Frost-Tsuji Architects v. Highway Inn, Inc. et al

Filing 395

ORDER DENYING SECOND MOTION FOR RECONSIDERATION CONCERNING COUNT IV re 222 , 391 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/23/2015. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electro nic 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
FROST-TSUJI ARCHITECTS,

)
)
Plaintiff,
)
)
vs.
)
)
HIGHWAY INN, INC.; HO`OLA
)
MAU, LLC; BRYCE UYEHARA,
)
A.I.A., INCORPORATED; J.
)
KADOWAKI, INC.; FESTIVAL
)
MANAGEMENT CORPORATION; et
)
al,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00496 SOM/BMK
ORDER DENYING SECOND MOTION
FOR RECONSIDERATION
CONCERNING COUNT IV

ORDER DENYING SECOND MOTION FOR
RECONSIDERATION CONCERNING COUNT IV
I.

INTRODUCTION.
Before the court is Frost-Tsuji’s Second Motion for

Reconsideration concerning Count IV.

This motion seeks

reconsideration of the order filed on August 26, 2014, granting
summary judgment against Frost-Tsuji on its copyright
infringement claim in Count IV of the Second Amended Complaint,
and the order filed on October 27, 2014, denying a motion for
reconsideration of that order.

Counsel for Frost-Tsuji

represents that, pursuant to Rule 56(d) of the Federal Rules of
Civil Procedure, Frost-Tsuji sought a continuance of the hearing
on its motion for partial summary judgment on Count IV and of the
cross-motion for summary judgment on Count IV.
representation is inaccurate.

That

Frost-Tsuji filed a Rule 56(d)

motion concerning a different motion.

Frost-Tsuji now claims to have discovered new evidence
that raises factual issues that should have precluded summary
judgment with respect to Count IV.

But Frost-Tsuji does not

demonstrate that it acted with reasonable diligence in obtaining
this new evidence.

To the contrary, the record indicates that it

was only after it lost cross-motions for summary judgment with
respect to the copyright infringement claim asserted in Count IV
that Frost-Tsuji sought the discovery it says led to the new
evidence.

This court expended substantial effort in drafting its

orders of August 26 and October 27, 2014.

What Frost-Tsuji would

have this court do is accept that the court wasted its time
relying on the then-existing record, excuse a party’s belated
discovery efforts, and revisit issues whenever a party feels
ready to supplement the record.

The court denies Frost-Tsuji’s

Second Motion for Reconsideration.
The court decides the Second Motion for Reconsideration
without a hearing pursuant to Local Rule 7.2(d).
II.

FACTUAL BACKGROUND
Count IV of the Second Amended Complaint of February

28, 2014, asserted a claim of copyright infringement.

See ECF

No. 53, PageID # 405-06.
On March 5, 2014, Frost-Tsuji filed a motion for
partial summary judgment with respect to the copyright
infringement claim asserted in Count IV.

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See ECF No. 55.

Frost-

Tsuji supplemented that motion on April 11, 2014, clarifying that
its motion only addressed “the issues of whether any of the named
defendants had a license to use and/or copy Frost-Tsuji’s
copyrighted work after Frost-Tsuji’s termination and, if no
license existed, whether any of the named defendants infringed
upon Frost-Tsuji’s copyrights.”

See ECF No. 85, PageID # 803.

On June 3, 2014, Defendant J. Kadowaki, Inc., filed a
motion for partial summary judgment with respect to Count IV,
arguing that Frost-Tsuji was not entitled to statutory damages
and attorneys’ fees based on Count IV, because Frost-Tsuji had
not registered its copyright before any alleged infringement and
because Frost-Tsuji had not published its architectural drawings.
See ECF No. 140.
August 4, 2014.

This motion was originally set for hearing on

August 18, 2014.

See ECF No. 143.

The hearing was continued to

See ECF Nos. 148 and 158.

On June 25, 2014, Defendants Highway Inn, Inc., and
Ho`ola Mau, LLC, filed a Cross-Motion for Summary Judgment with
respect to Count IV of the Second Amended Complaint and FrostTsuji’s motion for partial summary judgment on that count.

See

ECF No. 176.
A hearing on Frost-Tsuji’s motion for partial summary
judgment and Highway Inn and Ho`ola Mau’s cross-motion for
partial summary judgment with respect to Count IV was held on
July 21, 2014.

See ECF No. 206.

Before that hearing, the court

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issued its usual prehearing Inclinations.

The Inclinations

stated that the court was inclined to grant partial summary
judgment in favor of Defendants on the ground that Highway Inn
and Ho`ola Mau had an implied nonexclusive license to use the
plans created by Frost-Tsuji and that such a license was a
defense to the copyright infringement claim asserted in Count IV.
See ECF No. 205.

Based on the parties’ indication at the hearing

that the case might be settling, the court stated that it would
refrain from ruling until the parties indicated whether a
settlement had been reached.

See ECF No. 206.

On August 7, 2014, Frost-Tsuji filed a Rule 56(d)
request to continue the hearing on J. Kadowaki’s motion
concerning statutory damages and attorneys’ fees pursuant to
Count IV.

See ECF No. 215.
On August 26, 2014, after determining that the case had

not settled, the court, consistent with its prehearing
Inclinations, granted Highway Inn and Ho`ola Mau’s motion for
summary judgment with respect to Count IV.

See ECF No. 222.

The

court also granted the multiple joinders in that motion and
denied Frost-Tsuji’s motion for partial summary judgment with
respect to Count IV.

Id.

The court denied as moot J. Kadowaki’s

motion with respect to statutory damages and attorney’s fees, as
well as Frost-Tsuji’s Rule 56(d) motion to continue the hearing
on J. Kadowaki’s motion.

Id.

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On September 5, 2014, Frost-Tsuji sought
reconsideration of the order of August 26, 2014.

See ECF No.

232.

See ECF No.

That motion was denied on October 3, 2014.

292.
On October 8, 2014, Frost-Tsuji sent Defendant Bargreen
Ellingson of Hawaii, Inc., a Fifth Request for Admissions.
ECF No. 308.

Bargreen responded on November 7, 2014.

See

See ECF

No. 391-13.
On November 12, 2014, Frost-Tsuji noticed the
depositions of Monica Toguchi, Russell Ryan, Stan Sato, Bryce
Uyhara, and Richard Herbert Elkins.

See ECF Nos. 331 (Elkins

notice), 333 (Uyehara notice), 334 (Sato notice), 335 (Toguchi
and Ryan notice).
2014.

Elkins’s Deposition was taken on December 3,

See ECF No. 391-9.

December 11, 2014.

Toguchi’s Deposition was taken on

See ECF No. 391-4.

taken on December 12, 2014.

Ryan’s Deposition was

See ECF No. 391-11.

Deposition was taken on December 15, 2014.

Uyehara’s

See ECF No. 391-8.

Sato’s Deposition was taken on December 18, 2014.

See ECF No.

391-7.
On December 8, 2014, Frost-Tsuji sent a subpoena to
Kamehameha Schools.

See ECF No. 372.

In response to that

subpoena, Kamehameha Schools produced documents, including the emails filed as ECF Nos. 391-5 and 391-6, on January 9, 2014.

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See

Decl. of Randall K. Schmitt ¶¶ 8, 9, ECF No. 391-3, PageID #s
6212-13.
Based on the discovery it sought only after the court
had granted summary judgment in favor of Defendants with respect
to Count IV and after the court had denied Frost-Tsuji’s motion
for reconsideration of that order, Frost-Tsuji filed the Second
Motion for Reconsideration.
III.

See ECF No. 391.

ANALYSIS.
Frost-Tsuji seeks reconsideration of an interlocutory

order.

That is, Frost-Tsuji seeks reconsideration of an order

that, at the time it was entered, left other claims for further
adjudication.

To this day, a separate claim technically remains

pending, albeit subject to settlement that presumably will
include a stipulation to dismiss that claim.

Accordingly, the

reconsideration motion is governed by Local Rule 60.1, which
allows such motions based on “(a) Discovery of new material facts
not previously available; (b) Intervening change in law; and
(c) Manifest error of law or fact.”

“Mere disagreement with a

previous order is an insufficient basis for reconsideration.”
White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006).
“Whether or not to grant reconsideration is committed to the
sound discretion of the court.”

Id. (internal quotation marks

omitted).

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This court has previously stated, “To support a motion
for reconsideration based upon newly discovered evidence, the
movant is obliged to show not only that the evidence was newly
discovered or unknown, but also that it could not with reasonable
diligence have discovered and produced such evidence at the
hearing.”

Oyama v. Univ. of Haw., 2013 WL 3296567 (D. Haw. June

28, 2013); accord Hagan v. U.S. Nat’l Bank, 2014 WL 5465321 (D.
Haw. Oct. 27, 2014).

Accordingly, this court has denied motions

seeking reconsideration of orders based on evidence and/or legal
arguments that the party seeking reconsideration could have
raised in connection with an original motion.

See Barker v.

Gottlieb, 2015 WL 181776 (D. Haw. Jan. 14, 2015).

Because the

Second Motion for Reconsideration fails to show why Frost-Tsuji
could not have earlier discovered the evidence it now relies on,
the court denies the Second Motion for Reconsideration based on
“newly discovered evidence.”1
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Even if the court had already entered judgment given the
settlement of the remaining claims such that the Second Motion
for Reconsideration could be deemed to be seeking relief under
Rule 59(e) of the Federal Rules of Civil Procedure, the court’s
analysis would remain unchanged. With respect to motions for
reconsideration brought under Rule 59(e), the Ninth Circuit has
stated, “A Rule 59(e) motion may not be used to raise arguments
or present evidence for the first time when they could reasonably
have been raised earlier in the litigation.” See Kona Enter.,
Inc. v. Estate of Bishop, 229 F.2d 877, 890 (9th Cir. 2000).
Nor would examining the Second Motion for Reconsideration
under Rule 60(b)(2) of the Federal Rules of Civil Procedure
change the result. Although Rule 60(b)(2) allows relief from a
“final judgment, order, or proceeding” based on “newly discovered
evidence that, with reasonable diligence, could not have been
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In Engelhard Industries, Inc. v. Research Instrumental
Corp., 324 U.S. 347, 352 (1963), the Supreme Court addressed an
attempt to establish questions of fact in a patent infringement
case.

That attempt involved the submission of four affidavits

that had not been submitted to the trial court before it granted
summary judgment.

The trial court declined to consider the

affidavits when they were submitted in a motion for rehearing.
Id.

The Supreme Court ruled that the trial court had not erred

in granting summary judgment, as the facts in the affidavits had
been readily available and known well in advance of the summary
judgment hearing.

Id.

Based on Engelhard, the Ninth Circuit, in Frederick S.
Wyle Professional Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th
Cir. 1985), determined that a bankruptcy court had not abused its
discretion in denying reconsideration of a summary judgment
order, and that a district court had not erred in affirming that
denial.

That case involved a party’s reliance on “newly

discovered evidence” in seeking reconsideration.

Because that

discovered in time to move for a new trial under Rule 59(b),”
that rule does not excuse a litigant from diligently seeking
discovery prior to a motion for summary judgment. See Hopkins v.
Andaya, 958 F.2d 881, 887 n.5 (9th Cir. 1992), overruled on other
grounds as recognized in Federman v. County of Kern, 61 Fed.
Appx. 438, 440 (9th Cir. 2003) (“Appellants knew of the witness
and could have deposed him or submitted his affidavit to contest
the summary judgment motion. Appellants offer no excuse for not
presenting the affidavit earlier. A defeated litigant cannot set
aside a judgment because he failed to present on a motion for
summary judgment all the facts known to him that might have been
useful to the court.”).
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evidence was available before the summary judgment order issued,
the Ninth Circuit ruled that reconsideration was not appropriate.
Id.

The district court had held that, to support a motion for

reconsideration of a summary judgment order based on newly
discovered evidence, the movant was “obliged to show not only
that this evidence was newly discovered or unknown to it until
after the hearing, but also that it could not with reasonable
diligence have discovered and produced such evidence at the
hearing.”

Id.
In Kowalski v. Anova Food, LLC, 958 F. Supp. 2d 1147

(D. Haw. 2013), a party sought reconsideration of an order
denying a motion to dismiss for lack of personal jurisdiction.
The reconsideration motion was based in relevant part on a new
declaration by Douglas Brinsmade that had not been submitted to
the court in connection with the original motion.

The court

denied the motion for reconsideration, ruling that, “Defendants
have not shown that they could not have, with reasonable
diligence, such as through the service of a subpoena, presented
testimony from Brinsmade before the Court ruled on the Motions to
Dismiss.

Defendants may not now rely on a new declaration by

Brinsmade.”
Frost-Tsuji seeks reconsideration of orders based on
discovery it did not even seek until after the orders were filed.
Frost-Tsuji provides no explanation as to why it did not seek or

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could not have presented the evidence to the court in connection
with the original motion.

Frost-Tsuji’s failure to seek

discovery with reasonable diligence precludes it from now
obtaining reconsideration of the court’s orders based on “newly
discovered evidence.”
The court notes that, in connection with the Second
Motion for Reconsideration, counsel for Frost-Tsuji represents
that Frost-Tsuji had sought a Rule 56(d) continuance of the
cross-motions for partial summary judgment with respect to the
license issue in Count IV.

See ECF No. 391-3, PageID # 6211.

The court found no such request in the record.

Instead, the

record reflects that, after the court had held a hearing on those
motions, Frost-Tsuji filed a motion to continue the hearing on a
different motion, J. Kadowaki’s motion.

J. Kadowaki’s motion

concerned the issues of when Frost-Tsuji had registered its
copyright and whether it had published its drawing, not the
license issue raised by the cross-motions.

J. Kadowaki’s motion

was denied as moot based on the order granting summary judgment
in favor of Defendants with respect to the license issue raised
by Count IV.

Frost-Tsuji’s request for a continuance of J.

Kadowaki’s motion does not indicate reasonable diligence in
seeking discovery concerning the license issue relevant to its
own motion and the cross-motion filed by Highway Inn and Ho`ola
Mau.

10

Indeed, it would have made little sense for Frost-Tsuji
to have sought a Rule 56(d) continuance on the license issue.
Frost-Tsuji had itself moved for summary judgment on the license
issue, contending that there were no factual issues needing to be
tried as to that issue.

Rule 56(d) contemplates that a nonmovant

may need time to take discovery, but Frost-Tsuji was the movant.
Admittedly, Frost-Tsuji had to respond to Highway Inn and Ho`ola
Mau’s “cross motion.”

The court viewed the “cross-motion” as a

counter-motion under Local Rule 7.9, meaning that it addressed
the same subject matter as Frost-Tsuji’s motion and was, in
effect, the opposition to Frost-Tsuji’s motion.

See August 26,

2014, Order, ECF No. 222, PageID # 2877 (“The issue before this
court with respect to the countermotions on Count IV of the
Second Amended Complaint boils down to whether Highway Inn had a
license to use the architectural plans Frost-Tsuji created for
Highway Inn’s restaurant even after the agreement was
terminated.”).

For that reason, Frost-Tsuji’s opposition to that

“cross-motion” was also its reply in support of its original
motion on the license issue.

See ECF No. 198.

Frost-Tsuji quite

correctly did not make the illogical argument that it needed to
take further discovery on the very matter it was contending the
court could decide as a matter of law.

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IV.

CONCLUSION.
Frost-Tsuji seeks reconsideration of orders based on

“newly discovered evidence.”

Because Frost-Tsuji did not even

seek discovery of that information until after the orders issued
and does not show why it could not have done so, Frost-Tsuji is
not entitled to reconsideration.

The court denies the Second

Motion for Reconsideration, ECF No. 391.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 23, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Frost-Tsuji Architects v. Highway Inn, Inc., et al., Civ. No. 13-00496 SOM/BMK; ORDER
DENYING SECOND MOTION FOR RECONSIDERATION CONCERNING COUNT IV

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