Ogeone v. United States of America

Filing 42

ORDER DENYING MOTION FOR RECONSIDERATION re 41 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/31/13. (emt, )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). Galina Ogeone served by first class mail at the address of record on July 31, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GALINA OGEONE,

)
)
Plaintiff,
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vs.
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UNITED STATES OF AMERICA,
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Defendant.
_____________________________ )

CIVIL NO. 13-00166 SOM/RLP

ORDER DENYING MOTION OF RECONSIDERATION
Plaintiff Galina Ogeone seeks reconsideration of the
Order Adopting Findings and Recommendation.

Reconsideration is

denied.
The court construes Ogeone's reconsideration motion as
brought under Local Rule 60.1, which, unlike Rules 59(e) and
60(b) of the Federal Rules of Civil Procedure, applies to motions
to reconsider orders other than final judgments.

Local Rule 60.1

provides for reconsideration based on the discovery of "new
material facts not previously available," an intervening change
in law, or manifest error or law or fact.

Ogeone does not

establish that reconsideration is warranted on any of those
grounds.
First, Ogeone says reconsideration is warranted based
on what she terms her discovery of new evidence.

The new

evidence she points to is the "absence of Plaintiff's motion of
Removal in the Court's Record."

This court was not relying on

the existence of a removal motion by Ogeone.

In the first place,

removal is typically accompanied by the filing of a notice of
removal, not by a motion requiring a ruling by a court.
U.S.C. § 1446 (referring to a "notice of removal”).

See 28

In the

second place, removal is an action taken by a defendant, not a
plaintiff.

Id. § 1446(a) (referring to "[a] defendant or

defendants desiring to remove any civil action from a State
court").

The reason is clear:

a plaintiff determines what court

to file an action in and so has no need to remove a case to a
different court.

In the third place, the absence of a motion by

Ogeone herself is hardly something that Ogeone can be said to
have newly discovered.

Surely she knew before receiving this

court's ruling what she had filed and not filed.
Second, Ogeone says that the court overlooked the
absence of a defense request or motion of removal.

No request

or motion is required for removal, only a notice.

The very first

document in the docket sheet bears the title "Notice of Removal
of Civil Action."

That document begins:

"Comes now, Defendant

Dentist W. Ruth Yang, by and through her undersigned attorney,
Florence T. Nakakuni, the United States Attorney for the District
of Hawaii and Assistant United States Attorney Harry Yee, and
sets forth the following facts on their behalf . . . ."
No. 1.

ECF

Attached to the Notice of Removal of Civil Action is a

Certificate of Service stating that a copy of the Notice of
Removal of Civil Action was mailed to Ogeone.

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Third, Ogeone says that, because she objected to
everything in the Magistrate Judge's Findings and Recommendation,
the court could not accept any part of that document.

Nothing in

any statute or rule prohibits a district judge from overruling an
objection.

In fact, Local Rule 74.2 specifically states that a

district judge "may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge."
Determining that Ogeone does not establish that
reconsideration is warranted, the court denies her motion.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 31, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Ogeone v. United States; CIVIL NO. 13-00166 SOM/RLP, ORDER
DENYING MOTION OF RECONSIDERATION

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