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Electronically Filed
Supreme Court
SCWC-29877
26-APR-2011
09:20 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
IN THE MATTER OF RICHARD BLAISDELL
NO. SCWC-29877
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29877; CIVIL NO. 08-1-0958)
APRIL 26, 2011
RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.
OPINION OF THE COURT BY DUFFY, J.
Petitioner/Plaintiff-Appellant Richard Blaisdell
(Blaisdell) filed a timely application for writ of certiorari
(Application), urging this court to review the Intermediate Court
of Appeals’ (ICA) November 16, 2010 judgment on appeal in support
of its October 21, 2010 summary disposition order (SDO), which
affirmed the Circuit Court of the First Circuit’s (circuit court)
May 14, 2009 Final Separate Judgment (Judgment) denying
Blaisdell’s motion for a temporary restraining order and/or
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preliminary injunction, and dismissing all claims in Blaisdell’s
complaint with prejudice.1 We accepted the Application on
March 23, 2011.
Blaisdell’s Application presents the following
questions:
1. Did the ICA err by affirming the court’s dismissal, with
prejudice, naming 14 Defendants, who were never served?
2. Did the ICA err by affirming the court’s jurisdiction
over this case when, in fact, the court did not have
jurisdiction over the 14 defendants the court, itself,
named?
3. Did the ICA err by affirming the court’s decision to
deny the return of Blaisdell’s legal audio tapes that prove
his illegal conviction of his criminal case and denial of
his Constitutional Rights and due process?
Based on the analysis below, we vacate the Judgment dismissing
Blaisdell’s complaint with prejudice.
I. BACKGROUND
This case arises from the confiscation of audio tapes
(tape cassettes) belonging to Blaisdell2, a Hawai#i state inmate
who has been incarcerated in the Saguaro Correctional Center in
Eloy, Arizona, following his November 10, 1994 conviction of five
counts of sexual assault in the first degree, eleven counts of
sexual assault in the third degree, and one count of terroristic
threatening. See Blaisdell v. State, No. 27825, 2007 WL 39306,
at *1 (Haw. App. 2007). On May 13, 2008, Blaisdell filed a
1
The Honorable Karl K. Sakamoto presided.
2
Blaisdell is a pro se litigant in this case.
2
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pleading entitled “Motion For Court to Order Saguaro Prison
Officials to Supply Information, Request for Court to Enjoin
Prison Officials to Give Blaisdell His Legal Material Forthwith”,
which, inter alia, sought to order Saguaro Prison Officials to
return “legal work and supplies” to his possession.3 As noted by
the ICA in its SDO, the circuit court interpreted the pleading as
a civil complaint asserting causes of action under the Freedom of
Information Act, with claims for injunctive relief and monetary
damages.4 See SDO at 1. Blaisdell did not serve his complaint on
anyone, nor did he specifically name any defendants. See id. at
2.
On May 15, 2008, the circuit court5 denied Blaisdell’s
request for injunctive relief, without prejudice, stating that he
did not meet the requirements for injunctive relief under Hawai#i
Rules of Civil Procedure (HRCP) Rule 65(b)6:
3
These items, including “legal material, envelopes, writing paper,
case files, [and] legal lawbooks”, were allegedly confiscated from Blaisdell
on April 23, 2008, when he was charged with conspiracy, failure to follow
prison rules, and violating “Arizona State, Federal and Local Laws.” An in-
prison hearing was conducted on April 29, 2008, and Blaisdell was sentenced to
sixty days in segregation. He was released from segregation on June 25, 2008,
and on July 21, 2008, Blaisdell’s property, except for the tape cassettes, was
returned to him.
4
We agree with the circuit court’s interpretation of Blaisdell’s
pleading as a civil complaint.
5
The Honorable Karen S.S. Ahn presided.
6
HRCP Rule 65(b) states, in relevant part, that
[a] temporary restraining order may be granted without
written or oral notice to the adverse party or that party’s
continue...
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Blaisdell has not suggested that he has served the instant
motion or otherwise notified the opposing party of the
motion. Neither has he provided a declaration explaining
why his injunctive request must be granted before the
opposing party or its attorney can be heard nor has he
certified the efforts made to give notice and the reasons
supporting a claim that notice should not be required.
. . .
Blaisdell claims that certain “legal material, envelopes,
writing paper, case files, [and] legal lawbooks” were taken
from him on April 22, 2008, and that prison officials
promised to return materials but thus far have not. . . .
While [Blaisdell] has a right to adequate and effective
access to courts, based upon his general descriptions, it is
difficult to assess the nature of any alleged irreparable
injury he will suffer or what specific relief the Court
should order, to wit, which, if any, materials must be
returned to him. . . . [T]he Court has weighed the
following: 1) whether plaintiff is likely to prevail on the
merits 2) whether the balance of irreparable damage favors
the issuance of a temporary injunction and 3) whether the
public interest supports granting the injunction.
On July 8, 2008, the case was reassigned.7 On
August 1, 2008, Blaisdell filed an “Emergency Motion for a T.R.O.
and/or Preliminary Injunction,” (Emergency Motion) which again
sought to enjoin Saguaro Prison Officials from destroying
thirteen confiscated tape cassettes alleged to contain evidence
that would prove prosecutorial misconduct which would exonerate
6
...continue
attorney only if (1) it clearly appears from specific facts
shown by affidavit or by the verified complaint that
immediate and irreparable injury, loss, or damage will
result to the applicant before the adverse party or that
party’s attorney can be heard in opposition, and (2) the
applicant’s attorney certifies to the court in writing the
efforts, if any, which have been made to give the notice and
the reasons supporting the claim that notice should not be
required.
HRCP Rule 65(b) (2000).
7
The Honorable Karl K. Sakamoto was assigned the case.
4
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him in his criminal case.8 In this Emergency Motion, unlike the
previous motion that was denied, Blaisdell attempted to conform
the motion to meet the injunctive requirements of HRCP Rule
65(b), by alleging that: (1) he was likely to prevail on the
merits; (2) he would suffer irreparable harm without the
injunction; and (3) public policy favored the issuance of the
injunction. In addition, the Emergency Motion made a specific
request for thirteen tape cassettes to be returned to him, rather
than a general request for the return of “legal work and
supplies” in the first Motion. Nonetheless, the Emergency Motion
was denied on October 21, 2008.
On November 13, 2008, Blaisdell filed a notice of
appeal from the circuit court’s October 21, 2008 order. However,
the ICA dismissed the appeal on March 4, 2009, because the
circuit court had not yet entered a final, separate, and
appealable judgment. Twice, on March 12, 2009 and April 9, 2009,
Blaisdell moved the circuit court to issue a Final Separate
Judgment. On April 20, 2009, after the circuit court did not
respond to these motions, Blaisdell filed a writ of mandamus to
8
Blaisdell alleges that the
tapes prove that the Deputy Prosecutor, Thalia Murphy and
others were inside the police interview rooms whispering the
desired answers to the alleged victims during their police
interviews when everyone present swore that “NO ONE WAS IN
THE ROOMS WITH THE ALLEGED VICTIMS AND THE POLICE OFFICER
CONDUCTING THE INTERVIEWS.”
5
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compel the circuit court to enter a Final Separate Judgment. On
May 4, 2009, this court ordered the circuit court to answer the
mandamus within fifteen days. Blaisdell v. Sakamoto, No. 29776
(Haw.) 2009. On May 14, 2009, the circuit court entered its
Final Separate Judgment (Judgment) in favor of fourteen
“defendants”9 who were not named in Blaisdell’s complaint. In
addition to denying Blaisdell’s request for a temporary
restraining order and/or preliminary injunction, the circuit
court dismissed all other claims in Blaisdell’s complaint with
prejudice. The circuit court did not explain why it decided to
name those fourteen individuals and/or entities as defendants, or
by what authority it sua sponte named them. In addition, the
circuit court did not explain why Blaisdell’s claims for relief
were being denied with prejudice, rather than without prejudice.
9
The circuit court, sua sponte, named the following as defendants
in this matter:
• State of Hawai#i - State Attorney General of Hawai#i
• Department of the Prosecuting Attorney, City & County
of Honolulu - Deputy Prosecutor Thalia Murphy
• State of Arizona - State Attorney General of Arizona
• Saguaro Prison/Saguaro Correctional Center
• Warden Thomas
• A/W B. Griego
• J. Bradley A/W
• Chief of Security Lopez
• Captain Olsen
• Unit Manager Garcia
• Lieutenant Hernandez
• Sargent Flores
• Property Manager/Officer Anthony
• Counselor Jandt
Prior to the circuit court’s Judgment, there were no named defendants.
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On June 5, 2009, Blaisdell filed his notice of appeal from the
circuit court’s Judgment.
Blaisdell filed his opening brief with the ICA on
August 31, 2009, contending, in pertinent part, that the circuit
court: (1) erred by dismissing the case with prejudice; (2) erred
by naming fourteen defendants not mentioned in the case; and (3)
abused its discretion by dismissing, with prejudice, those
fourteen defendants. Blaisdell asserted that the circuit court
abused its discretion by dismissing the case with prejudice, “all
in retaliation for filing the mandamus.”
The ICA disagreed with Blaisdell and summarily affirmed
the circuit court’s Judgment stating that
[u]pon careful review of the record and the brief submitted
by Blaisdell and having given due consideration to the
arguments advanced and the issues raised by him, as well as
the relevant statutory and case law, we conclude that
Blaisdell’s appeal is without merit.
SDO at 3.
Blaisdell filed his Application on February 7, 2011.
II. STANDARD OF REVIEW
Dismissal Under HRCP Rule 41(b)
The review of a dismissal under HRCP Rule 41(b) is for abuse
of discretion, and absent deliberate delay, contumacious
conduct or actual prejudice[,] an order of dismissal cannot
be affirmed.
Jungblut v. Nishio, No. 29997, 2010 WL 3866029, at *5 (Haw. App.
2010) (internal citations and quotation marks omitted); see also
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Shasteen, Inc. v. Hilton Hawaiian Village Joint Venture, 79
Hawai#i 103, 107, 899 P.2d 386, 390 (1995).
[T]o constitute an abuse of discretion a court must have
clearly exceeded the bounds of reason or disregarded rules
or principles of law or practice to the substantial
detriment of a party litigant.
Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839
P.2d 10, 26-27 (1992).
III. DISCUSSION
A. The ICA Erred When It Affirmed The Circuit Court’s Dismissal
Of Blaisdell’s Complaint With Prejudice.
Blaisdell raises the following argument in his
Application:
2. The fact that the dismissed defendants [that the circuit
court, itself, named] were not served and not properly
before the court, the court had no jurisdiction over any of
the defendants, much less, to dismiss them WITH PREJUDICE,
the case should have just simply been dismissed[.]
Blaisdell appears to argue that because he did not name or serve
any defendants in this matter, it was not possible nor proper for
the circuit court to name, sua sponte, fourteen defendants, and
subsequently enter judgment in their favor, with prejudice. We
agree with Blaisdell’s argument to the extent that his claims for
relief should not have been dismissed with prejudice.
1. The circuit court had authority to dismiss Blaisdell’s
complaint without prejudice.
HRCP Rule 4(b), which governs the requirements of
service, states that the summons shall contain:
(2) . . . the names of the parties . . .
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(3) be directed at the defendant, [and]
. . .
(5) state the time within which these rules require the
defendant to appear and defend, and shall notify the
defendant that in case of defendant’s failure to do so
judgment by default will be rendered against the defendant
for the relief demanded in the complaint[.]
HRCP Rule 4(b)(2)-(5) (2010). HRCP Rule 4(d) further requires
that the summons and complaint be served together. HRCP Rule
4(d) (2010). However, since Blaisdell did not name any
defendants in his complaint, the requirements of HRCP Rule 4
regarding the form of the summons were not met and the requisite
service of process was not completed.
As Blaisdell did not comply with HRCP Rule 4, the
circuit court was authorized by HRCP Rule 41(b)(2) to sua sponte
dismiss the complaint, provided that
[s]uch dismissal may be set aside and the action or claim
reinstated by order of the court for good cause shown upon
motion duly filed not later than 10 days from the date of
the order of dismissal.
HRCP Rule 41(b)(2) (2010). Thus, the circuit court had authority
to dismiss Blaisdell’s complaint, subject to the ten day
reinstatement motion and a finding of good cause. See id.
2. Involuntary dismissals of a complaint with prejudice
are not favored, and should be ordered only in extreme
circumstances, which are not present in this case.
HRCP Rule 41(b), in pertinent part, states that
(2) For failure to prosecute or to comply with these rules
or any order of the court, the court may sua sponte dismiss
an action or any claim with written notice to the parties.
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HRCP Rule 41(b)(2) (2010). The threshold standard for granting
an involuntary dismissal of a complaint with prejudice is set
high: the record must show deliberate delay, contumacious
conduct or actual prejudice. Shasteen, 79 Hawai#i at 107, 899
P.2d at 390. If the record does not show the requisite facts,
an order of dismissal cannot be affirmed under HRCP Rule 41(b).
Id.
In addition, our case law informs us that the sanction
of dismissal of a complaint with prejudice is one of last resort
where lesser sanctions would not serve the interest of justice.
Id. In fact, this court has stated that “an order of dismissal
cannot be affirmed absent deliberate delay, contumacious conduct,
or actual prejudice[.]” Id. (emphasis added); see also Anderson
v. Air West, Inc., 542 F.2d 522, 525 (9th Cir. 1976). Dismissal
of a complaint with prejudice in the absence of these
circumstances constitutes an abuse of discretion. Shasteen, 79
Hawai#i at 107, 899 P.2d at 390.
Federal appellate courts interpreting Rule 41(b) of the
Federal Rules of Civil Procedure, which is substantially similar
to HRCP 41(b)10, are in agreement that the dismissal of a
10
FRCP Rule 41(b) provides that
[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to
dismiss the action or any claim against it.
continue...
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complaint with prejudice is such a severe sanction that it should
seldom be used.11 See Boazman v. Economics Lab., Inc., 537 F.2d
210, 212 (5th Cir. 1976); see also Navarro v. Chief of Police,
Des Moines, Iowa, 523 F.2d 214, 217 (8th Cir. 1975). Because the
interests of justice are best served by resolving a case on its
merits, absent a clear record of delay or contumacious conduct,
“the careful exercise of judicial discretion requires that a
[trial] court consider less severe sanctions and explain, where
not obvious, their inadequacy for promoting the interests of
justice.” Schilling v. Walworth County Park & Planning Comm’n,
805 F.2d 272, 275 (7th Cir. 1986) (emphasis added).
3. The facts of this case do not support dismissal of
Blaisdell’s complaint with prejudice.
Whether a trial court exercised sound discretion in
dismissing a case with prejudice turns on the facts of each case.
Bagalay, 60 Haw. 125, 134, 588 P.2d 416, 422.
a. Deliberate delay and actual prejudice
A dismissal with prejudice would not constitute an
abuse of discretion where a plaintiff’s deliberate delay causes
actual prejudice to a defendant. Anderson, 542 F.2d at 524.
10
...continue
FRCP Rule 41(b) (2007).
11
Where the FRCP are similar to the HRCP, this court may look to
federal case law for guidance. Stallard v. Consolidated Maui, Inc., 103
Hawai#i 468, 475, 83 P.3d 731, 738 (2004).
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Although the law presumes injury from unreasonable delay, the
presumption of prejudice is rebuttable upon a showing that actual
prejudice did not occur. Id.
The ICA in Ellis v. Harland Bartholomew and Assoc.,
upheld a dismissal with prejudice when plaintiff’s unreasonable
delays resulted in harm to the defendants. Ellis, 1 Haw. App.
420, 428, 620 P.2d 744, 749-50 (1980). In that case, a number of
depositions were not taken until ten years after the complaint
was filed due to numerous motions by plaintiff to delay and
postpone trial, and submissions of affidavits reciting his
excuses for unavailability. Id.; see also Hawaii Auto. Retail
Gasoline Dealers Ass’n, Inc. v. Brodie, 2 Haw. App. 99, 101, 626
P.2d 1173, 1175 (1981) (affirming dismissal with prejudice when
two years elapsed from the filing of the complaint until the
matter was set for trial, defendant was not deposed until the eve
of trial, and plaintiff did nothing but engage in the “artful
dodging of diligent prosecution.”).
In Anderson, a dismissal with prejudice was upheld
where a plaintiff filed a complaint immediately before the
running of the statute of limitations, but did not complete
service of process upon all defendants until one year later.
Anderson, 542 F.2d at 524. In that case, the Court of Appeals
for the Ninth Circuit stated that the defendants who were served
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last in time were burdened with actual prejudice because they
were denied the opportunity to adequately prepare for their
defense. Id. at 525.
Here, the record reveals that Blaisdell’s actions bear
no resemblance to the conduct of the parties whose dismissals
with prejudice have been upheld. Instead, the nature of
Blaisdell’s “Emergency Motion” and his request for relief in the
form of a temporary restraining order and/or preliminary
injunction suggests that he acted with some urgency, rather than
unreasonable delay. Moreover, the record indicates that any
delay in this case was not attributable to Blaisdell. On
March 4, 2009, Blaisdell’s appeal was dismissed for lack of
appellate jurisdiction because the circuit court did not enter a
final separate judgment. On March 6, 2009, and again on April 4,
2009, Blaisdell motioned the circuit court to issue a final
separate judgment. When the circuit court did not enter a final
separate judgment, Blaisdell filed a writ of mandamus on
April 20, 2009, requesting that this court order the circuit
court to enter the requisite final separate judgment. It was not
until May 4, 2009, after being ordered to do so by this court,
that the circuit court entered its Judgment. See Blaisdell v.
Sakamoto, No. 29776 (Haw. 2009).
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Assuming arguendo that Blaisdell acted with deliberate
delay, a dismissal could not be upheld without a showing of
actual prejudice to the defendant. See Shasteen, 79 Hawai#i at
109, 899 P.2d at 392. In this case, no defendant was burdened
with prejudice because “Blaisdell did not serve his complaint on
anyone nor did he specifically name any defendants.” SDO at 2.
The circuit court named in its Judgment, sua sponte, fourteen
defendants it assumed Blaisdell’s action was directed at, and
entered judgment in their favor. Because Blaisdell named no
defendants in his complaint, no defendants were burdened with
prejudice, which would otherwise support the justification for
dismissing Blaisdell’s claim for relief with prejudice. See
Bagalay, 60 Haw. at 133, 588 P.2d at 422.
b. Contumacious conduct
In addition to deliberate delay by the plaintiff and
actual prejudice to the defendant, contumacious conduct also
warrants dismissal of an action with prejudice. Shasteen, 79
Hawai#i at 108, 899 P.2d at 391. “Contumacious conduct” has been
defined by this court as “[w]illfully stubborn and disobedient
conduct.” Id. at 107 n.7., 899 P.2d at 391 n.7 (citing Black’s
Law Dictionary 330 (6th ed. 1990)).12
12
The most recent edition of Black’s Law Dictionary narrowly defines
such conduct as “[a] willful disobedience of a court order.” Black’s Law
Dictionary 337 (9th ed. 2009).
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In this case, Blaisdell did not refuse compliance with
a court order, nor was he issued one. Without evidence that
Blaisdell conducted himself in a willfully defiant manner, his
actions did not amount to what this court considers “contumacious
conduct.”
In summary, the record does not indicate: (1) a
deliberate attempt by Blaisdell to delay the prosecution of this
case; (2) that the “defendants” suffered actual prejudice; or (3)
that Blaisdell’s actions rose to the level of contumacious
conduct. Absent these circumstances, the circuit court should
have considered and explained why a lesser sanction, such as a
dismissal without prejudice, was insufficient to serve the
interests of justice. See Schilling, 805 F.2d at 275. Here, the
circuit court did not provide any such explanation. Furthermore,
a dismissal with prejudice is inconsistent with this court’s
“policy of affording litigants the opportunity to have their
cases heard on the merits, where possible[.]” Housing Fin. &
Dev. Corp. v. Ferguson, 91 Hawai#i 81, 85-86, 979 P.2d 1107,
1111-12 (1999) (quoting Bettencourt v. Bettencourt, 80 Hawai#i
225, 230, 909 P.2d 553, 558 (1995)).
Based on the foregoing, the circuit court abused its
discretion when it dismissed Blaisdell’s complaint with
prejudice.
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IV. CONCLUSION
The ICA erred in summarily affirming the circuit
court’s dismissal, with prejudice, of Blaisdell’s complaint. We
vacate the Judgment and remand this case to the circuit court for
proceedings before a different judge, see State v. Carvalho, 90
Hawai#i 280, 288 n.8, 978 P.2d 718, 726 n.8 (1999) (“It should be
noted that we are remanding for resentencing by a different judge
because, inasmuch as [the circuit court judge] previously
determined the appropriate length of sentence, remanding the
matter to [the circuit court judge] would constitute an
inadequate remedy.”) (citations omitted), with instructions to
dismiss Blaisdell’s complaint without prejudice.
Richard Blaisdell, /s/ Mark E. Recktenwald
petitioner/plaintiff-
appellant pro se /s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ James E. Duffy, Jr.
/s/ Sabrina S. McKenna
16