Andrade v. US Bank National Association

Filing 24

ORDER DENYING PLAINTIFF'S MOTION TO RECONSIDER ORDER DISMISSING CLAIMS WITH PREJUDICE re: 19 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/28/2013. (afc) CERTIFICATE OF SERVICEParticipants registered to re ceive 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
MILLICENT M. ANDRADE,

)
)
Plaintiff,
)
)
vs.
)
)
US BANK NATIONAL ASSOCIATION, )
as Trustee for the Structured )
Asset Investment Loan Trust, )
2005-HE3,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 13-00255 LEK-KSC

ORDER DENYING PLAINTIFF’S MOTION TO RECONSIDER
ORDER DISMISSING CLAIMS WITH PREJUDICE
Before the Court is pro se Plaintiff
Millicent Andrade’s (“Plaintiff”) Motion to Reconsider Order
Dismissing Claims with Prejudice and Motion for Leave to Amend
Complaint (“Motion”),1 filed on September 16, 2013.
19.]

[Dkt. no.

Defendant US Bank National Association, as Trustee for the

Structured Asset Investment Loan Trust, 2005-HE3 (“Defendant”)
filed its memorandum in opposition on September 19, 2013, and
Plaintiff filed her reply on October 18, 2013.

[Dkt. nos. 22,

23.]

1

This Court issued an entering order referring the portion
of the Motion regarding Plaintiff’s motion to amend complaint to
the magistrate judge for disposition. [EO: Regarding Plaintiff’s
Motion to Reconsider Order Dismissing Claims With Prejudice and
Motion for Leave to Amend Complaint, filed 9/17/13 (dkt. no.
20).]

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, supporting and opposing memoranda, and the relevant legal
authority, Plaintiff’s Motion is HEREBY DENIED for the reasons
set forth below.
BACKGROUND
The relevant factual and procedural background in this
case is set forth in this Court’s August 27, 2013 Order Granting
Defendant’s Motion to Dismiss Complaint and Expunge Lis Pendens
and Granting Plaintiff’s Motion to Take Judicial Notice (“8/27/13
Order”).

2013 WL 4552186.

In the 8/27/13 Order, this Court

granted Defendant’s Motion to Dismiss Complaint and Expunge Lis
Pendens (“Defendant’s Motion”), filed May 28, 2013, [dkt. no. 5,]
and dismissed Plaintiff’s claim for wrongful foreclosure (“Count
I”) with prejudice.

2013 WL 4552186, at *14.

Plaintiff’s Motion seeks reconsideration of the 8/27/13
Order with respect to the dismissal of Count I with prejudice, in
light of the California Court of Appeal’s recent decision in
Glaski v. Bank of America, National Ass’n, 160 Cal. Rptr. 3d 449
(Cal. Ct. App. 2013).

2

DISCUSSION
In order to obtain reconsideration of the 8/27/13
Order, Plaintiff’s Motion “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)).
“Whether or not to grant reconsideration[,]” however,
“is committed to the sound discretion of the court.”

Navajo

Nation v. Confederated Tribes & Bands of the Yakama Indian
Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enter.,
Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000)).
“As long as a district court has jurisdiction over the case, then
it possesses the inherent procedural power to reconsider,

3

rescind, or modify an interlocutory order for cause seen by it to
be sufficient.”

City of Los Angeles, Harbor Div. v. Santa Monica

Baykeeper, 254 F.3d 882, 889 (9th Cir. 2001) (internal quotation
marks omitted).
Plaintiff’s Motion does not satisfy any of the three
grounds for granting reconsideration of an order.

Plaintiff’s

Motion seeks reconsideration of the 8/27/13 Order on the ground
that Glaski provides new legal support for Count I.
2.]

[Motion at

Even assuming arguendo that Glaski provides such support, it

does not present an intervening change in controlling law because
a decision by a California state court is not controlling law for
a federal district court in Hawai`i.

Further, the Motion

provides no new evidence previously unavailable, and no need to
correct clear or manifest error in law or fact to prevent
manifest injustice.
Plaintiff also cites a number of cases that she
contends are consistent with Glaski.

[Id. at 5 (some citations

omitted) (citing Wells Fargo Bank, N.A. v. Erbobo, No.
31648/2009, 39 Misc.3d 1220(A) (N.Y. Sup. Ct. Apr. 29, 2013);
Junger v Bank of America, N.A., 2012 WL 603262 at *3 (C.D. Cal.
2012); Vogan v. Wells Fargo Bank, N.A., 2011 WL 5826016 (E.D.
Cal. 2011)).]

Plaintiff, however, could have relied on these

cases in her pleadings or at the hearing on Defendant’s Motion.
See Haw. Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253,

4

1269 (D. Hawai`i 2005) (“reconsideration may not be based on
evidence and legal arguments that could have been presented at
the time of the challenged decision”).
To the extent that Plaintiff’s reply presents different
variations of Plaintiff’s arguments, those arguments are also not
properly before this Court, as Plaintiff should have raised the
arguments in the Motion itself.

See Local Rule LR7.4 (“Any

argument raised for the first time in the reply shall be
disregarded.”).

This Court therefore FINDS that Plaintiff has

not presented any ground warranting reconsideration of the
8/27/13 Order’s dismissal of Count I with prejudice.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion to
Reconsider Order Dismissing Claims with Prejudice, filed
September 16, 2013, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 28, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MILLICENT ANDRADE VS. US NATIONAL BANK ASSOCIATION, ETC.; CIVIL
NO. 13-00255 LEK-KSC; ORDER DENYING PLAINTIFF’S MOTION TO
RECONSIDER ORDER DISMISSING CLAIMS WITH PREJUDICE

5