Ke Kailani Partners, LLC v. Ke Kailani Development LLC et al

Filing 37

ORDER: (1) DENYING KKD'S 27 MOTION FOR RECONSIDERATION OF THIS COURTS OCTOBER 24, 2013 23 ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND AND GRANTING AOAO'S JOINDER IN PLAINTIFF KE KAILANI PARTNERS, LLC'S MOTION FOR REMA ND; AND (2) GRANTING AOAO'S 32 JOINDER IN: PLAINTIFF KE KAILANI PARTNERS, LLC'S 31 OPPOSITION TO DEFENDANTS' KE KAILANI DEVELOPMENT LLC AND MICHAEL FUCHS' MOTION FOR RECONSIDERATION.. Signed by JUDGE LESLIE E. KOBAYASH I on 11/26/2013. ~ KKD's Motion for Reconsideration of this Courts October 24, 2013 Order Granting Plaintiff's Motion for Remand and Granting AOAO's Joinder in Plaintiff Ke Kailani Partners, LLC's Motion for Rema nd, filed November 7, 2013, is HEREBY DENIED as to KKD's request for reconsideration of this Court's decision to remand the instant action. With respect to KKD's request for reconsideration of this Courts award of attorneys fees and costs to Plaintiff, the Motion is HEREBY DENIED WITHOUT PREJUDICE. KKD may re-file a motion for consideration of the Court' s award of attorneys' fees and costs after the Court issues an order as to the amount of the award. Furthermore, AOAOs Joinder in the Opposition, filed November 25, 2013, is HEREBY GRANTED. (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
)
)
)
Plaintiff,
)
)
vs.
)
KE KAILANI DEVELOPMENT, LLC, )
)
a Hawaii limited liability
)
company; MICHAEL J. FUCHS,
)
Individually; DIRECTOR OF
)
FINANCE, REAL PROPERTY
)
DIVISION, COUNTY OF HAWAII;
)
KE KAILANI COMMUNITY
ASSOCIATION; THE ASSOCIATION )
)
OF VILLA OWNERS OF KE
)
KAILANI; MAUNA LANI RESORT
ASSOCIATION; JOHN DOES 1-50; )
)
JANE DOES 1-50, DOE
)
PARTNERSHIPS 1-50; DOE
)
CORPORATIONS 1-50; DOE
)
LIMITED LIABILITY COMPANIES
1-50; DOE ENTITIES 1-50; AND )
DOE GOVERNMENTAL UNITS 1-50, )
)
)
Defendants.
_____________________________ )
KE KAILANI PARTNERS, LLC,

CIVIL 13-00347 LEK-BMK

ORDER: (1) DENYING KKD’S MOTION FOR RECONSIDERATION OF
THIS COURT’S OCTOBER 24, 2013 ORDER GRANTING PLAINTIFF’S
MOTION FOR REMAND AND GRANTING AOAO’S JOINDER IN
PLAINTIFF KE KAILANI PARTNERS, LLC’S MOTION FOR REMAND;
AND (2) GRANTING AOAO’S JOINDER IN: PLAINTIFF KE KAILANI
PARTNERS, LLC’S OPPOSITION TO DEFENDANTS’ KE KAILANI
DEVELOPMENT LLC AND MICHAEL FUCHS’ MOTION FOR RECONSIDERATION
On November 7, 2013, Ke Kailani Development LLC’s (“Ke
Kailani”) and Michael Fuchs’ (“Fuchs,” collectively, “KKD”) filed
their Motion for Reconsideration of this Court’s October 24, 2013
Order Granting Plaintiff’s Motion for Remand and Granting AOAO’s
Joinder in Plaintiff Ke Kailani Partners, LLC’s Motion for Remand

(“Motion”).

[Dkt. no. 27.]

Plaintiff Ke Kailani Partners, LCC

(“Plaintiff”) filed its opposition to the Motion on November 21,
2013 (“Opposition”).

[Dkt. no. 31.]

On November 25, 2013, Mauna

Lani Resort Association, Ke Kailani Community Association, and
the Association of Villa Owners of Ke Kailani (collectively,
“AOAO”) filed their joinder in the Opposition (“Joinder”).
no. 32.]

[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, supporting and opposing memorandum, and the relevant
legal authority, KKD’s Motion is HEREBY DENIED, and AOAO’s
Joinder is HEREBY GRANTED, for the reasons set forth below.
BACKGROUND
The relevant factual and procedural background in this
case is set forth in this Court’s October 24, 2013 Order Granting
Plaintiff’s Motion for Remand and Granting AOAO’s Joinder in:
Plaintiff Ke Kailani Partners, LLC’s Motion for Remand (“10/24/13
Order”).

2013 WL 5773118.

In the 10/24/13 Order, this Court

concluded that, inter alia, it lacked subject matter jurisdiction
over the instant action.

Id. at *5.

The Court therefore granted

Plaintiff’s Motion for Remand, filed July 30, 2013, [dkt. no. 5,]
including Plaintiff’s request for attorneys’ fees and costs
pursuant to 28 U.S.C. § 1447(c).

Id. at *6-7.
2

KKD’s Motion seeks reconsideration of the 10/24/13
Order on the ground that it is based upon manifest errors of law.
[Motion at 4.]
DISCUSSION
I.

AOAO’s Joinder
As an initial matter, the Court will first consider

AOAO’s Joinder, filed pursuant to Fed. R. Civ. P. 7(b) and Local
Rule 7.9.

[Joinder at 4.]

Local Rule 7.9 states, in pertinent

part:
Except with leave of court based on good
cause, any substantive joinder in a motion or
opposition must be filed and served within seven
(7) days of the filing of the motion or opposition
joined in. “Substantive joinder” means a joinder
based on a memorandum supplementing the motion or
opposition joined in. If a party seeks the same
relief sought by movant for himself, herself, or
itself, the joinder shall clearly state that it
seeks such relief so that it is clear that the
joinder does not simply seek relief for the
original movant. A joinder of simple agreement
may be filed at any time.
Insofar as AOAO merely stated agreement with Plaintiff
that the Court should deny KKD’s Motion, this Court GRANTS AOAO’s
Joinder.

3

II.

KKD’s Motion
In order to obtain reconsideration of the 10/24/13

Order, KKD’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)).

4

Plaintiff asserts that the Court committed manifest
errors in finding:
(1) that [Roth v. CHA Hollywood Medical Center,
L.P., 720 F.3d 1121 (9th Cir. 2013),] was not
applicable, (2) that the relevant definition
included in the Federal Small Business Act was not
pled on the face of Plaintiff’s Complaint, (3)
that a stay pending appeal was not appropriate
because an appeal was barred by federal statute,
(4) that this Court was precluded from considering
ethical issues concerning the State Foreclosure
Judge, and (5) that an award of fees and costs in
favor of the Plaintiff was justified as there was
no reasonable basis for removal.
[Motion at 4.]
A.

Reconsideration of Remand Order
At the outset, the Court notes that 28 U.S.C. § 1447

provides, in relevant part:
(c) . . . If at any time before final judgment it
appears that the district court lacks subject
matter jurisdiction, the case shall be
remanded. . . .
(d) An order remanding a case to the State court
from which it was removed is not reviewable on
appeal or otherwise, except than an order
remanding a case to the State court from which it
was removed pursuant to section 1442 or 1443 of
this title shall be reviewable by appeal or
otherwise.
“‘[T]his language has been universally construed to preclude no
only appellate review but also reconsideration by the district
court.’”

In re Hawaii State Asbestos Cases, Civil No. 11-00400

LEK-KSC, 2011 WL 4749451, at *2 (D. Hawai`I Oct. 6, 2011)
(quoting Seedman v. U.S. Dist. Court for the Cent. Dist. Of Cal.,

5

837 F.2d 413, 414 (9th Cir. 1988)).

Furthermore, “‘[w]here the

order is based on one of the enumerated grounds, review is
unavailable no matter how plain the legal error in ordering the
remand.’”

Atl. Nat’l Trust LLC v. Mt. Hawley Ins. Co., 621 F.3d

931, 934 (9th Cir. 2010) (alteration in Atl. Nat’l Trust) (some
citations omitted) (quoting Briscoe v. Bell, 432 U.S. 404, 413
n.13, 97 S. Ct. 2428, 53 L. Ed. 2d 439 (1977)).
In the 10/24/13 Order, this Court concluded that it
lacked subject matter jurisdiction over the instant action.
Insofar as the lack of subject matter jurisdiction is an
enumerated ground set forth in § 1447(c), 2013 WL 5773118, at *5,
KKD’s argument that reconsideration is warranted to correct
manifest errors of law necessarily fails.

The Motion is

therefore DENIED to the extent that it seeks reconsideration of
the findings in the 10/24/13 Order that led to this Court’s
conclusion that the case should be remanded for lack of federal
subject matter jurisdiction.
B.

Reconsideration of Award of Attorneys’ Fees and Costs
The Motion also requests for reconsideration of this

Court’s award of attorneys’ fees and costs to Plaintiff under
§ 1447(c).

The Ninth Circuit has stated:
[A] party can appeal an award of sanctions or fees
on the ground that the removal was neither
frivolous nor filed for an improper purpose. A
ruling on the propriety of an award of sanctions
or fees is not the same thing as a direct ruling
on the propriety of a remand.
6

Gibson v. Chrysler Corp., 261 F.3d 927 (9th Cir. 2001) (citing
Lemos v. Fencl, 828 F.2d 616, 619 (9th Cir. 1987); Peabody v.
Maud Van Cortland Hill Schroll Trust, 892 F.2d 772, 775 (9th Cir.
1990)); see also Moore v. Permanente Med. Grp., Inc., 981 F.2d
443, 445 (9th Cir. 1992) (“[I]t is clear that an award of
attorney’s fees is a collateral matter over which a court
normally retains jurisdiction even after being divested of
jurisdiction on the merits.”).
The Court concludes that, although it lacked subject
matter jurisdiction over the instant action, it retains
jurisdiction over the matter of determining the amount of the
award of Plaintiff’s removal-related expenses.

Insofar as the

Court has yet to make this determination, the Court further
concludes that KKD’s Motion is premature with respect to this
issue.

Thus, KKD’s Motion for reconsideration of the award for

attorneys’ fees and costs is HEREBY DENIED WITHOUT PREJUDICE.
KKD may re-file a motion for reconsideration of the Court’s award
of attorneys’ fees and costs after it issues an order as to the
amount of the award.
CONCLUSION
On the basis of the foregoing, KKD’s Motion for
Reconsideration of this Court’s October 24, 2013 Order Granting
Plaintiff’s Motion for Remand and Granting AOAO’s Joinder in
Plaintiff Ke Kailani Partners, LLC’s Motion for Remand, filed

7

November 7, 2013, is HEREBY DENIED as to KKD’s request for
reconsideration of this Court’s decision to remand the instant
action.

With respect to KKD’s request for reconsideration of

this Court’s award of attorneys’ fees and costs to Plaintiff, the
Motion is HEREBY DENIED WITHOUT PREJUDICE.

KKD may re-file a

motion for consideration of the Court’s award of attorneys’ fees
and costs after the Court issues an order as to the amount of the
award.

Furthermore, AOAO’s Joinder in the Opposition, filed

November 25, 2013, is HEREBY GRANTED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 26, 2013.

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

KE KAILANI PARTNERS, LLC VS. KE KAILANI DEVELOPMENT COMPANY, LLC,
ET AL; CIVIL NO. 13-00347 LEK-BMK; ORDER: (1) DENYING KKD’S
MOTION FOR RECONSIDERATION OF THIS COURT’S OCTOBER 24, 2013 ORDER
GRANTING PLAINTIFF’S MOTION FOR REMAND AND GRANTING AOAO’S
JOINDER IN PLAINTIFF KE KAILANI PARTNERS, LLC’S MOTION FOR
REMAND; AND (2) GRANTING AOAO’S JOINDER IN: PLAINTIFF KE KAILANI
PARTNERS, LLC’S OPPOSITION TO DEFENDANTS’ KE KALANI DEVELOPMENT
LLC AND MICHAEL FUCHS’ MOTION FOR RECONSIDERATION

8