Banks et al v. McHugh et al

Filing 150

ORDER DENYING PLAINTIFF TAMANEE MUNDY'S MOTION FOR RECONSIDERATION OF ORDER GRANTING DISMISSAL AND SUMMARY JUDGMENT ON THE CLAIMS OF TAMANEE MUNDY re 141 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/31/2014. (eps)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
KELVIN BANKS, ALISON BEAVERS,
DAVID “FLYING WITH EAGLES”
BEVETT, CHARLES W. DICKEY,
MARCEAU DOZE-GUILLORY, EDWARD
MANIGAULT, TAMANEE MUNDY,
WANDA THOMAS, SYLVIA VEGA,
and CHINY WANG,

)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
JOHN McHUGH, SECRETARY
)
DEPARTMENT OF THE ARMY;
)
LEON E. PANETTA, SECRETARY,
)
DEPARTMENT OF DEFENSE,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 11-00798 LEK-KSC

ORDER DENYING PLAINTIFF TAMANEE MUNDY’S MOTION
FOR RECONSIDERATION OF ORDER GRANTING DISMISSAL AND
SUMMARY JUDGMENT ON THE CLAIMS OF TAMANEE MUNDY
On August 29, 2014, this Court issued its Order
Granting Defendant’s Motion for Dismissal and Summary Judgment on
the Claims of Plaintiff Tamanee Mundy; and Granting Defendant’s
Motion for Dismissal and Summary Judgment on the Claims of
Plaintiff Chiny Wang (“8/29/14 Mundy Order”).1

[Dkt. no. 135.2]

1

Defendant John McHugh, Secretary, Department of the Army,
(“Defendant”) filed his Motion for Dismissal and Summary Judgment
on the Claims of Plaintiff Tamanee Mundee (“Summary Judgment
Motion”) on May 13, 2014. [Dkt. no. 84.]
2

The 8/29/14 Mundy Order is also available at 2014 WL
4276646.

On September 9, 2014, Plaintiff Tamanee Mundy (“Mundy”) filed her
Motion for Reconsideration of Order Granting Dismissal and
Summary Judgment on the Claims of Tamanee Mundy (“Motion for
Reconsideration”).

[Dkt. no. 141.]

On September 18, 2014,

Defendant filed his memorandum in opposition to the Motion for
Reconsideration.

[Dkt. no. 143.]

After careful consideration of

the motion, the supporting and opposing memoranda, and the
relevant legal authority, the Court HEREBY DENIES the Motion for
Reconsideration for the reasons set forth below.
BACKGROUND
In the 8/29/14 Mundy Order, this Court, inter alia:
- dismissed Mundy’s allegations related to her supervisor prior
to 2008, Colonel Kenneth Batts, because Mundy failed to
exhaust her administrative remedies as to Col. Batts; 2014
WL 4276646, at *2-3;
- granted the Summary Judgment Motion as to all of Mundy’s other
claims, including claims for a hostile work environment,
discrete acts of discrimination, and retaliation on the
basis of race – all based on acts by her supervisor in 2008,
Captain Kenneth Kelly, and colleague James Scott Hallmark;
id. at *3-6; and
- found that Mundy did not allege discrimination on the basis of
disability in her Complaint; id. at *5 & n.6.
In the instant Motion for Reconsideration, Mundy argues
that these rulings should be reversed due to newly discovered
evidence.

[Mem. in Supp. of Motion for Reconsideration at 2.]

2

STANDARD
In order to obtain reconsideration of the 8/29/14 Mundy
Order, Mundy’s 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.”

See Davis v. Abercrombie, Civil No.

11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D. Hawai`i June 2,
2014) (citation and internal quotation marks omitted).

This

district court recognizes three circumstances where it is proper
to grant reconsideration of an order: “(1) when there has been an
intervening change of controlling law; (2) new evidence has come
to light; or (3) when necessary to correct a clear error or
prevent manifest injustice.”

Tierney v. Alo, Civ. No. 12-00059

SOM/KSC, 2013 WL 1858585, at *1 (D. Hawai`i May 1, 2013) (citing
School District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th
Cir. 1993)).

“‘Evidence is not newly discovered if it was in the

party’s possession at the time of summary judgment or could have
been discovered with reasonable diligence.’”

Waikoloa Dev. Co.

v. Hilton Resorts Corp., Civil No. 13-00402 DKW-BMK, 2014 WL
3735446, at *2 (D. Hawai`i July 25, 2014) (quoting Wallis v. J.R.
Simplot Co., 26 F.3d 885, 892 n.6 (9th Cir. 1994)).

3

DISCUSSION
Mundy argues that “[m]aterial evidence that was not
available when the parties filed briefs on the summary judgment
issue has become available and provides a basis for the
reconsideration here requested.”
Reconsideration at 2.]

[Mem. in Supp. of Motion for

The Court FINDS, however, that the

evidence is neither new nor does it provide a basis for
reconsidering the 8/29/14 Mundy Order.
The evidence consists entirely of deposition excerpts
from Mundy’s own deposition, taken August 14, 2014.
Decl. of Anthony P.X. Bothwell, Exh. A.]

[Id. at 2-8,

While the deposition

itself occurred after Mundy filed her memorandum in opposition to
the Summary Judgment Motion, it is not “newly discovered” insofar
as all of the information described therein was in Mundy’s
possession from the time of the purported discrimination and
retaliation in 2004 through 2009.
n.6.

See Wallis, 26 F.3d at 892

Further, the content of the testimony – Mundy’s allegations

about specific discriminatory and retaliatory incidents – was
already submitted by Mundy in a declaration along with her
memorandum in opposition to the Summary Judgment Order,
considered by the Court, and expressly rejected in the 8/29/14
Mundy Order.

Since Mundy has not presented a proper basis for

the Court to reconsider the 8/29/14 Mundy Order, let alone any
facts “of a strongly convincing nature to induce the court to
4

reverse its prior decision,” see Davis, 2014 WL 2468348, at *2,
the Court DENIES the Motion for Reconsideration.
There being no remaining claims in this case, the Court
DIRECTS the Clerk’s Office to enter judgment and close the case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 31, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

KELVIN BANKS, ET AL. VS. JOHN MCHUGH, ET AL; CIVIL 11-00798 LEKKSC; ORDER DENYING PLAINTIFF TAMANEE MUNDY’S MOTION FOR
RECONSIDERATION OF ORDER GRANTING DISMISSAL AND SUMMARY JUDGMENT
ON THE CLAIMS OF TAMANEE MUNDY

5