IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT

STATE OF HAWAII

JOSEPH A. BRESCIA,

Plaintiff,vs.

KA`IULANI EDENS-HUFF; et al.,

Defendants._____________________________________

JEFF CHANDLER,

Third-Party Plaintiff,vs.

JOSEPH A. BRESCIA; PUA AIU, et al.,

Third-Party Defendants.

)))))))))))))))))))

Civil No. 08-1-0107(Other Civil Action)

DEFENDANT RALPH PALIKAPU DEDMAN’S REPLY TO PLAINTIFF JOSEPH A. BRESCIA’S MEMORANDUM IN SUPPORT OPPOSITION TOOF DEFENDANT PALIKAPU DEDMAN’S MOTION TO SET ASIDE DEFAULT, ENTERED ON FEBRUARY 11, 2009MOTION

DEFENDANT RALPH PALIKAPU DEDMAN’S REPLY TO PLAINTIFF JOSEPH A. BRESCIA’S MEMORANDUM IN OPPOSITION TO DEFENDANT PALIKAPU

DEDMAN’S MOTION TO SET ASIDE DEFAULT, ENTERED ON FEBRUARY 11, 2009MEMORANDUM IN SUPPORT OF MOTION

I. INTRODUCTION

Plaintiff filed his Memorandum In Opposition To Defendant Palikapu Dedman’s Motion

To Set Aside Default, Entered On February 11, 2009 untimely. As demonstrated infra, good

cause exists for this Court to set aside the Default entered by the Clerk on October 23, 2008, and

permit Dedman to answer Plaintiff’s First Amended Complaint because good cause exists to do

so. In this case, Wwhere the Plaintiff will not suffer prejudice by the reopening and where a

substantialsetting aside the entry of default against Defendant RALPH PALIKAPU DEDMAN,

the latter has a meritorious defense against a claim for damages, and DEDMAN was

understandably in error in interpreting his obligations when served, this Court should set aside

the default entered. Given (1) the unfounded basis for any claim against DEDMAN, who was

not even present on Kaua`i during the relevant time period covered by the complaint, amount of

money is at stake (2) the heightened public interest at stake in light of the failure to properly

consult with appropriate Hawaiian organizations, and (3) the improper identification of Doe

Defendants engineered by Plaintiff’s attorney to implicate DEDMAN as a participant in the June

events giving rise to the filing of the complaint, (4) the outlandish amount of money damages

claimed (over $300,000), it is in the interests of justice to allow Dedman to answer and defend

against the claims asserted by Plaintiff, who was improperly identified as a Doe Defendant

because he was not a party to the activities that constitute the majority of the damages claims

reaching over three hundred thousand dollars, to properly answer the Plaintiff’s Complaint and

defend himself on the merits of this case.

II. FACTS IN SUPPORT OF MOTION

On June 12, 2008, Plaintiff Joseph A. Brescia filed this action for an injunction for

trespass and other relief against Defendant Ka`iulani Edens-Huff, five other defendants, and Doe

Defendants, for allegedly interfering on June 3, 2008 with the construction of his residence in

Wainiha, Kaua`i.

On August 21, 2008, Plaintiff moved to identify Doe Defendants 1-11, including

Defendant Dedman, for allegedly interfering with construction during a protest that took place on

August 7, 2008 on the Plaintiff’s property, even though Mr. Dedman was not present at the June

3, 2008 protest and the actions alleged against him do not fall within the four corners of

Plaintiff’s First Amended Verified Complaint. See Declaration of Phil Leas at 2, ¶13-15

attached to Plaintiff Joseph A. Brescia’s Ex Parte Motion to Identify Hanalei Colleado, Andrew

Cabebe, Jim Huff, Hank Fergerstrom, Ehu Cardwell, Palikapu Dedman, Skippy Ioane, Hanaloa

Helela, and Palani Ka`auwae as Doe Defendants 1-11 (“Motion to Identify”); see also, Plaintiff

Joseph Brescia’s First Amended Verified Complaint, filed June 12, 2008.

On September 7, 2008, a police officer in Hilo served Dedman with papers claiming he

had violated the law during the August 7, 2008 protest at the Brescia Property. Declaration of

Dedman. When he was served these papers, he mistook the papers served upon him for the

criminal proceedings which were prominently on his mind during this period. Declaration of

Dedman.

On October 23, 2003, the Court entered a default against Dedman for failure to answer

Plaintiff’s Complaint. On or about April 28, 2009, Dedman received a copy of Plaintiff’s

Memorandum in Opposition to Defendant Cabebe’s Motion to Set Aside Default, filed on April

13, 2009. Dedman called the Native Hawaiian Legal Corporation (“NHLC”) for assistance the

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next day to find out why he received the pleading. Declaration of Dedman. Counsel for

Dedman attended a hearing on the case the next day on May 1, 2009. Declaration of Kalama.

Prior to and after the hearing, counsel discussed the matter of Dedman’s default with Plaintiff’s

counsel, notifying Plaintiff’s counsel that Dedman had just contacted NHLC the day before and

inquiring whether Plaintiff was willing to stipulate to set aside the entry of default. Id.

Plaintiff’s counsel responded that his client would not be willing to stipulate to set aside the

default on the basis of service, but that he was open to stipulating on the basis of excusable

neglect. Id. On May 6, 2009, counsel for Dedman spoke with Plaintiff’s counsel and discussed

the matter again, after which Plaintiff’s counsel provided a copy of the return of service and a

confirmation of his client’s position that he would consider stipulating to set aside the default on

the basis of excusable neglect. Id. On June 22, 2009, a copy of Dedman’s declaration was

delivered to Plaintiff’s counsel. Id.

On July 8, 2009, Dedman’s counsel wrote Plaintiff’s counsel regarding Plaintiff’s

willingness to stipulate to set aside the entry of default against Dedman. Id. To date, Plaintiff

has not responded to the request.

III. STANDARD FOR SETTING ASIDE DEFAULT

Hawaii Rule of Civil Procedure 55(c) provides that a default may be set aside for “good

cause shown.”

“Defaults . . . are not favored and that any doubt should be resolved in favor of the party

seeking relief, so that, in the interests of justice, there can be a full trial on the merits.” BDM,

Inc. v. Sageco, Inc., 57 Haw. 73, 76; 549 P.2d 1147, 1150 (Haw. 1976). “Defaults are especially

disfavored in certain actions. One general class of cases of this type consists of actions involving

material issues of fact. Another type is litigation in which substantial amounts of money are

involved.” Wright and Miller, Federal Practice and Procedure, Civ. § 2681 at 10-11 (1998).

Thus, a motion to set aside a default entry may and should be granted whenever the court

finds that: (1) the nondefaulting party will not be prejudiced by the reopening; (2) the defaulting

party has a meritorious defense; and (3) the default was not the result of inexcusable neglect or a

willful act. Id., 57 Haw. at 77, 549 P.2d at 1150.

Rule 55(c) is identical to its counterpart in the Federal Rules of Civil Procedure (FRCP).

Accordingly, in interpreting HRCP Rule 55(c), Hawai`i’s trial and appellate court routinely rely

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directly upon the holdings and interpretations used by the federal courts in their decisions dealing

with FRCP Rule 55(c) and such interpretations of the FRCP are persuasive.

IV. ARGUMENT

Defendant Dedman respectfully requests an order setting aside the entry of default on the

grounds that he can show good cause to set aside the entry of default and because he can meet

these standards: (1) Plaintiff Brescia will not be prejudiced by the reopening; (2) Defendant

Dedman has a meritorious defense; and (3) the default was not the result of inexcusable neglect

or a willful act. BDM, 57 Haw. at 77, 549 P.2d at 1150

The court has discretion to determine whether good cause has been shown. See Madsen

v. Bumb, 419 F.2d 4, 6 (9th Cir. 1969). According to the Hawai`i Supreme Court in BDM, 57

Haw. at 76-77, 549 P.2d at 1150, “It should be noted that a motion to set aside a default entry,

which may be granted under Rule 55(c) ‘for good cause shown’, gives the court greater freedom

in granting relief than is available on a motion to set aside a default judgment where the

requirements of Rule 60(b) must be satisfied.” Id. at 76-77, 549 P.2d at 1150 (1976) (citing 10

Wright and Miller, Federal Practice and Procedure, Civ. § 2693 at 313 (1973).

A. Plaintiff Will Not be Prejudiced by Reopening Dedman’s Case

The single most persuasive reason for denying a Rule 55(c) motion is the existence of

prejudice to the nondefaulting party caused by the reopening of the action. See, Wright, Miller

& Kane Federal Practice and Procedure Civil 3d § 2699 (1998). See, also, Lambert v. Lua, 92

Haw. 228; 990 P.2d 126 (Haw. App.1999).

In most instances, the finding of substantial prejudice in a Rule 55(c) motion occurs when

the non-defaulting party fails to show that its interests cannot be protected by the court’s lifting

of the Default. See Wright, Miller & Kane Federal Practice and Procedure Civil 3d § 2700

(1998). For example, the fact that a claimant has to try the case on the merits if the Default is

lifted is insufficient to preclude relief. See BDM, Inc., 57 Haw. at 77; 549 P.2d at 1150.

Similarly, the fact that reopening litigation would delay claimant’s possible recovery or remedy,

by itself is not to bar a relief from a default. See Lambert 92 Haw. at 235; 990 P.2d at 133.

Plaintiff cannot claim that he will be prejudiced by the reopening of the action. The only

apparent prejudice that Plaintiff can possibly demonstrate if the Court reopens his claims to

litigation is the delay itself, and that he will have to prove his case. This type of prejudice, alone,

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is insufficient to warrant the denial of setting aside an entry of Default. See BDM, Inc., 57 Haw.

at 77; 549 P.2d at 1150; Lambert 92 Haw. at 235; 990 P.2d at 133.

In this case, there is an ongoing action against three other defendants, Jeff Chandler,

Puanani Rogers, and Louise Sausen, aka Louise Listman, and potentially others who have not yet

been served with Plaintiff’s First Amended Verified Complaint. Moreover, discovery is ongoing

and trial is not scheduled until October 2010. As such, the Plaintiff will not suffer prejudice if

this Court sets aside Dedman’s entry of default.

B. Dedman’s Defenses to Plaintiff’s Claims are Meritorious

All that is required of a defendant seeking to vacate a default judgment is the presentation

of “specific facts that would constitute a defense.” TCI Group Life Insurance Plan v. Knoebber,

244 F.3d 691, 700 (9th Cir. 2001) (citations omitted). The burden is not extraordinarily heavy and

only requires the allegation of facts or law sufficient to raise a defense such that litigation would

not be a wholly empty exercise. See Madsen v. Bumb, 419 F.2d 4, 7 (9th Cir. 1969).

Furthermore, where only a default has been entered, the showing required to meet this element is

even lighter.

Although there is a general judicial policy favoring the finality of judgments,1 that

perspective must be counterbalanced with the recognition that “a judgment or final order should

reflect the true merits of the case.” Matsuura v. E.I. du Pont de Nemours & Co., 102 Haw. 149,

157, 73 P.3d 687, 695 Haw (2003), citing Magoon v. Magoon, 70 Haw. 605, 616, 780 P.2d 80,

86 (1989). In Magoon, a party alleged that the final order was procured through fraud and sought

relief from a final property division. Interpreting Hawaii Family Court Rules (HFCR) Rule 60(a)

and (b), the Hawai`i Supreme Court held that the family court had jurisdiction to entertain the

motion for relief from the final order. Magoon, 70 Haw. at 616, 780 P.2d at 86 (citations

omitted). While it recognized that HFCR was not applicable to other civil proceedings, the court

observed that its analogues, Rule 60(b)(3) of the Federal Rules of Civil Procedure and Rule 60(b)

(3) of the Hawaii Rules of Civil Procedure, codifies a well-recognized exception to the finality

principle that would "permit relief in several of the situations in which the desire for truth is

deemed to outweigh the value of finality." Matsuura, 102 Haw. at 157, 73 P.3d at 695, citing

Magoon, 70 Haw. at 616 n.4, 780 P.2d 86 n.4 (citations and brackets omitted). Thus, HRCP Rule

1 See, Shimabuku v. Montgomery Elevator Co., 79 Hawaii 352, 358, 903 P.2d 48, 54 (1995).

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60(b)(3) reflects a preference for judgments on the merits over the finality of judgments procured

through fraud.2 Matsuura, 102 Haw. at 158, 73 P.3d at 696.

In this case, Dedman’s defenses to Plaintiff’s claims are meritorious as evidenced by his

attached declaration and the Proposed Answer to Plaintiff’s First Amended Verified Complaint,

attached hereto as Exhibit “A”. There has only been an entry of default against Mr. DEDMAN

by the clerk of the court. Moreover, evidence of Dedman’s defenses will be for the most part in

the negative and based on his own testimony. Dedman was nowhere on Brescia’s Property or

even on the island of Kaua`i in June 2008 and did not participate in a number of activities

complained of in the Complaint. See Declaration of Ralph Palikapu Dedman, ¶ 3, attached.

Dedman also asserts that any action he did take in August 2008 was taken out of a sincere belief

that such actions were necessary to protect the iwi kupuna on the property. Id. Therefore, in

addition to a number of standard affirmative defenses, Dedman will also assert that his actions

are protected by the defense of necessity, defense of public trust property, and were

constitutionally and statutorily protected as traditional and customary rights. Exhibit A. Based

on Dedman’s declaration and proposed answer, he has alleged facts sufficient to raise a number

of legitimate and meritorious defenses to Plaintiff’s claims against him.

C. Under the circumstances, this Court should recognize DEDMAN’s excusable neglect and set aside the default against him.

2 As the Hawai`i Supreme Court further explained:

Additionally, HRCP Rule 60(b) states, "This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court." The Federal Rules of Civil Procedure (FRCP) contain a similar provision, which courts have interpreted to remove any fixed time limit to directly attack a judgment based on fraud upon the court. Rozier v. Ford Motor Co., 573 F.2d 1332, 1337-38 (5th Cir.), reh'g denied, 578 F.2d 871 (1978); Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 701-02 (2d Cir.), cert. denied, 409 U.S. 883 (1972); Wilkin v. Sunbeam Corp., 405 F.2d 165, 166 (10th Cir. 1968); Dausuel v. Dausuel, 90 U.S. App. D.C. 275, 195 F.2d 774, 775 (D.C. Cir. 1952). Based upon the persuasive authority of federal interpretations of the FRCP, this court has indicated that the one-year limitation in HRCP Rule 60(b) is not applicable when fraud was committed upon the court. In re Genesys, 95 Hawaii 33, 37 n.4, 18 P.3d 895, 899 n.4 (2001); but see Hayashi v. Hayashi, 4 Haw. App. 286, 292, 666 P.2d 171, 175-76 (1983) (noting that there is no relief in equity when the movant "had an adequate remedy at law or could have opened, vacated, modified the decree or judgment, or obtained relief in the original action by exercising proper diligence, or where the situation from which relief is sought has been caused by movant's own fault, neglect, inadvertence or carelessness"). Thus, the relief available under HRCP Rules 60(b) and 60(b)(3) reflect the preference for judgments on the merits over the finality of judgments, especially when such judgments are procured through fraud. Accordingly, when there is an allegation of fraud, the policy of reinforcing the finality of judgments does not favor limiting liability in a subsequent proceeding.

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Plaintiff’s opposition to this Court finding that DEDMAN was responsible for only

excusable neglect is founded on a misreading of the applicable case law. Citing to Pogia v.

Ramos, 10 Haw. App. 411, 416, 876 P.2d 1342, 1345 (Haw. App. 1994), Hupp v. Accessory

Distrib. 1 Haw App. 174, 179; 616 P.2d 233, 236 (Haw. App. 1980), Plaintiff argues that the

failure to timely answer a complaint is per se inexcusable neglect. Brescia Memorandum 5.

Taken to its unqualified extreme, under this theory, there is no utility in moving to set aside the

entry of default once a defendant fails to answer a complaint, under any circumstances. That

exaggeration is clearly unwarranted and unfounded, since relief under Rule 55(c) is justifiable

under certain instances. Citicorp Mortgage, Inc. v. Bartolome, 94 Hawai`i 422, 439 (App. 2000).

In truth, a court can find reasonable justification for failing to answer or otherwise respond to a

complaint in a HRCP Rule 55(c) motion, based upon all the facts and circumstances of the

individual case. See BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 76; 549 P.2d 1147, 1150.

In Huff, the Court focused on the unexplained failure of a manufacturer to answer the

complaint for NINE MONTHS after contacting Plaintiff’s attorney to conclude there was no

abuse of discretion in the trial court’s conclusion that there was inexcusable neglect. 1 Haw App.

174, 179; 616 P.2d 233, 236. It dismissed the proffered explanation that there was an agreement

amongst counsel for an “open” extension of time to answer. Id. In Pogia, the Court refused to

find an abuse of discretion by the trial court, which entered default NINE MONTHS after service

of the complaint.

In contrast, in this instance, Plaintiff applied for and obtained an entry of default against

Defendant DEDMAN within 46 days of service of the complaint against him. Unlike the long

delays in the cited cases prior to the entry of default, he had precious few days to do anything

about responding to the complaint had he fully understood his obligations. Once the default was

entered, any actions heDEDMAN could have or should have taken were irrelevant, because the

default already applied against him. He could not answer the complaint as of October 23, 2008,

so any argument that he waited to act for nine months is specious. The main point is that unlike

the plaintiffs in Hupp and Pogia, BRESCIA acted in a relatively rushed fashion to capitalize on

DEDMAN’s failure to timely answer, leaving him none of the allowances for time that the

Defendants in Pogia and Hupp exploited.

A motion to set aside a default entry, which may be granted under Rule 55(c) "for good

cause shown", gives the court greater freedom in granting relief than is available on a motion to

set aside a default judgment where the requirements of Rule 60(b) must be satisfied. BDM, Inc.

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v. Sageco, Inc., 57 Haw. at 77 (Haw. 1976), citing 10 Wright and Miller, Federal Practice and

Procedure, Civ. § 2693 at 313 (1973) (agreeing with the reasoning of those decisions which hold

that defaults and default judgments are not favored and that any doubt should be resolved in

favor of the party seeking relief, so that, in the interests of justice, there can be a full trial on the

merits). While the elements advanced in support of a motion under Rule 55(c) will be the same

whether relief is sought from a default entry or from a default judgment, this court nevertheless

has greater leeway to grant relief under Rule 55(c). Wright and Miller, supra, Civ. § 2692 at 301.

In contrast, Brescia relies on Dillingham Inv. Corp. v. Kunio Yokoyama Trust, 8 Haw.

App. 226, 236; 797 P.2d 1316, 1318 (Haw. Ct. App. 1990) to argue that a misreading of the

complaint should not constitute excusable neglect. However, in that instance, the appellant

asked to set aside a default judgment under HRCP Rule 60(b)(6), and is not as strictly applicable

to a Rule 55(c) motion for relief. Moreover, unlike in this instance, there was no parallel criminal

proceeding with which the appellants seeking relief could have confused the complaint served

upon them. Furthermore, there were no circumstances in Dillingham, as there is in this instance,

where co-defendants have already answered and proceededing with discovery, negating any real

prejudice against Plaintiff Brescia. Given the pretrial and discovery activities in which

Defendants/Third Party Plaintiffs JEFFREY CHANDLER AND PUANANI ROGERS have

engaged, BRESCIAHe would have to undergo the same burdens of litigation with or without the

involvement of DEDMAN as a party., Moreover, since BRESCIA is seeking joint liability from

all defendants, much of the issues facing DEDMAN overlap with those facing CHANDLER and

ROGERS.

Furthermore, Brescia ignores the BDM rationale disfavoring defaults and default

judgments 57 Haw. at 77. In this instance, this Court has already concluded that the State

Historic Preservation Division failed to properly consult with affected Hawaiians on the

appropriate burial treatment measures to implement the KNIBC determination to preserve all

burials in place. That likely violation of HRS § 6E-43(d) was a heavy factor in motivating

affected Hawaiians independently of each other to participate in protests against the resulting

house construction which had failed to undergo the prescribed process. These critical

surrounding circumstances are absent from the authorities cited by BRESCIA and fully

distinguish those factual contexts from the instant one.

complaint (1) described the 74.061-acre property in which Plaintiffs alleged ownership

and possession; (2) [**14] alleged that Appellants were claimants of the property because of

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their claimed interest in the three TMK parcels; and (3) prayed for a determination that Plaintiffs

had title to the property, free and clear of all claims, liens, and encumbrances.

In order to establish excusable neglect in a motion to set aside an entry of default under

HRCP Rule 55(c), a defaulted party who failed to answer a complaint must make a showing of

why the party was justified in failing to respond to the complaint or to obtain an extension of

time to respond. Lambert v. Lua, 92 Haw. 228, 236; 990 P.2d 126, 134 (Haw. App.1999); Pogia

v. Ramos, 10 Haw. App. 411, 416, 876 P.2d 1342, 1345 (Haw. App. 1994); Dillingham Inv.

Corp. v. Kunio Yokoyama Trust, 8 Haw. App. 226, 236; 797 P.2d 1316, 1318 (Haw. App. 1990);

Hupp v. Accessory Distrib. 1 Haw App. 174, 179; 616 P.2d 233, 236 (Haw. App. 1980). The

court’s finding of a reasonable justification for failing to answer or otherwise respond to a

complaint in a HRCP Rule 55(c) motion is based upon all the facts and circumstances of the

individual case. See BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 76; 549 P.2d 1147, 1150.

In this case, Dedman was legitimately confused by Plaintiff’s Complaint, the Motion to

Identify Doe Defendants, and his concurrent criminal proceedings. The Complaint on its face

alleges the following:

6. DOE DEFENDANTS 1-200 are persons or entities, whose identity is so far unknown, despite reasonable efforts to identify them from photographs, and who haveparticipated and engaged in the conduct complained of and who will be specificallyidentified in the course of discovery and other further proceedings in this case.

First Amended Verified Complaint at 3. (Emphasis added).

63. On the morning of June 3, 2008, the Defendants unlawfully entered andremained on the Property, while continuing to demonstrate against the Contractoremployed by the Plaintiff.

64. The demonstration of the Defendants included intimidation and threats,aimed at disrupting the blessing and preventing the Contractor from pursuing any work on the Property.

65. As a result of the Defendants' actions on June 3, 2008, the plannedblessing could not take place, the Contractor and the Contractor's crew werethreatened, intimidated, and otherwise prevented from proceeding with the blessing and commencement of work on the Property as planned, and the police were called and responded.

66. Plaintiff is informed and believes, and states upon such information and

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belief, that the Defendants will continue to trespass, intimidate, threaten, harass, and take any and all other actions to improperly and illegally halt or interfere with any work by the Contractor on the Property, unless Defendants are restrained or enjoined.

Id. at 13 and 14.

Dedman did not participate or engage in the conduct complained of and is not included in

the group of Defendants named specifically or as Doe Defendants in the Complaint. Nor is he

swept into the Defendant group by the allegation that, “Defendants repeatedly trespassed upon

the Plaintiff’s property, and the repeated trespasses are likely to continue occurring unless the

Defendants and anyone acting under their direction and control are enjoined.” Id., ¶ 71 at 15.

Dedman is not an agent of any of the Defendants, nor has Plaintiff alleged or presented any

credible evidence that he is an agent of any of the Defendants. In any case, it does not save him

from the specific allegation made against Doe Defendants.

Although the standards for notice pleading as compared to fact pleading are more

relaxed, the trend in the federal system is moving towards requiring more specific allegations,

Notably, in the recent controversial decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544;

127 S. Ct. 1955 (2007), the Supreme Court stated that

Federal Rule of Civil Procedure Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the…claim is and the grounds upon which it rests,” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.; Sanjuan v. American Bd. Of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (CA7 1994), a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions[.]

The Court noted that, despite the language in Conley,

…Rule 8(a)(2) still requires a “showing,” rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only “fair notice” of the nature of the claim, but also “ground” on which the claim rests. See Wright & Miller § 1202, at 94, 95 (Rule 8(a) “contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented” and does not authorize a pleader’s “bare averment that he wants relief and is entitled to it.”)

Bell Atlantic Corp., 550 U.S. at 555, 127 S. Ct. at 1965. Here, Plaintiff listed the occurrences for

which he was entitled to relief against the Defendants, named or unknown at the time, but such

occurrences do not involve Dedman and cannot apply to him.

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When Dedman did receive a copy of the Complaint and the Motion to Identify Doe

Defendants, he was in the midst of dealing with criminal trespassing charges related to a protest

that occurred on August 7, 2008. Declaration of Palikapu Dedman, ¶ 11. As previously

discussed, he was never on Kaua`i during the only relevant and critical period covered by the

Plaintiff’s Complaint, i.e., June 2008. Id., ¶ 3. In contrast, he only participated in non-violent

protests against the construction of the Brescia house in August, which was covered by press

accounts of that time period. Id., ¶¶ 4, 8. In fact, he was arrested as part of that demonstration

and had to face criminal prosecution on which his attention was primarily focused at the time.

Id., ¶¶ 7, 10. When he received the paperwork from the police officer, he mistakenly believed it

was related to the ongoing criminal proceedings against him. Id., ¶ 12. In January 2008, he was

informed that the charges had been dropped and believed that, at that point, his involvement in

any court proceeding was finished. Id., ¶ 13. When Dedman received notice of a hearing in April

in this case, he immediately inquired with his attorneys and sought to become involved in the

case. Id., ¶ 15.

Unlike the defendants in Citicorp Mortgage, Inc. v. Bartolome, 94 Hawai`i 422, 439

(App. 2000) and in Pogia, 10 Haw. App. at 416, Dedman is not simply claiming that he had a

lack of legal knowledge or training or that confusion over some other unrelated matter prevented

him from answering the complaint. Rather, Dedman confusion stems from a separate criminal

proceeding regarding the same August 7, 2008 protest. Dedman should be excused for such

confusion because Plaintiff failed to properly include the alleged August 8, 2008 protest in his

Complaint for relief, as outline in the pending Rule 11 Motion, and because of the omission, and

his confusion over the related paperwork and his criminal proceeding. See Defendant Palikapu

Dedman’s Motion to Declare Philip J. Leas in Violation of Rule 11, HRCP and for Corrective

Action filed on or about July 15, 2009.

V. CONCLUSION

Dedman has demonstrated good cause for this Court to set aside the Default entered by

the Clerk, and permit Dedman to answer Plaintiff’s Complaint. Plaintiff will not suffer any

prejudice by the reopening of the Complaint. In addition, Dedman has shown a meritorious

defense to all of the counts contained in Plaintiff’s Complaint. Finally, Plaintiff will suffer no

prejudice by reopening the case. In this case, where Dedman’s defenses raise material issues of

fact and where a substantially large amount of money is involved, any doubt in this matter

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should be resolved in favor of Dedman. This is especially true here, where Plaintiff’s counsel

has irresponsibly and improperly asserted a false premise on which this Court improvidently

relied to identify DEDMAN as a defendant in the first place. In the interests of justice, Dedman

requests that this Court set aside the entry of default against him and either vacate the order

identifying him as a Doe Defendant, or grant him the opportunity to answer the complaint and

afford him a full trial on the merits should Plaintiff’s claims against him not be dismissed.

DATE: Honolulu, Hawaii, July 23, 2009.

_______________________________ALAN T. MURAKAMICAMILLE K. KALAMAAttorneys for Jeffery Chandler, Puanani Rogers, Andrew Cabebe and Palikapu Dedman

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