendants. Although the pleading is sufficiently vague as against whom the claims are being made, it appears that they are leveled against all defendants. In addition, all of the individual defendants have been named in both their individual and official capacities. Complaint, p. 3, 12-13.

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On September 6, 2012, this Honorable Court deemed Plaintiffs separate motion for a Preliminary Injunction moot. On June 28, 2013, the Courts deadline for adding parties expired. See Rule 16 Scheduling Order (Dkt # 31), p. 2, 5. On October 23, 2012, Defendants LUM and the City filed the instant motion seeking judgment on the pleadings with respect to the claims against LUM in his official capacity, the claims against JOHN DOES 1-10 and any claim seeking injunctive relief. II. STANDARD GOVERNING MOTIONS FOR JUDGMENT ON THE PLEADINGS This motion is governed by Rule 12(c) of the Federal Rules of Civil Procedure, which states as follows: (c) Motion for Judgment on the Pleadings: After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed. R. Civ. P. 12(c) (2000). In Pahk v. Hawaii, 109 F. Supp. 2d 1262 (Haw. 2000), this court stated: The standard governing a Rule 12(c) motion for judgment on the pleadings is essentially the same as that governing a Rule 12(b)(6) motion. Lake Tahoe Watercraft Rec. Assn v. Tahoe Regional Planning Agency, 24 F. Supp.2d 1062, 1066 (E.D. Cal. 1998). See also Saiki v. LaSalle Bank Natl Assn., not reported in

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F.Supp.2d, 2011 WL 601139 (D.Hawai'i) (stating that Rule 12(c) motions are virtually identical to Rule 12(b)(6) motions and citing Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir.1989)) The motion will be granted if, accepting as true all material allegations contained in the nonmoving party's pleadings, the moving party is entitled to judgment as a matter of law. Lake Tahoe Watercraft at 1066. Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law. Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). Courts apply the pleading requirements, established by the U.S. Supreme Court in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), to Rule 12(c) motions. See Saiki v. LaSalle Bank Natl Assn., not reported in F.Supp.2d, 2011 WL 601139, at *3 (D.Hawai'i 2011)1 (citing Wahl v. Am. Sec. Ins. Co., 2010 WL 1881126, at *3 (N.D.Cal. May 10, 2010) and Point Ruston, L.L.C. v. Pac. Nw. Reg'l Council of the United Bhd. of Carpenters & Joiners, 658 F.Supp.2d 1266, 1273 (W.D.Wash. 2009)). // //

A true and correct copy of Saiki is attached hereto as Exhibit B. 2

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III.

ARGUMENT Plaintiffs Complaint alleges two (2) 1983 claims premised upon the

purported violations of their First Amendment Right to Free Speech and Fourteenth Amendment Right to Due Process. See Complaint, pp. 11-12. However, their Complaint is deficient in several respects and, therefore, judgment on the pleadings is appropriate, at least in part. A.
The Claims Against Captain Lum in His Official Capacity Are Duplicative of those Against the City, are Unnecessary and Should Be Dismissed

In addition to being named in his individual capacity, Defendant LUM has also been sued in his official capacity. See Complaint, at p. 3, 12. However, a suit against a governmental officer in his official capacity is the same as a suit against the entity of which the officer is an agent. McMillian v. Monroe County, Ala., 520 U.S. 781, 785 fn.2, 117 S.Ct. 1734, 1737 fn.2 (1997) [quoted in part, internal quotes and ellipses omitted]. See also Satterfield v. Borough of Schuylkill Haven, 12 F.Supp.2d 423 (E.D. Pa.1998) (holding that public official sued in his official capacity is legally indistinct from the municipality for which he serves.). Some courts have specifically dealt with the situation where a municipality and one of its police officials, named only in his/her official capacity, are sued under the same causes of action. In those cases, the courts have found the officials unnecessary

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parties and dismissed them outright. See Beverly v. Casey,2 2006 WL 298810 (D.Neb. 2006) attached hereto as Exhibit C (Because suing a municipal official in his official capacity is equivalent to suing the municipality, the police chief is an unnecessary party.); and Admiral Theatre v. City of Chicago, 832 F.Supp. 1195, 1200 (N.D.Ill.1993) (Where the unit of local government is sued as well, the suit against the officials is redundant and should therefore be dismissed.). Here, as in the aforementioned cases, the City is named as a separate party defendant. See Complaint, p. 4, 17. Consequently, Plaintiffs claims against Defendant LUM in his official capacity are clearly duplicative and should be dismissed.

B. The Claims Against the John Doe Officers Must Also Be Dismissed Plaintiff has also, arguably, raised claims against Defendants John Doe 110. See Complaint, p. 3, 13-14; pp. 11-12. These claims should likewise be dismissed because Plaintiff has failed to specifically identify the Defendants John Doe despite ample opportunity to do so. The Ninth Circuit has noted that [a]s a general rule, the use of John Doe to identify a defendant is not favored. Gillespie v. Civiletti, 629 F.2d 637, 642, (1980). Where the identity of alleged defendants is not known prior to filing a complaint, the plaintiff will be given an opportunity through discovery to identify the unknown defendants, unless it is clear that the complaint would be dismissed

This case was not reported in F.Supp.2d and is offered as persuasive authority only pursuant to Arakaki v. Cayetano, 299 F.Supp.2d 1090, 1094 fn. 3 (D.Hawaii. 2002). 4

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on other grounds, or that discovery would not uncover the identities. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). However, the complaint should be dismissed where the plaintiff has been given ample opportunity but failed to identify the unknown defendants. Becker v. ODOC, 170 F. Supp.2d 1061, 1069 (D. Oregon 2001). Despite fourteen (14) months having elapsed since filing their complaint, Plaintiffs have failed to identify the John Doe defendants who they allege were responsible for executing, maintaining and administering the HPD Facebook page. Complaint, p. 3, 13. The deadline to amend their pleading to add additional parties expired on June 28, 2013. See Dkt # 31. Consequently, all claims against Defendants John Doe 1-10 should be dismissed. C. Plaintiff Lacks Standing to Seek an Injunction Against Lum and/or the City Plaintiffs complaint seeks both declaratory and injunctive relief. Complaint, pp. 12-13, 3-5. In order to obtain injunctive relief, a plaintiff must show a present case in controversy. Los Angeles v. Lyons, 461 U.S. 95, 101-03, 103 S.Ct. 1660, 1665 -66 (1983). Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects. Lyons, 461 U.S. at 102, 103 S.Ct. at 1665 (quoting OShea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76 (1974). The Court in OShea noted that the prospect of future injury rested on the likelihood that plaintiffs will again be arrested for and charged with
5

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violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners. Id. (internal quotes and brackets removed). The Supreme Court concluded that plaintiffs could not show a case in controversy where the threat of future injury rested on the anticipation that plaintiff would violate the law again and then again be subject to the unconstitutional conduct. Id. Likewise, here, Plaintiffs had several of their postings removed and were temporarily unable to post on HPDs Facebook Page. See Complaint, pp. 4-5, 19-22. However, these harms ended before they filed the instant action. See Plaintiffs Concise Statement of Facts (Dkt #35), p. 3, 8, 10. Moreover, this Court has already deemed Plaintiffs separately-filed motion for a Preliminary Injunction moot. See Dkt # 17. Consequently, Plaintiffs threat of future injury is predicated only upon the possibility that they may again be prohibited from posting on HPDs Facebook page or be prohibited from posting there. As made clear in Lyons and OShea, such tentative future injury fails to state a case in controversy for equitable relief. Id. Thus, such claims lack standing and should be dismissed. IV. CONCLUSION For the foregoing reasons, the City Defendants respectfully requests that this Honorable Court grant the instant Motion for Partial Judgment on the Pleadings. // //

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DATED: Honolulu, Hawaii, October 23, 2013. DONNA Y.L. LEONG Corporation Counsel By: /s/ Curtis E. Sherwood CURTIS E. SHERWOOD Deputy Corporation Counsel Attorney for Defendants ANDREW LUM and the CITY AND COUNTY OF HONOLULU