BlueEarth Biofuels LLC v. Hawaiian Electric Company Inc et al
Filing
615
ORDER DENYING PLAINTIFF BLUEEEARTH BIOFUELS, LLC'S MOTION FOR RECONSIDERATION OF THE COURT'S ORDER DENYING MOTION FOR RELIEF FROM THE COURT'S NOVEMBER 15, 2010 SUMMARY JUDGMENT ORDER 598 . Signed by JUDGE DAVID ALAN EZRA on 5/12/2011. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BLUEEARTH BIOFUELS, LLC,
)
)
Plaintiff,
)
)
vs.
)
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HAWAIIAN ELECTRIC
)
COMPANY, INC.; MAUI
)
ELECTRIC COMPANY, LTD.;
)
ALOHA PETROLEUM, LTD.; AND )
KARL E. STAHLKOPF,
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Individually,
)
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Defendants.
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_____________________________ )
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HAWAIIAN ELECTRIC
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COMPANY, INC., AND MAUI
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ELECTRIC COMPANY, LTD.,
)
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Counterclaim-Plaintiffs, )
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vs.
)
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BLUEEARTH BIOFUELS, LLC,
)
AND LANDIS MAEZ, Individually, )
)
Counterclaim)
Defendants.
)
)
_____________________________ )
CIV. NO. 09-00181 DAE-KSC
ORDER DENYING PLAINTIFF BLUEEARTH BIOFUELS, LLC’S MOTION
FOR RECONSIDERATION OF THE COURT’S ORDER DENYING MOTION
FOR RELIEF FROM THE COURT’S NOVEMBER 15, 2010 SUMMARY
JUDGMENT ORDER
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for
disposition without a hearing. After reviewing the motion as well as the
supporting and opposing memoranda, the Court DENIES BlueEarth BioFuels
LLC’s Motion for Reconsideration of the Court’s Order Denying Motion for Relief
from the Court’s November 15, 2010 Summary Judgment Order (“Motion”).
(Doc. # 598.)
BACKGROUND
After years of litigation, the Court as well as the parties are all
familiar with the underlying facts that have given rise to this litigation.
Accordingly, the Court will only recite those facts necessary for the resolution of
the instant Motion.
In 2006, BlueEarth Biofuels, LLC’s (“BlueEarth”), Hawaiian Electric
Company, Inc. (“HECO”) and Maui Electric Company, Ltd. (“MECO”) began
talks jointly to develop a local biodiesel production facility to replace their use of
petroleum diesel for power production. (“TAC,” Doc. # 387, ¶ 12; Doc. # 325, Ex.
2
166.) The new facility would produce biodiesel, which is derived from vegetable
feedstock.
After several months of negotiations, BlueEarth, HECO, and MECO
signed a confidential Memorandum of Understanding (the “MOU”) detailing the
plan for the “evaluation, funding and development” of the large-scale biodiesel
production facility to be developed by a newly formed limited liability company,
originally termed “Newco,” owned by the parties and located on MECO-owned
land on Maui (the “Project”). (TAC ¶ 19; Doc. # 269, Ex. C.) Although the MOU
was entered into between BlueEarth, HECO, and MECO, HECO’s responsibilities
in the MOU were expressly contemplated to be superceded by an unregulated
subsidiary identified as “HUS” and were so designated by the MOU’s terms.
(Doc. # 269, Ex. C.) HUS was defined as “[b]oth HECO and the Unregulated
Subsidiary[.]” (Id.)
The MOU specified how the parties would proceed with the Project’s
planning, developing, permitting, funding, construction, and operation. (Id.) The
MOU also contained a provision in which the parties agreed to “work exclusively
and in good faith with each other to develop” the Project. (Doc. # 269, Ex. C at 4.)
The MOU explicitly contemplated future formal agreements in furtherance of the
parties’ business relationship, including a “Tolling Agreement” for the
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long-term sale of biodiesel produced by the Project. (TAC ¶ 21, n.1; Doc. # 269,
Ex. C at 2.)
Subsequent to the signing of the MOU, two companies were formed:
(1) the parties created the entity identified in the MOU as “Newco” and named the
company BlueEarth Maui Biodiesel LLC (“BEMB”) (Doc. # 316, Ex. 111 at
H091481); and (2) HECO created the unregulated subsidiary contemplated in the
MOU as HUS and named it Uluwehiokama Biofuels Corp (“UBC”). (Doc. # 316,
Ex. 117). The parties negotiated, and on February 4, 2008 signed, an Operating
Agreement and an Investment Agreement (collectively, the “BEMB Agreements”)
to govern the operation and ownership of BEMB as contemplated in the MOU.
The BEMB agreements were entered into between BlueEarth, UBC and BEMB
and were signed on February 4, 2008. (See “Operating Agreement,” Doc. # 326,
Ex. 102; “Investment Agreement,” id., Ex. 103.)
Under the BEMB Agreements, BlueEarth and UBC were members of
BEMB—the entity created to develop the project. (FACC ¶ 15; Operating
Agreement at 40.) BlueEarth transferred to BEMB all of its development work
while the HUS responsibilities were transferred to UBC. (FACC ¶ 15) The
business affairs of BEMB, pursuant to the BEMB Agreements, were to be
managed by and under the direction of a Board of Managers with three members
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selected by BlueEarth and two selected by UBC. (Operating Agreement at 28, 19).
BlueEarth appointed Counterclaim Defendant Landis Maez (“Maez”) as one of its
three BEMB managers on February 4, 2008. (Id.)
As the Project progressed, BlueEarth and HECO worked jointly to
develop the Tolling Agreement and originally engaged in negotiations with Energy
Capital Partners (“ECP”) for this purpose.1 (Doc. # 316, Ex. 104.) After the
negotiations with ECP fell through, BlueEarth alleges that HECO, MECO, Karl
Stahlkopf—HECO’s then-Vice President of Energy Solutions and Chief
Technology Officer—and Aloha began engaging in private negotiations
concerning the development, investment, and ownership of the Project. (TAC
¶¶ 32–36.) BlueEarth further contends that HECO, MECO, and Aloha worked to
circumvent the MOU and their respective NDAs in order to cut BlueEarth out of
the Project altogether. (Id.)
In early October 2008, BlueEarth filed the instant lawsuit in the
Northern District of Texas, claiming that Defendants had violated the various
NDAs and the Confidentiality Agreement and engaged in a scheme to circumvent
1
The Court notes that although the responsibility for negotiations regarding
the Tolling Agreement was a UBC obligation (Doc. # 326, Ex. 102, Schedule C),
HECO and BlueEarth appear to have engaged in the negotiations as representatives
of BEMB. (Id.)
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BlueEarth’s role in the Project. (Id. ¶ 10.) On April 21, 2009, the case was
transferred to this District. (Id.)
On November 1, 2010, BlueEarth filed its Third Amended Complaint
(“TAC”). (Doc. # 387.) The Complaint alleges the following eleven causes of
action:
•
First: breach of contract (HECO NDA) against HECO (TAC
¶¶ 44–48);
•
Second: breach of contract (MECO NDA) against MECO (Id.
¶¶ 49–53);
•
Third: breach of contract (MOU) against HECO and MECO (Id.
¶¶ 54–59);
•
Fourth: quantum meruit/unjust enrichment against HECO and MECO
(Id. ¶¶ 60–63);
•
Fifth: breach of contract (Aloha NDA and Confidentiality Agreement)
against Aloha (Id. ¶¶ 64-68);
•
Sixth: unfair competition under Haw. Rev. Stat. § 480-2 against
HECO, MECO, Stahlkopf, and Aloha (Id. ¶¶ 69–76);
•
Seventh: tortious interference with existing contracts (all NDAs and
the Confidentiality Agreement) as to all Defendants (Id. ¶¶ 77–84);
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•
Eighth: tortious interference with existing contract (MOU) against
Aloha (Id. ¶¶ 85–89);
•
Ninth: misappropriation of trade secrets against all Defendants in
violation of Haw. Rev. Stat. § 482B-2 (Id. ¶¶ 90–93);
•
Tenth: conversion against all Defendants (Id. ¶¶ 94–95);
•
Eleventh: breach of fiduciary duty against HECO and MECO (Id.
¶¶ 96–101).
On May 18, 2010, BlueEarth filed a Motion for Partial Summary
Judgment as to Counts 1–3 of the SAC against HECO and MECO (“MPSJ”).
(Doc. # 268.) On August 2, 2010, HECO/MECO Defendants filed a CounterMotion for Partial Summary Judgment (“CMPSJ”). (“CMPSJ,” Docs. ## 315
(redacted), 322 (sealed).) On August 9, 2010, Aloha filed a Joinder in
HECO/MECO Defendants’ CMPSJ. (Doc. # 328.) On November 15, 2010, the
Court issued an Order Denying Plaintiff’s Motion for Partial Summary Judgment
and Granting Defendant HECO’S Counter-Motion for Partial Summary Judgment
(“November Order”). (“Nov. Order,” Doc. # 389.) The November Order, in part,
found that the BEMB Agreements operated as a novation of the MOU. (Id. at
16–47.)
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On February 1, 2011, BlueEarth filed a Motion for Relief from the
Court’s November 15, 2010 Summary Judgment Order (“Relief Motion”). (Doc.
# 479.) On March 28, 2011, the Court denied BlueEarth’s relief motion (“March
Order”). (“Mar. Order,” Doc. # 568.) BlueEarth now requests the Court
reconsider this Order.
On April 11, 2011, BlueEarth filed the instant Motion for
Reconsideration. (“Mot.,” Doc. # 598.) On April 25, 2011, Aloha filed its
Opposition. (“Aloha Opp’n,” Doc. # 608.) On April 28, 2011, the HECO/MECO
Defendants filed their Opposition. (“HECO Opp’n,” Doc. # 611.) On May 9,
2011, Aloha filed its Replies. (“Reply to Aloha,” Doc. # 613; “Reply to HECO,”
Doc. # 614.)
STANDARD OF REVIEW
Local Rule 60.1 allows a party to file a motion for reconsideration of
an interlocutory order. Reconsideration is permitted only on the following
grounds:
(a) discovery of new material facts previously not available;
(b) intervening change in law;
(c) manifest error of law or fact.
See Local Rule 60.1; see also Sierra Club, Haw. Chapter v. City & Cnty. of
Honolulu, 486 F. Supp. 2d 1185, 1188 (D. Haw. 2007) (“Local Rule 60.1 explicitly
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mandates that reconsideration only be granted upon discovery of new material
facts not previously available, the occurrence of an intervening change in law, or
proof of manifest error of law or fact.”).
A “motion for reconsideration must accomplish two goals. First, a
motion for reconsideration must demonstrate reasons why the court should
reconsider its prior decision. Second, a motion for reconsideration must set forth
facts or law of a strongly convincing nature to induce the court to reverse its prior
decision.” Donaldson v. Liberty Mut. Ins. Co., 947 F. Supp. 429, 430 (D. Haw.
1996); Na Mamo O `Aha `Ino v. Galiher, 60 F. Supp. 2d 1058, 1059 (D. Haw.
1999). Mere disagreement with a previous order is an insufficient basis for
reconsideration, and reconsideration may not be based on evidence and legal
arguments that could have been presented at the time of the challenged decision.
See Haw. Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253, 1269 (D. Haw.
2005). “Whether or not to grant reconsideration is committed to the sound
discretion of the court.” Navajo Nation v. Confederated Tribes & Bands of the
Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enter.,
Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000)).
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DISCUSSION
In its instant Motion, BlueEarth takes issue with two statements the
Court made in the March Order. In denying BlueEarth’s Relief Motion the Court
stated that “the circumstances warranted a finding of assent [to a novation]” and
that “[t]he only new piece of evidence that BlueEarth points to” is the letter from
Karl Stahlkopf that refers to the MOU as being still in existence. (Mar. Order at
30–31.) BlueEarth asserts that the Court was incorrect in making these findings
because “the Court does not take into account [Exhibits A–L] many of which are a
part of the summary judgment record and all directly related to BlueEarth’s
contention that the parties never intended a novation.” (Mot. at 7.) Despite
BlueEarth’s protestations, the Court is disinclined to revisit its March Order.
I.
Threshold Issues
BlueEarth’s failure to address the Court’s actual holding in the March
Order ultimately dooms the instant Motion for Reconsideration. The Court
proffered four reasons why it was denying the Relief Motion and refusing to
consider the merits of BlueEarth’s request for relief from the November Order in
its Relief motion:
•
The November Order was interlocutory rather than final and
Rule 60(b) could not therefore be used to challenge the
November Order. (Mar. Order at 14.)
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•
•
•
The November Order did not deprive BlueEarth of due process
and could not, therefore, be characterized as “void” per Rule
60(b)(4). (Id. at 20.)
BlueEarth’s request for relief under Local Rule 60.1 and Rule
54(b) could not be considered as it was raised for the first time
in its Reply. (Id. at 23.)
Even construing the Relief Motion as a motion for
reconsideration, it was untimely because it was filed more than
two months after the November Order. (Id. at 25–26.)
Only then did the Court turn to the merits of the Relief Motion and conclude that
its November Order was correctly decided. (Id. at 27–34.) Indeed, this was clearly
an alternative finding as the Court premised its merits discussion by stating
explicitly that it “would not, in any event, grant BlueEarth the relief it seeks even if
the motion had been timely filed.” (Id. at 27 (emphasis added).) Further, the Court
later summarized its rational for denying BlueEarth’s Relief Motion:
In sum, the Court DENIES BlueEarth’s motion for relief under
Rule 60(b)(4) because the November Order is neither final nor was it
issued in violation of due process. The Court further refuses to
consider BlueEarth’s request for relief per Local Rule 60.1 or Rule
54(b) as it was raised for the first time in BlueEarth’s Reply briefing.
The Court finds, however, that even if it were to consider BlueEarth’s
request for relief raised for the first time in its Reply briefing, it still
would not grant BlueEarth the relief it requests.
(Id. at 34 (emphasis added).)
In the Motion, BlueEarth has completely overlooked these threshold
findings made by the Court. It does not challenge the Court’s finding that the
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November Order was interlocutory or that Rule 60 is generally only used to
challenge final orders. BlueEarth does not dispute that the Court’s November
Order was not “void” as contemplated by Rule 60(b)(4). BlueEarth proffers no
argument in response to the Court’s finding that BlueEarth raised its request for
relief under Local Rule 60.1 and Rule 54(b) for the first time in its Reply briefing.
Finally, BlueEarth does not dispute the Court’s finding that even if the Court
construed the Relief Motion as a motion for reconsideration per Local Rule 60.1, it
was not timely filed.
BlueEarth’s only argument with respect to these threshold findings is
raised not in its Motion, but instead for the first time in its Reply. BlueEarth again
requests that the Court exercise its inherent powers to revisit its November Order.
(Reply to Aloha at 7–8; Reply to HECO at 9.) “Local Rule 7.4 states ‘[a] reply
must respond only to arguments raised in the opposition. Any argument raised for
the first time in the reply shall be disregarded.’” (Mar. Order at 21.) Once more
the Court is precluded from considering arguments BlueEarth has raised for the
first time in its reply briefing. As the Court stated in March, “a fundamental
purpose behind this rule is to prevent the unfair surprise and prejudice that can
result from an untimely filed argument.” (Id. at 20.) To consider now this
argument would deprive Aloha and the HECO/MECO Defendants of an
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opportunity to respond to BlueEarth’s argument in violation of the Local Rule 7.4
and its underlying purpose. The Court will not therefore consider BlueEarth’s
request that the Court exercise its inherent powers to revisit the November Order.2
Thus, having failed to raise a challenge to these threshold issues in its
Motion, BlueEarth has failed to provide the Court a reason to “reconsider its prior
2
The Court also notes that, even if it were to consider BlueEarth’s request in
its Reply briefing, it would still not exercise its inherent authority to revisit the
November Order. As the Court stated in its March Order:
The Ninth Circuit has recognized that “as long as a district
court has jurisdiction over the case, then it possesses the inherent
procedural power to reconsider, rescind or modify any interlocutory
order for cause seen by it to be sufficient.” City of Los Angeles,
Harbor Division v. Santa Monica Baykeeper, 254 F.3d 882, 889 (9th
Cir. 2001). This is primarily because the power to revise an
interlocutory order “was recognized at common law and is not derived
solely from the Federal Rules of Civil Procedure.” Id. at 886. . . .
Although the Court might may well have the power to disregard
the Local Rules, it is not convinced it should in the instant case.
[]BlueEarth only points to two instances of the Court overlooking
Local Rule 60.1 and both are unpublished opinions. Comparatively,
instances where the Court has refused to hear a motion to reconsider
because it was untimely are legion. See, e.g., Brenner v. IndyMac
Bank, F.S.B., Cv. No. 10-00113 SOM-BMK, 2010 WL 5387566, at
*2 (D. Haw. Dec. 17, 2010); United States v. Flaherty, Cv. No.
08-000493 SOM-KSC, 2010 WL 4273001, at *6
(D. Haw. Oct. 22, 2010); Hawaii v. U.S. Dep’t of Educ., Cv. No.
08-00044 DAE-BMK, 2010 WL 346445, at *4 (D. Haw. Jan. 29,
2010).
(Mar. Order at 25–26.)
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decision,” much less “set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision.” Donaldson, 947 F. Supp. at 430; Na
Mamo O `Aha `Ino, 60 F. Supp. 2d at 1059. For these reasons, the Court DENIES
BlueEarth’s Motion for Reconsideration.
II.
The Merits
In the alternative, the Court wants to be clear it would still not grant
the relief BlueEarth requests in the instant Motion even if BlueEarth had proffered
some rational for overcoming the threshold issues discussed supra.3 BlueEarth has
failed to satisfy the standard for reconsideration.
The crux of BlueEarth’s argument is that the Court failed to consider
all relevant information before denying the Relief Motion. (Mot. at 6.) BlueEarth
then provides the Court with eleven documents, lettered B through L, which
purport to demonstrate that the parties never intended a novation.4 (See id. at
8–11.) The Court cannot agree.
3
The Court notes that this assumption leads to a preposterous procedural
posture. Specifically, the Court would have to consider BlueEarth’s Motion for
Relief as a motion for reconsideration and the Court’s March Order as an Order
denying the motion for reconsideration. The instant Motion would therefore be a
motion for reconsideration of an order denying a motion for reconsideration.
4
Exhibit A is the MOU itself.
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First, it is curious that BlueEarth faults the Court for failing to
consider these documents in its March Order. BlueEarth only attached one of the
eleven documents attached to the instant Motion to its Relief Motion, which the
Court duly considered, albeit in the alternative. With the exception of Exhibit G,
BlueEarth had all of these documents within its possession when it filed the Relief
Motion and could have provided them to the Court.5 BlueEarth failed to do so.
“[R]econsideration may not be based on evidence and legal arguments that could
have been presented at the time of the challenged decision.” Haw. Stevedores, 363
F. Supp. 2d at 1269 (citing Kona Enter, Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000); All Haw. Tours, Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645,
649–50 (D. Haw. 1987).) Thus, to the extent that nine out of the eleven documents
now provided by BlueEarth to the Court could have been attached to the Relief
Motion, the Court finds that they cannot be used as a basis for reconsideration of
the Court’s March Order.
In any event, the standard for assent to a novation is objective, not
subjective. As the Court found both in its November and March Orders:
BlueEarth states that it never understood that UBC took
HECO’s place at any time with regard to its obligations under the
5
Indeed, six of the eleven documents, were submitted with BlueEarth’s
original Motion for Summary Judgment
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MOU. (See Opp’n to CMPSJ at 6; Doc. # 331, Maez Decl. ¶ 26.)
However, as stated above, the standard for assent is objective, not
subjective. The MOU expressly anticipated the BEMB Agreements
would formalize the MOU’s obligations and that HECO would create
an unregulated subsidiary—UBC—to take over all HUS/HECO’s
obligations. BlueEarth’s objective assent to the novation is evidenced
through its demonstrated knowledge that UBC, once formed, would
carry the HUS’s obligations under the MOU and that the MOU would
be superseded by the BEMB Agreements, which BlueEarth drafted
and signed. Further, UBC, not HECO, satisfied the amended funding
obligation without objection by BlueEarth when it delivered $380,000
to BEMB on the effective date of the Operating
[Agreement—February 4, 2008—and the final $20,000 on March 31,
2008.]
(Mar. Order at 30–31 (quoting Nov. Order at 45).) In its November Order, the
Court went on to state:
[T]he language of the MOU and the circumstances surrounding its
drafting and the drafting of the Operating Agreement demonstrate that
the BEMB Agreements were intended to supersede the MOU.
Because a different party—UBC—was substituted as the obligor for
HUS/HECO, this supersession was a novation. From the beginning,
the MOU reflected the parties’ intent that HUS (and HECO) serve as a
stand-in until UBC could be formed and assume any HUS/HECO
responsibilities. Once BEMB and UBC were formed, the parties
finalized the BEMB Agreements, which covered the same subject
matter as the MOU, but provided further detail and formalization such
as assigning all former HUS/HECO responsibilities to UBC. As
UBC’s predecessor, HUS/HECO was an intended beneficiary of the
BEMB Agreements’ integration clauses, because HUS/HECO was
relieved of all obligations under the MOU as anticipated by the MOU
and was discharged of any further obligation. See generally Jones v.
Don L. Gordon Corp., 586 P.2d 1024, 1027 (Haw. 1978) (the trial
court’s conclusion was “supportable only on the theory of a novation
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which substituted Star for Gordon and relieved Gordon from
responsibility for performance of the contract.”). Moreover, given the
fact that the MOU and BEMB Agreements cover the same subject
matter and there is nothing on the Agreements’ face to show that they
were intended to be supplemental as demonstrated by the merger
clauses, the BEMB Agreements are a novation of the MOU by
operation of law.
(Nov. Order at 45–46.) Indeed, BlueEarth in the instant Motion overlooks the
language of the MOU which reflected the parties intent to supersede it with more
formal agreements subsequent to its signing as well as the BEMB agreements,
which covered all the subject matter of the MOU and contained merger clauses
reflecting the parties’ intentions to supersede the MOU. (Nov. Order at 39, 41,
45.) BlueEarth’s repeated reliance on various subjective statements that allegedly
support its contention that the MOU remained in effect subsequent to the signing
of the BEMB Agreements once more must fail. Such assertions were first
insufficient for BlueEarth to prevail on its Motion for Summary Judgment, then
insufficient for BlueEarth to prevail on its Relief Motion, and are now insufficient
for BlueEarth to prevail on the instant Motion for Reconsideration of the Court’s
March Order. See Standard Mgmt., Inc. v. Kekona, 53 P.3d 264, 273 (Haw. App.
2001). BlueEarth has failed to “set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision.” Donaldson, 947 F. Supp.
at 430; Na Mamo O `Aha `Ino, 60 F. Supp. 2d at 1059. The Court’s finding in the
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November Order that the language and circumstances surrounding the signing of
the MOU demonstrated an objective assent to novation therefore stands.
CONCLUSION
For the reasons stated above, the Court DENIES BlueEarth BioFuels
LLC’s Motion for Reconsideration of the Court’s Order Denying Motion for Relief
from the Court’s November 15, 2010 Summary Judgment Order. (Doc. # 598.)
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 12, 2011.
_____________________________
David Alan Ezra
United States District Judge
BlueEarth Biofuels, LLC v. Hawaiian Electric Company, Inc., et al., Civ. No. 0900181 DAE-KSC; ORDER DENYING PLAINTIFF BLUEEARTH BIOFUELS,
LLC’S MOTION FOR RECONSIDERATION OF THE COURT’S ORDER
DENYING MOTION FOR RELIEF FROM THE COURT’S NOVEMBER 15,
2010 SUMMARY JUDGMENT ORDER
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