Baker v. State of Hawai'i et al.

Filing 83

ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION OF THIS COURT'S ORDER GRANTING STATE DEFENDANTS' AND DEFENDANT ROBERT KORBEL DAVIS JR.'S MOTION TO DISMISS. Signed by JUDGE LESLIE E. KOBAYASHI on 12/13/2013. ~ This Court reminds Plaintiffs that they must serve Defendants Hugh E. Gordon and Scott D. Parker with the First Amended Complaint by December 20, 2013. [Dkt. no. 69.] This Court CAUTIONS Plaintiffs that, if they fail to serve Defendants Gordon and Parker with the First Amended Complaint by December 20, 2013, this Court will dismiss Plaintiffs' claims against Defendants Gordon and Parker without prejudice. See Fed. R. Civ. P. 4(m). ~ Re: 71 MOTION for Reconsideration re 66 O rder on Motion to Dismiss for Failure to State a Claim (ecs, )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
FREDERICK H.K. BAKER, JR. and )
HAUNANI Y. BAKER,
)
)
)
Plaintiffs,
)
vs.
)
)
STATE OF HAWAI`I; STATE OF
)
HAWAI`I BY ITS’ DEPARTMENT OF )
HAWAIIAN HOME LANDS; NEIL
)
ABERCROMBIE; HUGH E. GORDON; )
)
SCOTT D. PARKER; ROBERT
)
KORBEL DAVIS, JR; JOHN DOES
)
1-100; and JANE DOES 1-100,
)
)
Defendants.
_____________________________ )

CIVIL NO. 13-00159 LEK-KSC

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
OF THIS COURT’S ORDER GRANTING STATE DEFENDANTS’ AND
DEFENDANT ROBERT KORBEL DAVIS JR.’S MOTION TO DISMISS
Before the Court is pro se Plaintiffs Frederick H.K.
Baker, Jr. and Haunani Y. Baker’s (collectively, “Plaintiffs”)
motion for reconsideration of this Court’s October 7, 2013
dismissal order (“Motion for Reconsideration”), filed on
October 25, 2013.

[Dkt. no. 71.]

Defendant Robert Korbel Davis,

Jr. (“Defendant Davis”) filed his memorandum in opposition on
November 11, 2013, and Defendants the State of Hawai`i (“the
State”), Department of Hawaiian Home Lands (“DHHL”), and Neil
Abercrombie’s (collectively, “the State Defendants”)1 filed their

1

This Court will refer to the State Defendants, Defendant
Davis, and Defendants Hugh E. Gordon and Scott D. Parker
collectively as “Defendants.”

memorandum in opposition on November 12, 2013.

[Dkt. nos. 78,

Plaintiffs filed their reply on December 2, 2013.2

79.]

no. 80.]

[Dkt.

The Court finds this matter suitable for disposition

without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

After careful consideration of the

Motion for Reconsideration, supporting and opposing memoranda,
and the relevant legal authority, Plaintiffs’ Motion for
Reconsideration is HEREBY DENIED for the reasons set forth below.
BACKGROUND
The relevant factual and procedural background is set
forth in this Court’s October 7, 2013 Order Granting State
Defendants’ Motion to Dismiss Plaintiffs’ First Amended Civil
Rights Complaint with Jury Demand Filed June 12, 2013 and

2

This Court notes that the deadline for Plaintiffs to file
their reply was November 29, 2013. [Dkt. no. 73.] This Court
has considered Plaintiffs’ reply, even though it was untimely,
because the delay did not prejudice Defendants. This Court,
however, does not condone the failure to comply with court rules
and deadlines, and this Court cautions Plaintiffs that the
failure to comply with court deadlines in the future may result
in sanctions, including the striking of untimely filings. This
Court recognizes that Plaintiffs are proceeding pro se and that
they live on Island of Hawai`i. Plaintiffs’ pro se status,
however, does not excuse them from complying with court rules and
deadlines. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)
(“Pro se litigants must follow the same rules of procedure that
govern other litigants.” (citations omitted)), overruled on other
grounds by Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).
Plaintiffs are therefore responsible for mailing each filing to
the district court far enough before the deadline so that the
Clerk’s Office will receive and file the document on or before
the filing deadline.
2

Granting Defendant Robert Korbel Davis Jr.’s Motion to Dismiss
Plaintiffs’ First Amended Civil Rights Complaint with Jury Demand
Filed June 12, 2013 (“10/7/13 Order”).

[Dkt. no. 66.3]

In the 10/7/13 Order, this Court ruled that:
Plaintiffs’ damages claims under 42 U.S.C. § 1983 against the
State Defendants fail because the State Defendants are not
“persons” for purposes of § 1983 actions for damages and because
the State Defendants are protected by sovereign immunity;
Plaintiffs’ § 1983 claims for injunctive relief against Defendant
Abercrombie, in this official capacity, fail because Plaintiffs
only seek retrospective relief; this Court cannot consider
Plaintiffs’ other claims against the State Defendants because of
the claim preclusion doctrine and the Rooker-Feldman doctrine;4
and Plaintiffs failed to plead plausible § 1983 claims against
Defendant Davis because the First Amended Complaint did not
present any allegations that would support a finding that he was
a state actor.

This Court therefore dismissed all of Plaintiffs’

claims against the State Defendants and Defendant Davis.

3

This

The 10/7/13 Order is also available at 2013 WL 5563923.

4

“[T]he Rooker–Feldman doctrine . . . generally prevents
this court from exercising appellate jurisdiction over
state-court decisions.” 10/7/13 Order, 2013 WL 5563923, at *6
(alterations in 10/7/13 Order) (citations and block quote format
omitted) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462,
482–86, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fid.
Trust Co., 263 U.S. 413, 415–16, 44 S. Ct. 149, 68 L. Ed. 362
(1923)).
3

Court dismissed the claims with prejudice because this Court
found that allowing Plaintiffs to amend the claims would be
futile.
In the Motion for Reconsideration, Plaintiffs argue
that this Court should not have dismissed their claims and, to
the extent that any of their claims were properly dismissed, this
Court should have dismissed the claims without prejudice.
STANDARD
In order to obtain reconsideration of the 10/7/13
Order, Plaintiffs’ 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 Donaldson v. Liberty Mut. Ins. Co., 947

F. Supp. 429, 430 (D. Hawai`i 1996); accord Tom v. GMAC Mortg.,
LLC, CIV. NO. 10–00653 SOM/BMK, 2011 WL 2712958, at *1 (D.
Hawai`I July 12, 2011) (citations omitted).

This district court

recognizes three grounds for granting reconsideration of an
order:

“(1) an intervening change in controlling law; (2) the

availability of new evidence; and (3) the need to correct clear
error or prevent manifest injustice.”

White v. Sabatino, 424 F.

Supp. 2d 1271, 1274 (D. Hawai`i 2006) (citing Mustafa v. Clark
County Sch. Dist., 157 F.3d 1169, 1178–79 (9th Cir. 1998)).

4

DISCUSSION
I.

Alleged Bias and Plaintiffs’ Disagreement with the Order
Plaintiffs’ primary arguments are that this Court has

misinterpreted the factual basis of their claims and failed to
follow the applicable case law regarding motions to dismiss.
Plaintiffs contend that this is evidence that this Court is
biased in favor of Defendants.

Plaintiffs argue that this Court

must recuse itself from the instant case.
28 U.S.C. § 4555 requires a judge to recuse herself
when “a reasonable person with knowledge of all the facts would
conclude that the judge’s impartiality might reasonably be
questioned.”

In re Marshall, 721 F.3d 1032, 1041 (9th Cir. 2013)

(citation and quotation marks omitted).
Proof of actual bias is not required under
§ 455(a). Instead, bias should “be evaluated on
an objective basis, so that what matters is not
the reality of bias or prejudice but its
appearance.” Liteky v. United States, 510 U.S.
540, 548, 114 S. Ct. 1147, 127 L. Ed. 2d 474
(1994). “It is well established that the recusal
inquiry must be made from the perspective of a
reasonable observer who is informed of all
surrounding facts and circumstances.” Cheney v.
U.S. Dist. Ct., 541 U.S. 913, 924, 124 S. Ct.
1391, 158 L. Ed. 2d 225 (2004) (emphasis and
internal quotation marks omitted).
Id.

In Marshall, as in the instant case, the party accusing the

5

Plaintiffs have not filed an affidavit stating “the facts
and the reasons for the belief that bias or prejudice exists[.]”
28 U.S.C. § 144. It was therefore unnecessary to assign another
judge to consider Plaintiffs’ request for recusal.
5

judge of bias relied solely upon adverse rulings and the judge’s
actions during the case.

The Ninth Circuit held that these did

not satisfy the standard for recusal.

Id. at 1042.

Insofar as Elaine points to Judge Bufford’s
judicial rulings as evidence of bias, such
“rulings alone almost never constitute a valid
basis for a bias or partiality motion.” Liteky,
510 U.S. at 555, 114 S. Ct. 1147. “Almost
invariably, they are proper grounds for appeal,
not for recusal.” Id. Moreover, “the judge’s
conduct during the proceedings should not, except
in the ‘rarest of circumstances’ form the sole
basis for recusal under § 455(a).” United States
v. Holland, 519 F.3d 909, 913–14 (9th Cir. 2008)
(quoting Liteky, 510 U.S. at 555, 114 S. Ct.
1147). “[O]pinions formed by the judge on the
basis of facts introduced or events occurring in
the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias
or partiality motion unless they display a
deep-seated favoritism or antagonism that would
make fair judgment impossible.” Liteky, 510 U.S.
at 555, 114 S. Ct. 1147.
Id. at 1041.

Insofar as Plaintiffs have only cited adverse

rulings against them as the alleged evidence of this Court’s
bias, this Court finds that recusal is not warranted in this
case.
Similarly, to the extent that Plaintiffs’ Motion for
Reconsideration merely indicates Plaintiffs’ disagreement with
this Court’s rulings, that is not sufficient grounds for
reconsideration of the 10/7/13 Order.

See White, 424 F. Supp. 2d

at 1274 (“Mere disagreement with a previous order is an
insufficient basis for reconsideration.” (citing Leong v. Hilton
Hotels Corp., 689 F. Supp. 1572 (D. Haw. 1988))).
6

Thus, to the

extent that Plaintiffs move for recusal and/or reconsideration on
the basis of their disagreement with this Court’s rulings in the
10/7/13 Order, Plaintiffs’ Motion for Reconsideration is DENIED.
II.

Other Arguments
In addition to arguing that this Court is biased,

Plaintiffs emphasize that this Court previously ordered mediation
in this case.
no. 38).]

[Order Directing Mediation, filed 7/24/13 (dkt.

Plaintiffs argue “[t]hat alone shows there are facts

to support a denial of State Defendants’ Motion to Dismiss.”
[Motion for Reconsideration at 6.]

This Court’s order directing

the parties to mediate “the issues related to the storage of
Plaintiffs’ belongings,” [Order Directing Mediation at 1,] was in
no way a substantive ruling on the merits of Plaintiffs’ claims.
This Court merely directed the parties to try to reach an
agreement that would allow Plaintiffs to recover their belongings
that were confiscated during the eviction because the State
Defendants’ continued possession of items was not necessary to
the on-going litigation of the legal issues in this case.

Thus,

the Order Directing Mediation is not relevant to the issues this
Court addressed in the 10/7/13 Order.
Plaintiffs also argue that it was manifestly unjust for
this Court to rule on the motions to dismiss before either this
Court or the magistrate judge ruled on Plaintiffs’ motion to join
Mike Yellen as a plaintiff.

[Filed 9/30/13 (dkt. no. 60).]

7

The

magistrate judge ultimately denied Plaintiffs’ motion to join
Mr. Yellen, finding that there was no basis for either a required
joinder pursuant to Fed. R. Civ. P. 19(a) or a permissive joinder
pursuant to Fed. R. Civ. P. 20(a).

[Order Denying Pltfs.’

Motion for Joinder of Mike Yellen as a Pltf. in the Instant Cause
of Action, Pursuant to FRCP, Rule 19, 20, and 21, filed 11/4/13
(dkt. no. 74).]

Thus, even if this Court had reserved ruling on

the motions to dismiss until the magistrate judge ruled upon the
motion to join Mr. Yellen, it would not have changed this Court’s
rulings on the motion to dismiss.
As to Defendant Davis’s motion to dismiss, Plaintiffs
argue that, because the 10/7/13 Order recognized that “it may be
possible [that there is] some set of hypothetical facts which
might render Defendant Davis a state actor in the radio tower
transactions,” 2013 WL 5563923, at *8, this Court should have
dismissed Plaintiffs’ claims against Defendant Davis without
prejudice.

In order to survive a motion to dismiss, a plaintiff

must allege “plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678

Plaintiffs’ First Amended Complaint did not plead

factual conduct that would allow this Court to draw the
reasonable inference that Defendant Davis was a state actor in
the radio tower transactions.

Neither Plaintiffs’ opposition to

8

Defendant Davis’s motion to dismiss nor Plaintiffs’ filings
associated with the instant Motion for Reconsideration indicate
that Plaintiffs can amend their First Amended Complaint to allege
facts that would support a reasonable inference that Defendant
Davis was a state actor in the radio tower transactions.

This

Court therefore concludes that Plaintiffs have not identified any
ground that would warrant reconsideration of this Court’s ruling
that allowing Plaintiffs leave to amend their First Amended
Complaint would be futile.
In summary, none of the arguments in Plaintiffs’ Motion
for Reconsideration raises an intervening change in controlling
law, the availability of new evidence, the need to correct clear
error, or the need to prevent manifest injustice.

To the extent

that Plaintiffs’ reply presents different variations of their
arguments, those arguments are not properly before this Court, as
Plaintiffs should have raised the arguments in the Motion for
Reconsideration itself.

See Local Rule LR7.4 (“Any argument

raised for the first time in the reply shall be disregarded.”).
This Court therefore finds that Plaintiffs have not identified
any ground that would warrant reconsideration of the 10/7/13
Order.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for
Reconsideration of This Court’s Order Granting State Defendants’

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and Defendant Robert Korbel Davis Jr.’s Motion to Dismiss, filed
October 25, 2013, is HEREBY DENIED.
This Court reminds Plaintiffs that they must serve
Defendants Hugh E. Gordon and Scott D. Parker with the First
Amended Complaint by December 20, 2013.

[Dkt. no. 69.]

This

Court CAUTIONS Plaintiffs that, if they fail to serve Defendants
Gordon and Parker with the First Amended Complaint by
December 20, 2013, this Court will dismiss Plaintiffs’ claims
against Defendants Gordon and Parker without prejudice.

See Fed.

R. Civ. P. 4(m).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 13, 2013.

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

FREDERICK H.K. BAKER, JR., ET AL. VS. STATE OF HAWAI`I, ETC., ET
AL; CIVIL NHO. 13-00159 LEK-KSC; ORDER DENYING PLAINTIFFS’ MOTION
FOR RECONSIDERATION OF THIS COURT’S ORDER GRANTING STATE
DEFENDANTS’ AND DEFENDANT ROBERT KORBEL DAVIS JR.’S MOTION TO
DISMISS

10