Barker et al v. Gottlieb et al

Filing 122

ORDER DENYING PLAINTIFF'S SECOND MOTION FOR RECONSIDERATION OF DISMISSAL OF PLAINTIFF'S THIRD AMENDED COMPLAINT re 115 Motion for Reconsideration re 113 Order re 121 Exhibits. Signed by JUDGE LESLIE E. KOBAYAS HI on 02/27/2015. (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
)
)
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.
_____________________________ )
CHARLES BARKER III,

CIVIL 13-00236 LEK-BMK

ORDER DENYING PLAINTIFF’S SECOND MOTION FOR RECONSIDERATION
OF DISMISSAL OF PLAINTIFF’S THIRD AMENDED COMPLAINT
Before the Court is pro se Plaintiff
Charles Barker III’s (“Plaintiff”) Second Motion for
Reconsideration of Dismissal of Plaintiff’s Third Amended
Complaint (“Motion”), filed on February 6, 2015.

[Dkt. no. 115.]

On February 26, 2015, Plaintiff also filed exhibits in support of
his Motion.

[Dkt. no. 121.]

The Court has considered the

instant Motion 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 and the relevant legal authority,
Plaintiff’s Motion 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 instant Motion.
On October 24, 2014, this Court issued its Order
Granting Defendants’ Motion to Dismiss Plaintiff’s Third Amended
Complaint (“10/24/14 Dismissal Order”),1 which dismissed all of
Plaintiff’s claims with prejudice.

[Dkt. no. 102.2]

On

January 14, 2015, this Court issued its Order Denying Plaintiff’s
Motion for Reconsideration of Dismissal of Plaintiff’s Third
Amended Complaint (“1/14/15 Reconsideration Order”).
113.3]

Judgment was also entered on January 14, 2015.

[Dkt. no.
[Dkt. no.

114.]
In the instant Motion, Plaintiff asks this Court to
reconsider the dismissal of his Third Amended Complaint in light
of the following events that occurred during the period between
the filing of the 10/24/14 Dismissal Order and the 1/14/15
Reconsideration Order:

1

The defendants in this action are: Joshua L. Gottlieb,
Jonathan Dubowsky, Donald Borneman, Charles Hall, Scott Harris,
the Value Exchange Advisors, and GEMCo-Pacific Energy LLC
(collectively “Defendants”).
2

The 10/24/14 Dismissal Order is also available at 2014 WL
5460619.
3

The 1/14/15 Reconsideration Order is also available at
2015 WL 181776.
2

1. The Defendants have closed the purchase of
the real property known as “Haina Mill” [(“the
Haina Mill Property”)], . . . on December 19,
2014, for which property purchase transaction
[Plaintiff] was irrefutably the procuring cause,
and which property is one of the two major
components of the subject litigation.
2. The Defendants formed a company called
“Ohanasphere Enterprises LLC” [(“Ohanasphere”)] on
November 14, 2014, and a videotape . . . of a
community meeting conducted by defendant Jonathan
Dubowsky in January 2015 has revealed that
Ohanasphere is a direct outgrowth and inextricably
related to the former business Kama`aina Earth
Products LLC, and that this business is tied both
to the Haina Mill real property and the topsoil
resource located on the 20 ace [sic] parcel (one
of six), for which [Plaintiff] was irrefutably the
procuring cause to all Defendants.
3. Concealment by the Defendants and their
attorneys of these material facts, evidence and
events, which are undeniably relevant and critical
to the decision that was under active
consideration by this Court during November 2014,
December 2014 and January 2015.
[Motion at 2.]
STANDARD
This Court could construe Plaintiff’s Motion as seeking
relief pursuant to either Fed. R. Civ. P. 59(e) or 60(b)(2).
Rule 59(e) states: “A motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the judgment.”
Rule 60(b) states, in pertinent part:
On motion and just terms, the court may relieve a
party or its legal representative from a final
judgment, order, or proceeding for the following
reasons:
. . . .
3

(2) newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b)[.]
A motion brought pursuant to Rule 60(b)(2) must be filed “within
a reasonable time - and . . . no more than a year after the entry
of the judgment or order or the date of the proceeding.”
Civ. P. 60(c)(1).

Fed. R.

This district court has stated:

A motion for reconsideration filed within
twenty-eight days of entry of judgment is
considered under Federal Rule of Civil Procedure
59(e); a later-filed motion is considered under
Rule 60(b). United States v. Comprehensive Drug
Testing, Inc., 513 F.3d 1085, 1098 (9th Cir. 2008)
(quoting Am. Ironworks & Erectors, Inc. v. N. Am.
Constr. Corp., 248 F.3d 892, 898–99 (9th Cir.
2001)). . . .
Rule 59(e) authorizes a court to alter or
amend judgment. “A district court has
considerable discretion when considering a motion
to amend a judgment under Rule 59(e).” Turner v.
Burlington N. Santa Fe R.R. Co., 338 F.3d 1058,
1063 (9th Cir. 2003). The Ninth Circuit set forth
the following grounds justifying reconsideration
under Rule 59(e):
(1) if such motion is necessary to correct
manifest errors of law or fact upon which the
judgment rests; (2) if such motion is
necessary to present newly discovered or
previously unavailable evidence; (3) if such
motion is necessary to prevent manifest
injustice: or (4) if the amendment is
justified by an intervening change in
controlling law.
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111
(9th Cir. 2011). [“]There may also be other,
highly unusual, circumstances warranting
reconsideration.” Sch. Dist. No. 1J, Multnomah
Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
Cir. 1993) (citation omitted); see also Turner,
4

338 F.3d at 1063; Circuit City Stores, Inc. v.
Mantor, 417 F.3d 1060, 1063–64 n.1 (9th Cir.
2005); In re Syncor ERISA Litig., 516 F.3d 1095,
1100 (9th Cir. 2008).
Corless v. Zuffa, LLC, Civil No. 12–00689 JMS–RLP, 2013 WL
1856306, at *1 (D. Hawai`i May 1, 2013) (footnote omitted).
In the instant case, Plaintiff filed the instant Motion
on February 6, 2015, which was within twenty-eight days of the
entry of the Judgment on January 14, 2015.

This Court therefore

analyzes Plaintiff’s Motion pursuant to Rule 59(e), although this
Court notes that its analysis and ruling would be the same even
if it analyzed the Motion pursuant to Rule 60(b)(2).

See

Corless, 2013 WL 1856306, at *1 & n.1 (construing the plaintiff’s
motion, brought pursuant to Rule 60(b)(2), as a Rule 59(e) motion
and noting that, under either rule, “the court’s analysis and
ruling would be the same”).
DISCUSSION
Plaintiff’s Motion contends that he is entitled to
relief from the Judgment because: 1) Defendants finally completed
the purchase of the Haina Mill Property, and they could not have
done so without his efforts; and 2) Plaintiff had an ownership
interest in Kama`aina Earth Products LLC, an entity involved in a
topsoil resource project on the Haina Mill Property (“KAEP
Topsoil Project”), and Defendants created Ohanasphere to pursue
the project without Plaintiff.

Plaintiff essentially contends

that, in light of these events, he is entitled to pursue his
5

claims seeking recovery for his share of any profits generated
from the purchase of the Haina Mill Property and the KAEP Topsoil
Project.
This Court has previously rejected Plaintiff’s
arguments that he is entitled to recover damages based on the
work that he did in connection with the projects at issue in this
case.

Regarding Plaintiff’s original Complaint, filed May 15,

2013, this Court stated:
even viewing the allegations in the Complaint in
the light most favorable to Plaintiff, all of the
state law claims appear to be based upon
activities that Plaintiff was involved in on
behalf of the LLCs. Neither the allegations in
the Complaint nor the exhibits attached thereto
indicate that Plaintiff was acting on his own
behalf in the events at issue in this case. Thus,
the injuries which allegedly resulted from
Defendants’ actions or inactions were injuries to
the LLCs, not to Plaintiff individually. This
Court therefore concludes that the state law
claims in the Complaint fail to state plausible
claims for relief because: 1) to the extent that
Plaintiff is trying to prosecute claims which
belong to the LLCs, Plaintiff lacks standing to do
so; and 2) to the extent that Plaintiff is trying
to prosecute claims which belong to him
individually, the claims are not sufficiently
pled.
[Order Granting in Part and Denying in Part Defs.’ Motion for
Judgment on the Pleadings, filed 10/16/13 (dkt. no. 44)
(“10/16/13 Pleadings Order”), at 16-17 (footnote omitted).4]

In

the 10/16/13 Pleadings Order, “the LLCs” referred to Cogentech-

4

The 10/16/13 Pleadings Order is also available at 978 F.
Supp. 2d 1168.
6

Pacific, LLC (“CPL”) and Haleakala Holdings LLC (“HCL”), entities
in which Plaintiff was a principal.

978 F. Supp. 2d at 1175.

Plaintiff failed to cure these standing defects in his
Second Amended Complaint,5 but this Court granted Plaintiff leave
to amend because: “he may be able to allege a plausible basis for
standing because he has a distributional interest in the assets
of [the] LLCs.

Plaintiff, however, must allege how Defendants’

allegedly wrongful acts resulted in the decrease in Plaintiff’s
distributional share of the LLCs’ assets.”

[Order Granting in

Part and Denying in Part Defs.’ Motion to Dismiss Second Amended
Complaint, filed 5/28/14 (dkt. no. 88) (“5/28/14 Dismissal
Order”), at 21-22 (footnote and citation omitted).6]

The 5/28/14

Dismissal Order also dismissed with prejudice Plaintiff’s claims
that Defendants stole the intellectual property and work product
that he created regarding the projects at issue in this case.
This Court pointed out that Plaintiff did not allege that
Defendants agreed to compensate him individually for his work on
the projects, and this Court concluded that Hawai`i law does not
recognize a conversion claim based on the taking of intellectual

5

Plaintiff filed his Amended Complaint on November 13,
2013. [Dkt. no. 46.] The Court granted Plaintiff leave to file
the Second Amended Complaint after it denied his request to take
judicial notice of the exhibits he submitted previously in this
action and to treat them as the exhibits to his Amended
Complaint. [Dkt. no. 49.]
6

The 5/28/14 Dismissal Order is also available at 23 F.
Supp. 3d 1152.
7

property or work product.

5/28/14 Dismissal Order, 23 F. Supp.

3d at 1167-69.
Although Plaintiff attempted to cure the defects in his
standing allegations by including allegations in the Third
Amended Complaint regarding his distributional interests in the
LLCs, this Court ruled that the Third Amended Complaint did not
identify how Defendants’ wrongful conduct in the remaining claims
resulted in the alleged decrease of Plaintiff’s distributional
interest in the Relevant LLCs.7

Plaintiff merely pled conclusory

allegations that Defendants’ conduct harmed his distributional
interests in the Relevant LLCs.

This Court therefore dismissed

Plaintiff’s claims regarding losses suffered by the Relevant LLCs
with prejudice.

10/24/14 Dismissal Order, 2014 WL 5460619, at

*3-5.
In light of the foregoing analysis, the new evidence
presented in the Motion - the completion of the purchase of the
Haina Mill Property and the formation of Ohanasphere to continue
the work of KAEP - does not alter this Court’s rulings regarding
Plaintiff’s claims based on losses suffered by the Relevant LLCs
and his claims alleging theft of his intellectual property and
work product.

Further, because those events have no effect on

7

Plaintiff refers to the following entities as “the
Relevant LLCs”: CPL; Honoka`a Energy LLC; KAEP; Kuleana
Management LLC; Kuleana Energy; Mama Makoaleo Power LLC; Mana
Makoaleo Bioenergy LLC; Moku Nui BioEnergy LLC; and Moku Nui
Power Co. LLC. [Third Amended Complaint at pgs. 6-7.]
8

this Court’s rulings, it is irrelevant that Defendants and their
counsel allegedly concealed these events from Plaintiff.

This

Court therefore CONCLUDES that Plaintiff has failed to identify
any ground which warrants reconsideration of this Court’s rulings
pursuant to Rule 59(e).
CONCLUSION
On the basis of the foregoing, Plaintiff’s Second
Motion for Reconsideration of Dismissal of Plaintiff’s Third
Amended Complaint, filed February 6, 2015, which this Court has
construed as a motion for reconsideration pursuant to Fed. R.
Civ. P. 59(e), is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 27, 2015.

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

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

9