Jones v. Hawaii Residency Program, Inc. et al

Filing 111

ORDER DENYING PLAINTIFF'S FILING ENTITLED "MOTION TO SET ASIDE JUDGMENT OF THE HAWAII RESIDENCY PROGRAMS, INCORPORATED, ET AL." (ECF NO. 103 ) - Signed by JUDGE HELEN GILLMOR on 7/12/2017. "Plaintiff's Filing enti tled, "MOTION TO SET ASIDE JUDGMENT OF THE HAWAII RESIDENCY PROGRAMS, INCORPORATED, ET AL." (ECF No. 103) is DENIED. The Clerk of Court is DIRECTED TO CLOSE THE CASE." (emt, )CERTIFICAT E OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Lillian M. Jones served by first class mail to the address of record on July 12, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
)
vs.
)
)
HAWAII RESIDENCY PROGRAMS,
)
INC., UNIVERSITY OF HAWAII;
)
NALEEN ANDRADE, M.D.; COURTENAY )
MATSU, M.D.; CHRISTIAN DERAUF, )
M.D.; TERRY LEE, M.D.; IQBAL
)
AHMED, M.D.; SHEILA SCHIEL,
)
)
)
Defendants.
)
)
LILLIAN M. JONES,

Civ. No. 07-00015 HG-KSC

ORDER DENYING PLAINTIFF’S FILING ENTITLED “MOTION TO SET ASIDE
JUDGMENT OF THE HAWAII RESIDENCY PROGRAMS, INCORPORATED, ET AL.”
(ECF No. 103)
Plaintiff Lillian M. Jones, proceeding pro se, filed a
Motion to Set Aside Judgment.

Plaintiff seeks to vacate the

Judgment entered by this Court on November 30, 2007.
Plaintiff filed her Motion pursuant to Fed. R. Civ. P.
60(b).

Plaintiff’s Motion is untimely.

There is no factual or

legal basis upon which to set aside the 2007 Judgment.

There are

no extraordinary circumstances that would merit relief as
requested.
Plaintiff’s MOTION TO SET ASIDE JUDGMENT OF THE HAWAII
RESIDENCY PROGRAMS, INCORPORATED, ET AL. (ECF No. 103) is DENIED.

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PROCEDURAL HISTORY
On January 12, 2007, Plaintiff filed a Complaint.

(ECF No.

1).
On June 8, 2007, Plaintiff filed an Amended Complaint.

(ECF

No. 40).
On November 29, 2007, the Court issued an ORDER GRANTING
DEFENDANT UNIVERSITY OF HAWAII’S MOTION TO DISMISS PLAINTIFF’S
AMENDED COMPLAINT.

(ECF No. 83).

On November 30, 2007, the Court issued an ORDER GRANTING
DEFENDANTS HAWAII RESIDENCY PROGRAM INC., NALEEN ANDRADE, M.D.,
COURTENAY MATSU, M.D., AND D. CHRISTIAN DERAUF, M.D.’S MOTIONS
FOR SUMMARY JUDGMENT.

(ECF No. 84).

On the same date, the Court entered Judgment in favor of the
Defendants.

(ECF No. 85).

More than nine years later, on April 3, 2017, Plaintiff
filed PLAINTIFF’S MOTION TO SET ASIDE JUDGMENT OF THE HAWAII
RESIDENCY PROGRAMS, INCORPORATED, ET AL.

(ECF No. 103).

On May 12, 2017, Defendant Hawaii Residency Programs, Inc.
filed DEFENDANT HAWAII RESIDENCY PROGRAMS, INC.’S OPPOSITION TO
PLAINTIFF’S MOTION TO SET ASIDE JUDGMENT OF THE HAWAII RESIDENCY
PROGRAMS INCORPORATED.

(ECF No. 107).

On May 15, 2017, Defendant Hawaii Residency Programs, Inc.
filed an ERRATA.

(ECF No. 108).

On June 5, 2017, Plaintiff filed PLAINTIFF’S REPLY TO
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DEFENDANT HAWAII RESIDENCY PROGRAMS, INC.’S OPPOSITION TO
PLAINTIFF’S MOTION TO SET ASIDE JUDGMENT OF THE HAWAII RESIDENCY
PROGRAMS INCORPORATED.

(ECF No. 109).

The matter is being decided without a hearing pursuant to
District of Hawaii Local Rule 7.2(d).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 60(b) permits relief from
final judgments, orders, or proceedings.
separate bases for relief.

Rule 60(b) provides six

The rule provides, as follows:

On motion and just terms, the court may relieve a party
or its legal representative from a final judgment,
order, or proceeding for the following reasons:
(1)

mistake, inadvertence, surprise, or excusable
neglect;

(2)

newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);

(3)

fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct
by an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released or
discharged; it is based on an earlier
judgment that has been reversed or vacated;
or applying it prospectively is no longer
equitable; or

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

3

A successful motion for reconsideration must accomplish two
goals.

First, a motion for reconsideration must demonstrate some

reason why the Court should reconsider its prior decision.
Second, the motion must set forth facts or law of a “strongly
convincing” nature to induce the Court to reverse its prior
decision.

Jacob v. United States, 128 F.Supp.2d 638, 641 (D.

Haw. 2000).
Mere disagreement with a court’s analysis is not a
sufficient basis for relief pursuant to Fed. R. Civ. P. 60(b).
Sierra Club v. City and Cnty. of Honolulu, 486 F.Supp.2d 1185,
1188 (D. Haw. 2007) (citing Haw. Stevedores, Inc. v. HT & T Co.,
363 F.Supp.2d 1253, 1269 (D. Haw. 2005)).
The decision to grant relief pursuant to Rule 60(b) is
committed to the sound discretion of the court.

Navajo Nation v.

Confederated Tribes and Bands of the Yakama Indian Nation, 331
F.3d 1041, 1046 (9th Cir. 2003).
ANALYSIS
I.

Consideration for Pro Se Litigants

The Court recognizes that Plaintiff is proceeding pro se.
Pro se pleadings are construed liberally.

Ballisteri v. Pacific

Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
Pro se litigants are not, however, excused from complying
with the Federal Rules of Civil Procedure and the Local Rules for

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the District Court for the District of Hawaii.

Am. Ass’n of

Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th
Cir. 2000).

Pro se litigants must comply with the same rules of

procedure that govern other litigants.

Motoyama v. Haw. Dep’t of

Transp., 864 F.Supp.2d 965, 975 (D. Haw. 2012).
Only Defendant Hawaii Residency Programs, Inc. has been
served with the Motion to Set Aside Judgment.

(Pla.’s

Certificate of Service attached to her Motion, ECF No. 103-9).
Defendant Hawaii Residency Programs, Inc. argues that service was
defective, but it waived the deficiency of service for purposes
of the Motion.

(Def.’s Opp. at p. 5, ECF No. 107).

There is no evidence that any other Defendant was served.
Hawaii Residency Programs, Inc. is the only Defendant subject to
the Motion.
II.

The Rule 60(b)(3) Motion Is Untimely

This matter concerns a Judgment entered in favor of
Defendant Hawaii Residency Programs, Inc. on November 30, 2007.
(ECF No. 85).

Plaintiff had filed an Amended Complaint alleging

federal constitutional claims and state law claims against the
Defendant Hawaii Residency Programs, Inc., and other defendants.
Plaintiff objected to her dismissal from the Defendant’s medical
residency program.

(ECF No. 40).

On November 30, 2007, the Court issued an Order that granted

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summary judgment in favor of Defendant Hawaii Residency Programs,
Inc.

(Nov. 30, 2007 Order Granting Summary Judgment, ECF No.

84).

The Court ruled that Defendant Hawaii Residency Programs,

Inc. was entitled to summary judgment because Plaintiff was
unable to bring federal constitutional claims against it pursuant
to 42 U.S.C. § 1983.

(Id. at p. 13).

The Court found that

Defendant Hawaii Residency Programs, Inc. was not a state actor.
(Id.)

The Court declined supplemental jurisdiction and dismissed

Plaintiff’s state law claims without prejudice.

(Id. at pp. 16-

17).
On April 3, 2017, Plaintiff filed the current Motion.

The

Motion seeks to vacate the Judgment based on “fraud” pursuant to
Fed. R. Civ. P. 60(b)(3).

(Pla.’s Motion at pp. 1-3, ECF No.

103).
A motion filed pursuant to Rule 60(b)(3), for fraud upon the
Court, must be made no later than one year following entry of the
challenged judgment.

Fed. R. Civ. P. 60(c)(1); Krakauer v.

Indymac Mortg. Srvs., Civ. No. 09-00518ACK-BMK, 2013 WL 1181289,
*3 (D. Haw. Mar. 19, 2013).
Judgment was entered on November 20, 2007.

(ECF No. 85).

The Motion was filed more than nine years later, on April 3,
2017.

(ECF No. 103).

The Motion filed pursuant to Fed. R. Civ.

P. 60(b)(3) is untimely.

Fed. R. Civ. P. 60(c)(1); Hollis-

Arrington v. Cendant Mortg. Corp., 465 Fed. Appx. 675 (9th Cir.

6

2012).
The Court lacks jurisdiction to consider the untimely Motion
filed pursuant to Fed. R. Civ. P. 60(b)(3).

Nevitt v. United

States, 886 F.2d 1187, 1188 (9th Cir. 1989) (a district court
lacks jurisdiction to consider an untimely motion to set aside a
judgment).
III. The Rule 60(b) Motion To Set Aside Judgment Lacks Merit
Even if the Court had jurisdiction to consider the Rule
60(b)(3) Motion, the Court has not been provided with a legal or
factual basis upon which to vacate the Judgment entered on
November 30, 2007.
To prevail on a Motion filed pursuant to Fed. R. Civ. P.
60(b)(3), the moving party must prove by clear and convincing
evidence that the judgment was obtained through fraud,
misrepresentation, or other misconduct and that the conduct
complained of prevented the losing party from fully and fairly
presenting its side of the case.

Casey v. Albertson’s Inc., 362

F.3d 1254, 1260 (9th Cir. 2004).
No evidence, much less clear and convincing evidence, has
been provided of fraud upon the Court.

The Rule 60(b) Motion

argues that the Chief Executive Officer of the Hawaii Residency
Programs, Inc., Arthur Richard Philpott, misrepresented the
relationship between the Defendant and the State of Hawaii in

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2007.

(Pla.’s Memo. at pp. 6-17, ECF No. 103-1).

The Motion

specifically claims that Philpott misled the Court into finding
that the Defendant Hawaii Residency Programs, Inc. was not a
state actor.

(Id.)

There is no evidence to support the claim.

The Motion cites to multiple sections of the Hawaii Revised
Statutes and the Internal Revenue Code as a basis for the theory
that the Defendant Hawaii Residency Programs, Inc. should have
been treated as a state actor.

The argument is not well taken.

None of the sources cited in the Motion support the claim.
Mere dissatisfaction with the 2007 Order and Judgment of the
Court is not a sufficient basis to set it aside.

White v.

Sabatino, 424 F.Supp.2d 1271, 1274 (D. Haw. 2006); Haw.
Stevedores, Inc. v. HT & T Co., 363 F.Supp.2d 1253, 1269 (D. Haw.
2005).
IV.

The Six Exhibits Attached To The Motion Do Not Support
Vacating The Judgment
There are six exhibits attached to the Rule 60(b)(3) Motion.

None of the exhibits provide a basis upon which to set aside the
2007 Judgment.
A.

Exhibits 1, 2, and 4 Were Previously Available

Three of the exhibits, Exhibits 1, 2, and 4, were all
available at the time of the proceedings that led to the
Judgment.

Rule 60(b)(3) requires that the evidence of fraud be
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previously undiscoverable by due diligence before or during the
proceedings.

Casey, 362 F.3d at 1260.

Exhibit 1 was a letter from Daryl Matthews, M.D., Ph.D. to
the Board of Medical Examiners on Plaintiff’s behalf that was
dated September 7, 2006.

(2006 Letter attached as Ex. 1 to

Pla.’s Motion, ECF No. 103-2).
Exhibit 2 is a copy of a certificate from the University of
Hawaii to Plaintiff stating that she satisfactorily performed the
duties of pediatrics, psychiatry, and child and adolescent
psychiatry from July 1, 2001 to June 30, 2002.

(UH Certificate

attached as Ex. 2 to Pla.’s Motion, ECF No. 103-3).
Exhibit 4 is a copy of the 2003-2004 Agreement for
Appointment to Residency Training entered into between Defendant
Hawaii Residency Programs, Inc. and Plaintiff, dated January
2004.

(2003-2004 Agreement, attached as Ex. 4 to Pla.’s Motion,

ECF No. 103-5).
Exhibits 1, 2, and 4 were all previously available during
the 2007 proceedings.

Exhibits 1, 2, and 4 do not provide a

basis to set aside the Court’s November 30, 2007 Judgment.
B.

Exhibit 5 Presents No New Facts

Exhibit 5 was submitted in support of the Rule 60(b)(3)
Motion.

Exhibit 5 is a letter dated March 19, 2010 that was

written by Plaintiff and sent to the Accreditation Counsel for

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Graduate Medical Education.

(ACGME Letter dated March 19, 2010,

attached as Ex. 5 to Pla.’s Motion, ECF No. 103-6).
Exhibit 5 does not provide the Court with any new facts to
support a finding of fraud upon the Court.

The letter repeats

Plaintiff’s theory of the case regarding the Defendant Hawaii
Residency Programs, Inc. and its relationship to the University
of Hawaii.

The 2010 letter does not contain new information or

new facts to support there having been a fraud upon the Court in
2007.
C.

Exhibits 3 and 6 Do Not Support A Finding Of Fraud

Exhibit 3, attached to the Rule 60(b)(3) Motion, consists of
a portion of a chart that outlines some of the current
affiliations of the University of Hawaii Medical School.
attached as Ex. 3 to Pla.’s Motion, ECF No. 103-4).

(Chart

It is

entitled “JABSOM Graduate Medical Education Organization Struct.”
The Motion asserts that the chart was obtained from the
University of Hawaii Medical School website.

(Declaration of

Lillian M. Jones at ¶ 5, ECF No. 103-8).
Exhibit 6 is a 2013 Statement of Institutional Commitment to
Graduate Medical Education by the University of Hawaii, John A.
Burns School of Medicine.

(UH Statement signed January 25, 2013,

attached as Ex. 6 to Pla.’s Motion, ECF No. 103-7).

The

Statement of Commitment is signed by University of Hawaii

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executives and provides that the Medical School agrees to meet or
exceed compliance with the Accreditation Council for Graduate
Medical Education requirements.

(Id.)

The Rule 60(b)(3) Motion asserts that Exhibits 3 and 6
demonstrate that the Defendant Hawaii Residency Program, Inc. is
no longer a “charity organization” and is now established as a
“public charity.”

(Motion at p 2., ECF No. 103).

The Motion

claims the Defendant is a state actor and argues there was fraud
upon the Court in 2007.
Neither Exhibit 3 nor Exhibit 6 support such a claim.

The

evidence demonstrates that the Defendant Hawaii Residency
Programs, Inc. and the University of Hawaii changed their
relationship in 2012.

The change in relationship occurred well

after Plaintiff was a resident.

The evidence of the change in

relationship does not support a finding of fraud in 2007.
Defendant Hawaii Residency Programs, Inc. submitted a
Declaration from its Chief Executive Officer Arthur Richard
Philpott.

(Declaration of Arthur Richard Philpott dated May 8,

2017, (“Philpott Decl.”) attached to Def.’s Opp., ECF No. 107-3).
Philpott explained that in 2012, five years after the Court
issued its Judgment, the Defendant Hawaii Residency Programs,
Inc. redefined its relationship with the University of Hawaii.
(Id. at ¶ 8).

Philpott stated, in detail, as follows:

In Summer 2012, [Defendant Hawaii Residency Programs,
Inc. (“HRP”)] and the University of Hawaii (“UH”)
11

entered into extended negotiations to redefine their
relationship, respective responsibilities, and
authority in regard to Graduate Medication Education.
This ultimately resulted in an Agreement between UH and
HRP dated June 21, 2012, and later amended in the First
Amended Agreements between UH and HRP dated December
26, 2012.
The result of the 2012 Agreements was that the
relationship between HRP and UH was redefined to change
the organizational structure of Graduate Medical
Education and substitute the University of Hawaii Board
of Regents as the Governing Body for Graduate Medical
Education as opposed to the HRP Board of Directors.
Further, the employment of the Designated Institutional
Official (DIO), the individual with the academic
authority and responsibility for the Residency
Programs, changed from HRP to UH JABSOM. This resulted
in UH JABSOM faculty member becoming the DIO on July 1,
2012 and replacing me as th DIO.
In addition, the University pledged to assume ultimate
responsibility for the Residency Programs as reflected
in the Statement of Institutional Commitment to
Graduate Medical Education (attached as Plaintiff’s
Exhibit 6) and executed by the University of Hawaii’s
and UH JABSOM’s most senior officials in January 2013.
Plaintiff’s Exhibit 3 did not exist at the time this
Court entered its 2007 Order. I know this because the
Officer of the DIO and the Advisory Council were
created after the change in the DIO in 2012.
(Philpott Decl. at ¶¶ 8-11, ECF No. 107-3).
Philpott stated that despite the changes, the Defendant
Hawaii Residency Programs, Inc. remains a Section 501(c)(3) nonprofit organization, which is a separate entity from the
University of Hawaii Medical School.

(Id. at ¶ 12)

There is no basis to find that Defendant Hawaii Residency
Programs, Inc. engaged in fraud upon the Court in 2007.

The

changes in the relationship between Defendant and the University
12

of Hawaii did not occur until 2012.

There is no evidence that

the Court 2007 Judgment was unfairly obtained by fraud.
United States, 680 F.2d 1271, 1283 (9th Cir. 1982);

Bunch v.

DeSaracho v.

Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000)
(citing In re M/V Peacock, 809 F.2d 1403, 1405 (9th Cir. 1987)).
V.

There Are No Extraordinary Circumstances That Warrant Relief
There is no basis for the Court to set aside the Judgment

issued on November 30, 2007.

There are not any extraordinary

circumstances that would merit relief pursuant to Fed. R. Civ. P.
60(b)(6).

Latshaw v. Trainer Worthaw & Co., 452 F.3d 1097, 1103-

04 (9th Cir. 2006).
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CONCLUSION

Plaintiff’s Filing entitled, “MOTION TO SET ASIDE JUDGMENT
OF THE HAWAII RESIDENCY PROGRAMS, INCORPORATED, ET AL.” (ECF No.
103) is DENIED.
The Clerk of Court is DIRECTED TO CLOSE THE CASE.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, July 12, 2017.

Lillian M. Jones v. Hawaii Residency Programs, Inc.; University
of Hawaii; Naleen Andrade, M.D.; Courtenay Matsu, M.D.; Christian
Derauf, M.D.; Terry Lee, M.D.; Iqbal Ahmed, M.D.; Sheila Schiel,
Civ. No. 07-00015 HG-KSC; ORDER DENYING PLAINTIFF’S FILING
ENTITLED “MOTION TO SET ASIDE JUDGMENT OF THE HAWAII RESIDENCY
PROGRAMS, INCORPORATED, ET AL.” (ECF No. 103)
14