Barker et al v. Gottlieb et al

Filing 113

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF DISMISSAL OF PLAINTIFF'S THIRD AMENDED COMPLAINT re 104 Motion for Reconsideration. Signed by JUDGE LESLIE E. KOBAYASHI on 01/13/2015. There be ing no remaining claims or pending motions in this case, this Court DIRECTS the Clerk's Office to enter final judgment in favor of Defendants pursuant to the Order Granting Defendants' Motion to Dismiss Plaintiff's Third Amended Compla int, [filed 10/24/14 (dkt. no. 102 ),] and to close this case. (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
CHARLES BARKER III,

)
)
Plaintiff,
)
)
vs.
)
)
JOSHUA L. GOTTLIEB, JONATHAN )
DUBOWSKY, DONALD BORNEMAN,
)
CHARLES HALL, SCOTT HARRIS,
)
THE VALUE EXCHANGE ADVISORS, )
also known as/doing business )
as TVXA, GEMCO-PACIFIC ENERGY )
LLC, aka GPE and ROES 1-25,
)
)
Defendants.
)
_____________________________ )

CIVIL 13-00236 LEK-BMK

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
OF DISMISSAL OF PLAINTIFF’S THIRD AMENDED COMPLAINT
Before the Court is pro se Plaintiff
Charles Barker III’s (“Plaintiff”) Motion for Reconsideration of
Dismissal of Plaintiff’s Third Amended Complaint (“Motion for
Reconsideration”), filed on November 5, 2014.1

[Dkt. no. 104.]

Defendants Joshua L. Gottlieb, Jonathan Dubowsky,
Donald Borneman, Charles Hall, Scott Harris, the Value Exchange

1

Plaintiff’s filing also included a motion seeking the
recusal of this Court from the consideration of the Motion for
Reconsideration (“Motion to Recuse”). This Court bifurcated the
Motion to Recuse and the Motion for Reconsideration, [Entering
Order, filed 11/7/14 (dkt. no 105),] and construed the Motion to
Recuse as a motion pursuant to 28 U.S.C. § 455 [Entering Order,
filed 11/20/14 (dkt. no. 108) at 1]. On December 10, 2014, this
Court issued an order denying Plaintiff’s Motion to Recuse
(“Recusal Order”). [Dkt. no. 111.] The Recusal Order is
available at 2014 WL 6984219.

Advisors, and GEMCo-Pacific Energy LLC (collectively
“Defendants”) filed their memorandum in opposition on
December 19, 2014.

[Dkt. no. 112.]

The Court has considered the

instant Motion for Reconsideration as a non-hearing matter
pursuant to Rule LR7.2(e) 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, opposing

memorandum, and relevant legal authority, Plaintiff’s Motion for
Reconsideration is HEREBY DENIED for the reasons set forth below.
BACKGROUND
The parties and the Court are familiar with the factual
and procedural background of this case, and this Order will only
discuss the events that are relevant to the Motion for
Reconsideration.
On June 27, 2014, Plaintiff filed his Third Amended
Complaint.

[Dkt. no. 89.]

On July 15, 2014, Defendants filed

their Motion to Dismiss Plaintiff’s Third Amended Complaint
(“Motion to Dismiss”).

[Dkt. no. 94.]

On October 24, 2014, this

Court issued its order granting the Motion to Dismiss (“10/24/14
Dismissal Order”) and dismissing all of Plaintiff’s claims with
prejudice.

[Dkt. no. 102.2]

2

The 10/24/14 Dismissal Order is also available at 2014 WL
5460619.
2

In the instant motion, Plaintiff seeks reconsideration
of the 10/24/14 Dismissal Order.

Plaintiff argues that:

dismissal of his Third Amended Complaint violated his
constitutional right to a trial; Defendants refused to produce
discovery relevant to Plaintiff’s claims; Defendants and/or their
counsel committed perjury in order to avoid disclosing discovery;
and each of his claims is valid.
STANDARD
This Court has described the standard applicable to a
motion for reconsideration as follows:
A motion for reconsideration must
(1) “demonstrate reasons why the court should
reconsider its prior decision” and (2) “must set
forth facts or law of a strongly convincing nature
to induce the court to reverse its prior
decision.” Hele Ku KB, LLC v. BAC Home Loans
Servicing, LP, 873 F. Supp. 2d 1268, 1289 (D. Haw.
2012). The Ninth Circuit has held that
reconsideration is appropriate if (1) the district
court is presented with “newly discovered
evidence,” (2) the district court “committed clear
error or the initial decision was manifestly
unjust,” or (3) “if there is an intervening change
in controlling law.” Nunes v. Ashcroft, 375 F.3d
805, 807 (9th Cir. 2004).
Terry v. Hawaii Air Nat’l Guard, Civil No. 13–00295 LEK–RLP, 2014
WL 5089179, at *1 (D. Hawai`i Oct. 8, 2014) (citation omitted).

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DISCUSSION
I.

Right to Trial
Plaintiff argues that the dismissal of his case

violated his right to a trial, and he argues that:
Motions to dismiss, for summary judgment and
on the pleadings are not “efficient” disposals of
civil cases; in fact, they may actually consume
more of the Court’s time and attention than merely
ordering that discovery be conducted and completed
prior to the hearing in court, all relevant
evidence be then prepared for presentation, and a
real hearing with live testimony from witnesses
conducted on the essential matters of the case,
not procedural maneuvering and motions all
designed to avoid the hearing of the case on its
actual merits.
[Motion for Reconsideration at 6.]

Plaintiff cites to no case

law holding that: 1) every plaintiff in every case is entitled to
have a trial on the merits of his claims; or 2) resolving claims
through motions practice violates the United States Constitution.
This Court is not aware of any case supporting his positions.
Further, the Federal Rules of Civil Procedure expressly allow
parties to file, and courts to consider, motions to dismiss,
motions for judgment on the pleadings, and motions for summary
judgment.

See Fed. R. Civ. P. 12, 56.
This Court therefore DENIES Plaintiff’s Motion for

Reconsideration as to his argument that the dismissal of his case
violated his right to a trial.

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II.

Discovery
Plaintiff essentially argues that this Court should not

have dismissed his case without allowing him to conduct discovery
relevant to his claims.

He also argues that Defendants and/or

their counsel committed perjury to avoid producing discovery in
this case.
The parties have addressed Defendants’ alleged failure
to produce discovery and Plaintiff’s allegation of perjury in
previous motions filed in this case.

See Pltf.’s Motion for

Perjury Sanctions Against Defs. & Attorneys for Defs. (“Perjury
Motion”), filed 2/26/14 (dkt. no. 71); Pltf.’s Motion to Compel
Production of Documents & to Answer Interrogatories (“Motion to
Compel”), filed 3/6/14 (dkt. no. 73); Defs.’ Counter Motion for
Protective Order Staying Discovery (“Motion for Protective
Order”), filed 3/21/14 (dkt. no. 76).

Defendants’ Motion for

Protective Order sought a protective order staying further
discovery until this Court ruled on their January 23, 2014 motion
to dismiss Plaintiff’s Second Amended Complaint, which Plaintiff
filed on January 6, 2014.3

[Dkt. nos. 53, 59.]

On April 16, 2014, the magistrate judge issued his
findings and recommendation to deny Plaintiff’s Perjury Motion

3

On May 28, 2014, this Court issued an order granting in
part and denying in part Defendants’ motion to dismiss the Second
Amended Complaint and giving Plaintiff leave to file a Third
Amended Complaint. [Dkt. no. 88.]
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and Plaintiff’s Motion to Compel, and to grant Defendants’ Motion
for Protective Order (“4/16/14 F&R”).

[Dkt. no. 83.]

This Court

issued an order adopting the 4/16/14 F&R on May 27, 2014
(“5/27/14 Order”).

[Dkt. no. 87.]

Thus, since the time of that

order, discovery has been stayed.
This Court notes that Plaintiff neither objected to the
4/16/14 F&R nor moved for reconsideration of the 5/27/14 Order.
To the extent that Plaintiff now argues that he should have been
able to conduct discovery and that this Court should have acted
upon the alleged perjury, his current Motion for Reconsideration
contends that the 5/27/14 Order is based on a manifest error of
law or fact.

This Court therefore need not consider Plaintiff’s

request for reconsideration of the 5/27/14 Order because it is
untimely.

See Local Rule LR60.1 (stating that motions for

reconsideration based on a manifest error of law or fact “must be
filed and served not more than fourteen (14) days after the
court’s written order is filed”).

Further, even if it did

consider Plaintiff’s current request to reconsider the 5/27/14
Order, this Court would still reject the arguments in Plaintiff’s
Perjury Motion and Motion to Compel, and this Court would still
conclude that Defendants were entitled to a protective order
staying all discovery unless and until Plaintiff’s claims
survived the motion to dismiss stage.

6

This Court therefore DENIES Plaintiff’s Motion for
Reconsideration as to his argument that this Court should not
have dismissed his case before allowing him to conduct discovery,
and as to his allegation that Defendants and/or their counsel
committed perjury in order to avoid responding to discovery.4
III. Validity of Plaintiff’s Claims
The final argument in Plaintiff’s Motion for
Reconsideration is that this Court should not have granted
Defendants’ Motion to Dismiss because all of Plaintiff’s claims
were valid.

All of Plaintiff’s points related to this argument

are points that he raised, or could have raised, in his original
response to the Motion to Dismiss.

See Motion for

Reconsideration at 9 (listing, in the section titled “RESPONSE TO
DEFENDANTS MOTION TO DISMISS,” arguments “presented in the order
and in concert with the headings and paragraph numbering as they
appear in the Defendants [sic] Motion to Dismiss”).
This Court will not grant reconsideration based on
evidence or legal arguments that the party seeking

4

This Court also notes that Count XVII of Plaintiff’s Third
Amended Complaint alleged a substantive claim for perjury.
[Third Amended Complaint at ¶¶ 141-46.] The 10/24/14 Dismissal
Order dismissed that claim with prejudice because Plaintiff did
not have leave to add new claims in the Third Amended Complaint.
2014 WL 5460619, at *2. The order, however, also stated:
“Although the dismissal is without leave to amend in the instant
case, this Order is not a ruling on the merits of those claims
and does not preclude Plaintiff from bringing Amended Counts XVI
and XVII in a separate action.” Id.
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reconsideration could have raised in connection with the original
motion.

Hawaii Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d

1253, 1269 (D. Hawai`i 2005) (some citations omitted) (citing
Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th
Cir. 2000)).

Further, Plaintiff’s argument that all of his

claims are valid merely expresses his disagreement with this
Court’s rulings.

“Mere disagreement with a previous order is an

insufficient basis for reconsideration.”

White v. Sabatino, 424

F. Supp. 2d 1271, 1274 (D. Hawai`i 2006) (citation omitted).
This Court therefore DENIES Plaintiff’s Motion for
Reconsideration as to his argument regarding the validity of his
claims.
IV.

Summary
Plaintiff has not presented either newly discovered

evidence or an intervening change in the law since the 10/24/14
Dismissal Order.

Further, he has failed to establish either that

this Court committed clear error in the 10/24/14 Dismissal Order
or that the order was manifestly unjust.

This Court therefore

CONCLUDES that Plaintiff has not established any ground that
warrants reconsideration of the 10/24/14 Dismissal Order.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Reconsideration of Dismissal of Plaintiff’s Third Amended
Complaint, filed November 5, 2014, is HEREBY DENIED.
8

There being no remaining claims or pending motions in
this case, this Court DIRECTS the Clerk’s Office to enter final
judgment in favor of Defendants pursuant to the Order Granting
Defendants’ Motion to Dismiss Plaintiff’s Third Amended
Complaint, [filed 10/24/14 (dkt. no. 102),] and to close this
case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 13, 2015.

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

CHARLES BARKER, III VS. JOSHUA L. GOTTLIEB, ET AL; CIVIL 13-00236
LEK-BMK; ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF
DISMISSAL OF PLAINTIFF’S THIRD AMENDED COMPLAINT

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