Chris Grindling vs. Bert Sam Fong; et al.

Filing 8

ORDER DENYING MOTION FOR RECONSIDERATION re 7 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/15/2014. (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). Chris Grindling shall be served by first class mail at the address of record on May 16, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

CHRIS GRINDLING, #A0721079,
Plaintiff,
vs.
BERT SAM FONG, et al.,
Defendants.

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CIV. NO. 14-00098 SOM/BMK
ORDER DENYING MOTION FOR
RECONSIDERATION

ORDER DENYING MOTION FOR RECONSIDERATION
On February 27, 2014, Plaintiff commenced this action
by filing a “Notice of Removal,” seeking to remove his civil
complaint from the Circuit Court for the Second Circuit, State of
Hawaii to this court.1

See “Notice of Removal,” Doc. No. 1;

Compl., Doc. No. 1-1; see also Grindling v. Fong, 2CC13-1-001116
(Haw. 2d Cir. Ct., filed Dec. 27, 2013), avail. at: Hawai`i State
Judiciary’s Public Access to Court Information, Ho`ohiki,
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm.
On March 4, 2014, the court remanded the matter to the
Hawaii circuit court, finding that Plaintiff misunderstood the
removal procedure set forth under 28 U.S.C. § 1441.
Doc. No. 4.

See Order,

The court explained that a plaintiff who initiates

an action in state court may not remove that action to federal
court.
1

See 28 U.S.C. § 1441(a) (an action “may be removed by the

Plaintiff is incarcerated at the Maui Community
Correctional Center (“MCCC”).

defendant or the defendants”); see also Chicago, R.I. & P.R. Co.
v. Stude, 346 U.S. 574, 580 (1954); Thomas v. Advance Housing,
Inc., 475 Fed. Appx. 405, 407 (3d Cir. Apr. 3, 2012); Lawrence v.
Sec’y of State, 467 Fed. Appx. 523, 524 (7th Cir. May 3, 2012).
Plaintiff now moves for reconsideration.

He argues

that, notwithstanding his Notice of Removal and declarations to
the contrary, he did not intend to remove his case from the
Hawaii state court.

Rather, he claims that his state court

action was stricken by the state court because he has been deemed
a vexatious litigant in Hawaii.

He argues that he was not,

therefore, removing the action to this court, but was initiating
an action in federal court.

See Pl.’s Ex. A, Doc. No. 7-1.

In

the alternative, Plaintiff asserts that he has the right to
maintain a “bifurcated” action in the state and federal courts
and may “simultaneously file his suit in both state and federal
court.”

Mot., Doc. No. 7 at PageID #28.
I.

LEGAL STANDARD

Because the time has passed for altering or amending
the judgment under Rule 59 of the Federal Rules of Civil
Procedure, the court construes Plaintiff’s motion for
reconsideration as brought under Rule 60.

Rule 60(b) provides

relief from a final judgment for: “(1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence
that . . . could not have been discovered in time to move for a
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new trial under Rule 59(b); (3) fraud []; (4) the judgment is
void; (5) the judgment has been satisfied, released or
discharged, it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.”
R. Civ. P. 60.

Fed.

Relief under Rule 60(b)(6) is granted “sparingly

as an equitable remedy to prevent manifest injustice and . . .
only where extraordinary circumstances prevent a party from
taking timely action to prevent or correct an erroneous
judgment.”

Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008).

The moving party must demonstrate both injury and circumstances
beyond his control.

Id.

“A motion for reconsideration should not be granted,
absent highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear error,
or if there is an intervening change in the controlling law.”
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d
873, 880 (9th Cir. 2009) (internal quotations marks and citations
omitted).

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.

Hawaii 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

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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)).
III.

DISCUSSION

Plaintiff presents no basis for reconsideration under
sections two through six of Rule 60(b).

The court therefore

reviews Plaintiff’s Motion under Rule 60(b)(1), which allows a
court to correct its own errors of law or other mistakes.

Fid.

Fed. Bank FSB v. Durga Ma Corp., 387 F.3d 1021, 1024 (9th Cir.
2004); Kingvision Pay–Per–View Ltd. v. Lake Alice Bar, 168 F.3d
347, 350 (9th Cir. 1999).
Plaintiff initially argues that he intended to commence
an action in federal court when he filed his Notice of Removal,
not remove his civil rights case from the Hawaii court.

This

allegation is contradicted by the plain language of his Notice,
in which he states, “Comes now Plaintiff Chris Grindling Herein
Give This Court Notice of His Intent to Remove This Case from
Circuit Court State of Hawaii to U.S. District Court.”
1.

Doc. No.

This court accepted Plaintiff’s Notice as written and

reviewed his documents as seeking removal from the State court
pursuant to 28 U.S.C. § 1441.
Plaintiff has also filed many federal actions, in this
court, in the District of Arizona, and in the Ninth Circuit Court
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of Appeals.

See, e.g., Grindling v. Hawaii, App. Ct. No. 10-

15010 (9th Cir. 2010); Grindling v. Jinbo, Civ. No. 1:12-cv-00361
(D. Haw. 2012) (listing Plaintiff’s strikes); Grindling v.
Hawaii, Civ. No. 1:09-cv-00536 (D. Haw. 2009); Grindling v.
Thomas, Civ. No. 2:09-cv-2395 (D. Ariz. 2009).

His ability to

properly file and prosecute these cases and many others proves
that Plaintiff knows how to open an action in the federal court
if that is his intent.
Importantly, Plaintiff has accrued three strikes under
28 U.S.C. § 1915(g), and is aware of this restriction on his
ability to proceed in forma pauperis.

See, e.g., Grindling v.

Jinbo, Civ. No. 1:12-cv-00361 (D. Haw. 2012 (listing his cases
and notifying Plaintiff of his strikes).

A more likely

explanation for his attempt to remove his state case to this
court is that he sought to avoid § 1915(g)’s bar to his
proceeding in forma pauperis.

Further, when Plaintiff removed

his action to this court, he did not submit either an in forma
pauperis application or the filing fee (although he submitted
partial payment several weeks later).
Plaintiff also claims that his state court action had
been stricken before he filed this action; he implies that this
proves that he intended to commence a new action in this court.
This allegation is patently false.

Publicly available state

court records show that Grindling v. Fong, 2CC13-1-001116,

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remains pending in the state court.

See Ho’ohiki, avail. at:

http://hoohiki1.courts.state.hi.us/jud/Hoohiki.

As of May 13,

2014, Plaintiff is still awaiting disposition of his “Motion for
Prefiling Order,” in 2CC13-1-001116, which will determine whether
he can proceed despite his vexatious litigant status.

The only

document stricken from Plaintiff’s state case is his “Return of
Service and Supplement to Complaint That Was Served With
Complaint.”

Id., Doc. Nos. 3-4 (stricken February 14, 2014).

Moreover, Plaintiff’s Notice of Removal is dated
February 18, 2014, only one business day after his document was
stricken in

2CC13-1-001116.2

This suggests that Plaintiff was

attempting to remove his action from the state court before his
Motion for Prefiling Order could be either similarly stricken or
denied.
Plaintiff provides no persuasive reasons for
reconsideration of the Order of Remand in this case, and his
Motion for Reconsideration is DENIED.

Plaintiff may, of course,

commence a federal action by filing a civil rights complaint.
he files a complaint while a prisoner, however, he must
concurrently submit the full civil filing fees or an in forma
pauperis application.

And, to be granted in forma pauperis

2

February 14, 2014, was a Friday, and February 17, 2014,
was President’s Day.
6

If

status, he must plausibly allege imminent danger of serious
physical injury.

See 28 U.S.C. § 1915(g).

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 15, 2014.

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

Grindling v. Fong, et al., 1:14-cv-00098 SOM/BMK; psa/recon/2014/Grindling 14-98
(recon after remand); J:\Denise's Draft Orders\SOM\Grindling 14-98 som (recon of
remand).wpd

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