Tagupa v. VIPDesk, Inc. et al
Filing
131
ORDER DENYING PLAINTIFF'S MOTION FOR CLARIFICATION AND/OR MODIFICATION OF THE COURT'S ORDER DATED AUGUST 28, 2015 BASED ON NEW EVIDENCE, DOC. NO. 124 re 124 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 1/19/2016. (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). 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
LOTTIE K. TAGUPA,
)
)
Plaintiff,
)
)
vs.
)
)
VIPDESK, INC.,
)
)
Defendant.
)
______________________________ )
CIV. NO. 13-00428 JMS-KSC
ORDER DENYING PLAINTIFF’S
MOTION FOR CLARIFICATION
AND/OR MODIFICATION OF THE
COURT’S ORDER DATED AUGUST
28, 2015 BASED ON NEW
EVIDENCE, DOC. NO. 124
ORDER DENYING PLAINTIFF’S MOTION FOR CLARIFICATION
AND/OR MODIFICATION OF THE COURT’S ORDER DATED AUGUST
28, 2015 BASED ON NEW EVIDENCE, DOC. NO. 124
I. INTRODUCTION
On August 28, 2015, the court granted summary judgment in favor of
Defendant VIPdesk, Inc. (“Defendant” or “VIPdesk”) as to Plaintiff Lottie K.
Tagupa’s (“Plaintiff” or “Tagupa”) claim for violating the Hawaii Whistleblower
Protection Act (“HWPA”), but denied summary judgment as to most aspects of
Tagupa’s claim for violating the Fair Labor Standards Act (“FLSA”). See Doc.
No. 76 (“August 28 Order”), published at Tagupa v. VIPdesk, Inc., ___ F. Supp.
3d ___, 2015 WL 5116943 (D. Haw. Aug. 28, 2015).
On January 7, 2016 -- less than two weeks before the then-scheduled
trial of the remaining FLSA claim,1 and over four months after the August 28
Order -- Tagupa moved for reconsideration of the August 28 Order, seeking to
revive her HWPA claim. See Doc. No. 124 (“Plaintiff’s Motion for Clarification
And/Or Modification of the Court’s Order dated August 28, 2015 based on New
Evidence”) (“Motion for Reconsideration”). She bases the Motion for
Reconsideration on “new evidence” -- deposition testimony of her former direct
supervisor, Eleu Ornellas (“Ornellas”), taken on December 9, 2015. Id. at 4. For
the following reasons, the Motion for Reconsideration is DENIED.
II. BACKGROUND
Because the Motion for Reconsideration is limited to Plaintiff’s
HWPA claim, the court focuses only on the background relevant to that claim.
The August 28 Order granted summary judgment in favor of VIPdesk
on Tagupa’s HWPA claim because, applying Crosby v. State Department of
Budget and Finance, 76 Haw. 332, 876 P.2d 1300 (1994), it was undisputed that
VIPdesk would have terminated Tagupa even in the absence of her protected
activity. Tagupa, 2015 WL 5116943, at *11. The court reasoned in part that
Tagupa has not disputed that she received multiple poor
performance reviews -- [VIPdesk] gave her twenty nine
1
On January 14, 2016, the trial date was continued from January 20, 2016 until March
29, 2016. Doc. No. 129.
2
separate written negative performance evaluations,
reviews, or warnings about her poor performance before
it terminated her. These include twenty incidents that
occurred before March 2, 2011, which is when Tagupa
first engaged in “protected activity,” that, at minimum,
establish that Tagupa had a poor work history.
Id. (emphasis and citations to record omitted).
The court cited to multiple documented incidents of poor
performance in 2008, 2009 and 2010. Id. The court also focused on more recent
incidents and warnings from February 24, 2011 and March 2, 2011, regarding
Tagupa’s failure to meet quality standards and a specific incident where, instead of
accepting counseling or coaching, Tagupa yelled and screamed at a supervisor
“basically telling [him] that VIPdesk is horrific and that [Tagupa] is constantly
fighting off creditors and [it’s] all [the supervisor’s] fault.” Id.
The August 28 Order also carefully examined “[a] March 2, 2011
‘final written warning’ based on six months of quality performance scores that did
not meet company standards, and [discussed] behavior perceived as insubordinate
and in violation of company policy.” Id. at *12. And the court relied extensively
on VIPdesk’s September 8, 2011 termination letter, which explained that Tagupa
was terminated “[b]ased on the instances of non-compliance with VIPdesk policies
and Lottie’s overall performance in the Concierge position.” Id.
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In support of her Motion for Reconsideration, Tagupa cites to
excerpts of a December 9, 2015 deposition of Ornellas, where Ornellas testified or
acknowledged that (1) “unexcused absences” are “wiped out” quarterly;
(2) Tagupa was not terminated in 2009 because “she was always able to go right
up to the wire with the wipeouts and then start again;” and (3) when discussing
whether a 2011 “final written warning” was to be given to Tagupa, a previous
final written warning “would not have come into play” because “[i]t was too far
back.” Doc. No. 124-3 at 3-5, Ornellas Dep. at 101, 111, 119-20. Tagupa argues
that this newly discovered evidence “proves that [she] was not fired for twentynine disciplinary actions as the [August 28] Order in this case incorrectly states”
and “creates a question of fact as to Defendant’s true reason for firing Plaintiff
after six years of wiping the slate clean time and time again.” Doc. No. 124, Mot.
at 6.
III. STANDARD OF REVIEW
Local Rule 60.1 allows a party to file a motion for reconsideration of
an interlocutory order. Reconsideration is permitted only where there is
“(a) Discovery of new material facts not previously available; (b) Intervening
change in law; [or] (c) Manifest error of law or fact.” LR 60.1; see Sierra Club,
Hawaii Chapter v. City & Cty. of Honolulu, 486 F. Supp. 2d 1185, 1188 (D. Haw.
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2007). “There may also be other, highly unusual, circumstances warranting
reconsideration.” School Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5
F.3d 1255, 1263 (9th Cir. 1993).
“To support [reconsideration under LR 60.1(a), a movant] must show
not only that the evidence was newly discovered or unknown, but also that they
could not with reasonable diligence have discovered and produced such evidence
earlier.” Martin v. ABM Parking Servs., Inc., 2013 WL 6624124, at *4 (D. Haw.
Dec. 16, 2013) (citation omitted). A “motion for reconsideration 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.” Donaldson v. Liberty Mut. Ins. Co., 947 F. Supp. 429,
430 (D. Haw. 1996). Mere disagreement with a previous order is an insufficient
basis for reconsideration, and reconsideration may not be based on evidence and
legal arguments that could have been presented at the time of the challenged
decision. See Haw. Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253, 1269
(D. Haw. 2005). “Whether or not to grant reconsideration is committed to the
sound discretion of the court.” White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D.
Haw. 2006) (quoting Navajo Nation v. Confederated Tribes & Bands of the
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Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)).2
IV. DISCUSSION
Tagupa fails to meet the standard -- whether analyzed under LR 60.1
or Federal Rule of Civil Procedure 60(b)(2) -- for granting reconsideration. “To
base a motion for reconsideration on the discovery of new evidence, Plaintiff is
‘obliged to show not only that this evidence was newly discovered or unknown to
2
The court construes the Motion for Reconsideration as brought under LR 60.1. In her
Motion, however, Tagupa relies primarily on Federal Rule of Civil Procedure 60(b). Doc. No.
124, Mot. at 3-4. “Local Rule 60.1 mirrors Rule 60 of the Federal Rules of Civil Procedure,
which governs reconsideration motions relating to final orders.” Brenner v. IndyMac Bank,
F.S.B., 2010 WL 5387566, at *2 (D. Haw. Dec. 17, 2010). Because “Rule 60(b) . . . applies only
to motions attacking final, appealable orders,” United States v. Martin, 226 F.3d 1042, 1048 n.8
(9th Cir. 2000), VIPdesk argues that the court should summarily deny the Motion given that the
August 28 Order is not final and appealable.
Here, Tagupa is seeking reconsideration of a summary judgment order disposing of her
HWPA claim -- it is a dispositive order (and in that sense “final”) as to that claim, although not
immediately appealable absent a certification under Federal Rule of Civil Procedure 54(b).
Furthermore, LR 60.1 states that “[m]otions seeking reconsideration of case-dispositive orders
shall be governed by Fed. R. Civ. P. 59 or 60, as applicable.” And Fuller v. M.G. Jewelry, 950
F.2d 1437, 1442 (9th Cir. 1991), held that “a motion for reconsideration of summary judgment is
appropriately brought under either Rule 59(e) or Rule 60(b).” Thus, given the nature of the
August 28 Order, it was not unreasonable for Tagupa to rely on Rule 60.
In any event, it makes no difference here whether Rule 60(b) or LR 60.1 applies because
the standards are essentially the same. Under Rule 60(b)(2),
[r]elief from judgment on the basis of newly discovered evidence is warranted if
(1) the moving party can show the evidence relied on in fact constitutes “newly
discovered evidence” within the meaning of Rule 60(b); (2) the moving party
exercised due [or reasonable] diligence to discover this evidence; and (3) the
newly discovered evidence must be of “such magnitude that production of it
earlier would have been likely to change the disposition of the case.”
Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003) (quoting Coastal
Transfer Co. v. Toyota Motor Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir. 1987)). Rule
60(b)(2), as amended in 2007, requires “reasonable diligence” (instead of “due diligence”) for
newly discovered evidence. The change, however, was “intended to be stylistic only.” See Cole
v. Hawaii, 2008 WL 508075, at *1 n.2 (D. Haw. Feb. 26, 2008).
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[her] until after the hearing, but also that [she] could not with reasonable diligence
have discovered and produced such evidence at the hearing.” Stucky v. Haw.
Dep’t of Educ., 2008 WL 1959738, at *2 (D. Haw. May 6, 2008) (citations
omitted). Tagupa has failed to demonstrate reasonable diligence. She certainly
could have deposed Ornellas -- a key witness as she was Tagupa’s direct
supervisor -- well before her opposition to VIPdesk’s summary judgment motion
was due. See, e.g., Martinez v. Wawona Frozen Foods, 247 F. Appx. 883, 885
(9th Cir. 2007) (holding that plaintiff’s efforts to depose certain witnesses “did not
constitute new evidence because the opportunity to depose the [witnesses] had
long been present and [plaintiff] was given ample time to pursue the necessary
discovery”); Stucky, 2008 WL 1959738, at *3 (denying reconsideration where
“Plaintiff provides no evidence or argument as to why she did not or could not
depose the witnesses prior to filing the opposition . . . , and the information
contained in the depositions relates to events occurring well prior to the filing of
Plaintiff’s opposition”).
At most, Plaintiff mentioned that depositions were delayed by both
parties who were working to keep costs down in hopes of a settlement. Doc. No.
124, Mot. at 4. But this does not excuse her obligation under Rule 56 to oppose a
motion for summary judgment with specific facts demonstrating a genuine issue of
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material fact (or to seek a continuance under Rule 56(d)). Instead of
demonstrating reasonable diligence, the circumstances indicate exactly the
opposite -- Ornellas’ deposition was taken (1) over six months after VIPdesk filed
its Motion for Summary Judgment on June 3, 2015, Doc. No. 63; (2) over four
months after Tagupa filed her Opposition to the Motion for Summary Judgment on
July 27, 2015, Doc. No. 68; (3) over three months after the court ruled on the
Motion for Summary Judgment, Doc. No. 76; and (4) over three months after the
September 4, 2015 discovery deadline. Doc. No. 56, Third Am. Scheduling Order
¶ 12. And during the summary judgment proceedings, Plaintiff did not file a
request under Federal Rule of Civil Procedure 56(d) to defer ruling on the Motion
for Summary Judgment or to allow time to take additional discovery. See Schlicht
v. United States, 2006 WL 229551, at *2 (D. Ariz. Jan. 30, 2006) (“[T]he fact that
Plaintiff did not commence the deposition until nearly one month after the
discovery deadline had passed likewise belies his claim of due diligence.”).
Moreover, by waiting until over three months after the court granted
summary judgment in favor of VIPdesk on the HWPA claim, Tagupa knew the
court’s specific reasons why final judgment would enter against her before
conducting relevant discovery as to that claim. She incorrectly seeks, in essence, a
proverbial “second bite” at the apple. See, e.g., Jelks v. Swenson, 2008 WL
8
4974420, at *5 (D. Haw. Nov. 21, 2008) (“Reconsideration motions do not give
parties a ‘second bite at the apple.’ Nor are they justified on the basis of new
evidence which could have been discovered prior to the court’s ruling.”).
In any event, Ornellas’ deposition testimony would not change this
court’s ruling. At most, her testimony might explain why VIPdesk did not
terminate Tagupa earlier -- that is, before September 2011 -- where VIPdesk had
given her several previous “final written warnings” when faced with numerous
“written negative performance evaluations, reviews, or warnings about her poor
performance.” Tagupa, 2015 WL 5116943, at *11. But Ornellas’ testimony
would not change the undisputed fact that Tagupa had a poor work history and
that VIPdesk terminated her on September 8, 2011 “based on the instances of noncompliance with VIPdesk policies and [her] overall performance in the Concierge
position.” Id. at *12. The testimony would not change the fact that Tagupa was
given final written warnings in March and August of 2011, and that the September
8, 2011 termination was based in significant part on a specific instance of
violating a company policy on August 24, 2011. Id. at *12-13.
In short, even if the court could consider Ornellas’ December 9, 2015
deposition testimony, the testimony would not be of a “strongly convincing nature
to induce the court to reverse its prior decision,” Donaldson, 947 F. Supp. at 430,
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nor of “such magnitude that production of it earlier would have been likely to
change the disposition of the [motion].” Feature Realty, Inc. v. City of Spokane,
331 F.3d 1082, 1093 (9th Cir. 2003).
V. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Reconsideration,
Doc. No. 124, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 19, 2016.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Tagupa v. VIPdesk, Inc., Civ. No. 13-00428 JMS-KSC, Order Denying Plaintiff’s Motion for
Clarification And/or Modification of the Court’s Order Dated August 28, 2015 Based on New
Evidence, Doc. No. 124
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