Ruppersberger v. Ramos
Filing
140
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION re 136 - Signed by JUDGE ALAN C. KAY on 7/31/2020. (emt, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
JOHN SIDNEY RUPPERSBERGER,
Plaintiff,
vs.
ROSARIO MAE RAMOS,
Defendant.
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ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION
For the reasons discussed below, the Court DENIES
Defendant’s Motion for Reconsideration, ECF No. 136 (the
“Motion”).
BACKGROUND
The relevant factual and procedural history of this
case was outlined in the Court’s order granting summary
judgment, ECF No. 134, Ruppersberger v. Ramos, No. CV 11-00145
ACK-KJM, 2020 WL 1894400 (D. Haw. Apr. 16, 2020) (the “April 16
Order”), on which Defendant now seeks reconsideration.
The
Court incorporates that background by reference here and will
review the history as is pertinent to its discussion below.
After the April 16 Order was issued, Defendant filed
her Motion seeking reconsideration under Federal Rule of Civil
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Procedure (“Rule”) 59(e).
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See Reply, ECF No. 139, at 2.
Pursuant to the Court’s direction, Plaintiff filed his
opposition on June 5, and Defendant filed her reply on June 12.
Motions for reconsideration are decided without a hearing under
Local Rule 7.1(d).
STANDARD
Under Rule 59(e), a litigant may file “[a] motion to
alter or amend a judgment” within 28 days after entry of the
judgment.
“The Rule gives a district court the chance to
rectify its own mistakes in the period immediately following its
decision.”
Banister v. Davis, 140 S. Ct. 1698, 1703 (2020)
(internal quotation marks and citation omitted).
“In keeping
with that corrective function, ‘federal courts generally have
[used] Rule 59(e) only’ to ‘reconsider[] matters properly
encompassed in a decision on the merits’” and “will not address
new arguments or evidence that the moving party could have
raised before the decision issued.”
Id. (quoting White v. N.H.
Dept. of Emp’t Sec., 455 U.S. 445, 450, 102 S. Ct. 1162, 71 L.
Ed. 2d 325 (1982) (alternations in original)); see also Exxon
Shipping Co. v. Baker, 554 U.S. 471, 486 n.5, 128 S. Ct. 2605,
2617, 171 L. Ed. 2d 570 (2008) (stating that a Rule 59(e) motion
for reconsideration may not present evidence or raise legal
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arguments that could have been presented at the time of the
challenged decision).
Rule 59(e) offers “an extraordinary remedy, to be used
sparingly in the interests of finality and conservation of
judicial resources.”
Carroll v. Nakatani, 342 F.3d 934, 945
(9th Cir. 2003) (internal quotation marks and citation omitted).
The Ninth Circuit has announced “four basic grounds upon which a
Rule 59(e) motion may be granted”: (1) “to correct manifest
errors of law or fact”; (2) “newly discovered or previously
unavailable evidence”; (3) “to prevent manifest injustice”; or
(4) if there is “an intervening change in controlling law.”
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir.
2011); Bylsma v. Hawaii, No. 19-CV-00535-DKW-WRP, 2020 WL
759119, at *1 (D. Haw. Feb. 14, 2020).
Mere disagreement with a previous order is an
insufficient basis for reconsideration.
See Leong v. Hilton
Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988).
“Whether
or not to grant reconsideration is committed to the sound
discretion of the court.”
Navajo Nation v. Confederated Tribes
& Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th
Cir. 2003).
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DISCUSSION
Defendant seeks reconsideration of the April 16 Order
on two bases.
First, Defendant argues that the Court failed to
consider that the statute of limitations should bar Plaintiff’s
claim.
Second, Defendant argues that the Court failed to
consider enforcing the parties’ forum selection clause.
The
Court rejects both arguments and DENIES Defendant’s Motion.
I.
Statute of Limitations
a. History of the Court’s April 16 Order
This case was initially filed in 2011 based on
Defendant’s failure to pay two promissory notes.
The parties
reached settlement later that year, the terms of which included
Defendant executing a new promissory note in favor of Plaintiff
secured by a mortgage, and Plaintiff dismissing the case.
The
parties entered a self-executing stipulated dismissal of that
original action with prejudice, which the Court approved as to
form only in January 2012.
ECF No. 35.
After the parties reached settlement, however,
Defendant committed ongoing and blatant violations of that
settlement.
See ECF Nos. 51, 53.
Plaintiff returned to the
Court and sought enforcement of the parties’ settlement
agreement.
ECF No. 36.
In so doing, Plaintiff did not pay a
new filing fee and obtain a new case number; instead Plaintiff
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filed a subsequent Motion to Enforce the Settlement (the
“Enforcement Motion”) under the original case heading.
Nearly three years of litigation followed during which
the Court granted Plaintiff’s Enforcement Motion, ECF Nos. 51,
53; the Court appointed a receiver, ECF No. 54; and the receiver
sought a writ of possession and ejectment, ECF No. 64.
These
developments culminated in December 2018 when the Court denied
the receiver’s motion for a writ of possession and ejectment.
ECF No. 99.
The Court held that Defendant successfully resisted
the eviction motion because neither Plaintiff nor the receiver
had title to the property and therefore under the law were not
entitled to proceed with an eviction remedy.
Plaintiff’s only
remedy at that juncture was to seek to foreclose the mortgage
Plaintiff held on the property.
Accordingly, the Court granted
Plaintiff leave to file an amended complaint pursuing
foreclosure.
Plaintiff filed an amended complaint three weeks
later, ECF No. 100, and then moved for summary judgment on the
amended complaint, ECF No. 110 (the “Summary Judgment Motion”).
In opposing Plaintiff’s Summary Judgment Motion,
Defendant argued at length that the Supreme Court’s holding in
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.
Ct. 1673, 128 L. Ed. 2d 391 (1994) meant that the Court lacked
jurisdiction over this case.
ECF No. 119.
Defendant
acknowledged that the Court had diversity jurisdiction over the
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original complaint but argued that the Court was divested of
jurisdiction when the parties entered a self-executing
stipulation of dismissal with prejudice.
The April 16 Order ultimately rejected Defendant’s
argument.
First, the Court acknowledged that it lacked
jurisdiction over the original complaint under Kokkonen.
No. 134.
ECF
But diversity was still present with regard to the
subsequent enforcement dispute and Defendant herself conceded
that Plaintiff could merely refile the same action in the same
court.
ECF No. 119 at 22-23.
The Court relied on analogous
precedent from the Supreme Court, the Ninth Circuit, and other
district courts to find that—in certain instances—it is
appropriate to construe an amended complaint as a new action.
Construing Plaintiff’s amended complaint as a new action, the
Court found that it has diversity jurisdiction over the case.
The Court then granted the motion for summary judgment.
b. The Reconsideration Motion
Seeking reconsideration, Defendant now argues that
treating the amended complaint as a new action for
jurisdictional purposes created a statute of limitations problem
for Plaintiff.
Enforcement of a settlement agreement is a
breach of contract dispute, Kokkonen, 511 U.S. at 381, to which
a six-year limitation period applies, HRS § 657-1.
Because the
first breach of the settlement agreement occurred by June 2012,
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and the amended complaint was not filed until December 2018,
Defendant argues that the six-year limitations period had
elapsed.
The Court rejects Defendant’s argument because the
Court finds that equitable tolling applies.
Equitable tolling
of the limitations period applies when a plaintiff “has been
pursuing his rights diligently” and “some extraordinary
circumstance stood in his way” preventing timely filing.
Holland v. Florida, 560 U.S. 631, 649, 130 S. Ct. 2549, 2562,
177 L. Ed. 2d 130 (2010); see also Office of Haw. Affairs v.
State, 110 Haw. 338, 360, 133 P.3d 767, 789 (2006) (providing
the same requirements for equitable tolling of a Hawaii
statute).
Plaintiff meets both requirements here. 1/
1/ Federal tolling principles further provide that “time bars in suits
between private parties are presumptively subject to equitable tolling.”
United States v. Kwai Fun Wong, 575 U.S. 402, 407, 135 S. Ct. 1625, 1630, 191
L. Ed. 2d 533 (2015). That presumption may be rebutted by a showing that the
relevant limitation period was clearly intended by Congress as a
“jurisdictional” bar on the Court’s authority. Id. First, it is not clear
that Hawaii tolling principles require the same jurisdictional analysis. See
Office of Haw. Affairs, 110 Haw. at 360 (discussing equitable tolling without
reference to any jurisdictional analysis); Paco v. Myers, 143 Hawaii 330, 430
P.3d 891 (Ct. App. 2018) (same). Second, even if the Court applied federal
equitable tolling principles, the text of the limitations period at issue is
analogous to the limitations period the Supreme Court found nonjurisdictional in Kwai Fun Wong, and the Court would reach the same
conclusion here. In Kwai Fun Wong, the Supreme Court stated that “most time
bars are nonjurisdictional,” noting that “[t]ime and again, we have described
filing deadlines as quintessential claim-processing rules, which seek to
promote the orderly progress of litigation,” but are nonjurisdictional
because they “do not deprive a court of authority to hear a case.” 575 U.S.
at 410. The Supreme Court thus found 28 U.S.C. § 2401(b) was
nonjurisdictional. That statute contains the following “mundane statute-oflimitations language”: “A tort claim against the United States shall be
forever barred unless it is presented . . . within two years after such claim
(Continued . . .)
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As explained above, when Defendant failed to comply
with the settlement agreement, Plaintiff diligently pursued his
rights to obtain enforcement of the settlement agreement.
Plaintiff brought a motion to enforce the agreement, on which he
received a favorable ruling and obtained a court-appointed
receiver.
ECF Nos. 53, 54.
Plaintiff and the court-appointed
receiver continued to seek relief for Defendant’s ongoing
violations of the settlement agreement over the next three
years.
When the Court ultimately denied the receiver’s motion
for a writ of possession and ejectment based on Plaintiff
lacking title, ECF No. 99, Plaintiff promptly filed his amended
complaint to foreclose his mortgage on the property, ECF
No. 100.
Plaintiff has also been faced with extraordinary
circumstances preventing his timely filing of a new action: the
Court granted his Enforcement Motion in 2015.
ECF Nos. 51, 53.
Had the Court held then that the stipulated dismissal divested
it of jurisdiction (as it later held in the April 16 Order),
accrues or unless action is begun within six months after” the agency’s
denial of the claim. The Court here considers the similar language of HRS
§ 657-1, which provides: “The following actions shall be commenced within six
years next after the cause of action accrued, and not after: (1) Actions
for the recovery of any debt founded upon any contract . . .” Like the
statute in Kwai Fun Wong, HRS § 657-1 “does not speak in jurisdictional
terms” and “does not define a federal court’s jurisdiction over tort claims
generally, address its authority to hear untimely suits, or in any way cabin
its usual equitable powers.” Kwai Fun Wong, 575 U.S. at 410-11; see also
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154, 133 S. Ct. 817, 824,
184 L. Ed. 2d 627 (2013) (finding nonjurisdictional the time limitation on
when health care providers may file an administrative appeal from an initial
reimbursement determination).
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Plaintiff could have simply, and timely, filed a new action to
foreclose his mortgage.
The Court will not now prevent
Plaintiff from seeking that relief where he reasonably relied on
the Court’s prior orders.
See Kwai Fun Wong v. Beebe, 732 F.3d
1030, 1053 (9th Cir. 2013), aff’d and remanded sub nom. United
States v. Kwai Fun Wong, 575 U.S. 402, 135 S. Ct. 1625, 191 L.
Ed. 2d 533 (2015) (applying equitable tolling where the court
granted leave to file an amended complaint after the limitations
period had elapsed, and noting that “by informing the parties
and the court of her desire to file an FTCA claim well before
the filing deadline and requesting leave to do so, Wong
fulfilled the notice concern that partially underlies
limitations statutes”); Sossa v. Diaz, 729 F.3d 1225, 1230 (9th
Cir. 2013) (applying equitable tolling where a habeas petitioner
relied on a magistrate judge’s extension of time to file a
petition instead of complying with the earlier statutory
deadline). 2/
The Court finds that Plaintiff has been diligently
pursuing his rights well within the statutory deadlines and that
Plaintiff has faced extraordinary circumstances and reasonably
2/
Although these are both federal cases, as stated above, the Hawaii
Supreme Court has adopted the the same two elements for equitable tolling as
apply under federal law and the Court accordingly finds the federal decisions
persuasive. Chun v. City & Cty. of Honolulu, No. CV 18-00131 JMS-RT, 2020 WL
3965943, at *3 n.6 (D. Haw. July 13, 2020) (“Because Hawaii has largely
adopted the federal standard for equitable tolling, the court relies on
federal cases discussing equitable tolling as it relates to a mental
impairment.”).
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relied on the Court’s orders which have prevented him from
timely filing a new action.
Accordingly, the Court holds that
equitable tolling applies and DENIES Defendant’s Motion on the
statute of limitations.
II.
Forum Selection Clause
Defendant’s second argument for reconsideration is
that the Court failed to consider a forum selection clause in
the settlement agreement.
The promissory note that served as
the basis for the parties’ settlement included a provision
stating, “The Debtor hereby acknowledges that jurisdiction for
this transaction remains in Hawaii County, State of Hawaii.”
ECF Nos. 136; 111-2.
Defendant argues that this constitutes a
binding exclusive forum selection clause requiring any dispute
to be brought in Hawaii County state court.
Defendant may not make this argument on
reconsideration because she could have done so in opposing the
motion for summary judgment.
Indeed, in her Opposition and
Counter Motion to Dismiss, Defendant requested that the Court
require Plaintiff “to bring any separate enforcement action
anew, either in this District Court in the regular course or in
Hawaii County State Third Circuit Court which the parties
jointly contractual[ly] chose as their forum of choice in the
first place.”
ECF No. 119 at 23.
Defendant thus conceded that
Plaintiff could bring a separate enforcement action anew in this
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District Court, and she cannot rely on Rule 59(e) to now alter
her tactic.
As stated above, a Rule 59(e) motion does not
permit the submission of additional arguments “that the moving
party could have raised before the decision issued.”
Banister,
140 S. Ct. at 1703.
Further, Plaintiff correctly points out that Defendant
waived this argument by failing to raise it until now.
Opp. to
Reconsideration Motion at 10-11 (citing E. & J. Gallo Winery v.
Encana Energy Services, Inc., 388 F. Supp. 2d 1148, 1161-62
(E.D. Cal. 2005) (“Defendants have waived any invocation of the
forum selection clause. . . . Rule 12 provides that any
objection to venue must be made in connection with the first
motion pursuant to Rule 12 or the objection to venue is
waived”)).
Rule 12(h) provides that a defense of improper venue
is waived if a defendant does not include it in her first Rule
12 motion or, if no such motion is filed, in her answer.
“This
principle applies to motions to dismiss for improper venue based
on contractual forum selection clauses as well as on statutory
venue issues.”
Am. Home Assurance Co. v. TGL Container Lines,
Ltd., 347 F. Supp. 2d 749, 765 (N.D. Cal. 2004).
Defendant did
not file any Rule 12 motion prior to her Answer (as is required
for a Rule 12 motion based on improper venue), and her Answer
does not reference a forum selection clause defense.
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No. 102 (Defendant’s Answer).
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Accordingly, Defendant has waived
the argument.
Regardless, the Court would not apply the so-called
“forum selection clause” that Defendant points to because it is
not mandatory.
Even if a forum selection clause is valid, the
court must also determine whether it is mandatory or permissive.
Docksider, Ltd. v. Sea Tech., Ltd., 875 F.2d 762, 763 (9th Cir.
1989).
Permissive forum selection clauses “agree that
jurisdiction and venue would be proper in a particular forum,”
whereas mandatory forum selection clauses “agree that suit is
proper only in that forum.”
Greys Ave. Partners, LLC v.
Theyers, 431 F. Supp. 3d 1121, 1133 (D. Haw. 2020) (finding a
forum selection clause permissive where it stated the parties
had submitted “to the nonexclusive jurisdiction” of New Zealand
courts).
Courts have found forum selection clauses permissive
where they include language such as, “The courts of California,
County of Orange, shall have jurisdiction over the parties in
any action at law.”
Hunt Wesson Foods, Inc. v. Supreme Oil Co.,
817 F.2d 75, 76 (9th Cir. 1987) (“Although the word ‘shall’ is a
mandatory term, here it mandates nothing more than that the
Orange County courts have jurisdiction.
Thus, [the defendant]
cannot object to litigation in the Orange County Superior Court
on the ground that the court lacks personal jurisdiction.
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consent to jurisdiction, however, does not mean that the same
subject matter cannot be litigated in any other court.”); see
also N. California Dist. Council of Laborers v. Pittsburg-Des
Moines Steel Co., 69 F.3d 1034, 1036 (9th Cir. 1995) (concluding
that clause stating that arbitrator’s decision “shall be
enforceable . . . in the Superior Court of the City and County
of San Francisco, State of California” meant parties consented
to jurisdiction and venue there, but did not forbid litigation
elsewhere because it did not clearly require exclusive
jurisdiction there).
In contrast, mandatory forum selection clauses include
language such as, “Any dispute arising must be treated before
the London Court of Justice.”
M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 2, 92 S. Ct. 1907, 1909, 32 L. Ed. 2d 513
(1972); see also Docksider, Ltd., 875 F.2d at 763 (concluding
that the forum selection clause was mandatory when the clause
provided that “Venue of any action brought hereunder shall be
deemed to be in Gloucester County, Virginia”); Pelleport
Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273,
275 (9th Cir. 1984) (concluding that the forum selection clause
was mandatory when the clause provided that “any and all
disputes arising out of or in connection with this Agreement
shall be litigated only in the Superior Court for Los Angeles,
California (and in no other)”), overruled in part on other
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grounds in Powerex Corp. v. Reliant Energy Servs., Inc., 551
U.S. 224, 127 S. Ct. 2411, 168 L. Ed. 2d 112 (2007); Talatala v.
Nippon Yusen Kaisha Corp., 974 F. Supp. 1321, 1325 (D. Haw.
1997) (holding that the forum selection clause was mandatory
when the contract stated that “any action thereunder shall be
brought before the Tokyo District Court in Japan”).
The language Defendant cites here is permissive.
The
language provides that jurisdiction “remains” in Hawaii County,
but does not provide any indication that remaining jurisdiction
is to the exclusion of other venues.
Said differently, the
language here acknowledges that Hawaii County has jurisdiction,
but unlike language found mandatory in other cases, the relevant
clause contains no reference to “any action” or “any dispute”
being limited exclusively to Hawaii County.
Because Defendant’s argument regarding the forum
selection clause is improperly brought under Rule 59(e), has
been waived, and the Court finds that it lacks merit regardless,
Defendant’s Motion on this basis is DENIED.
CONCLUSION
For the foregoing reasons, the Court DENIES
Defendant’s Motion for Reconsideration, ECF No. 136.
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IT IS SO ORDERED.
DATED:
Honolulu, Hawai`i, July 31, 2020.
________________________________
Alan C. Kay
Sr. United States District Judge
Ruppersberger v. Ramos, Civ. No. 11-00145 ACK-KJM, Order Denying
Defendant’s Motion for Reconsideration.
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