Chung v. City and County of Honolulu et al

Filing 68

ORDER DENYING 59 MOTION FOR RECONSIDERATION. Signed by JUDGE DERRICK K. WATSON on 5/5/2016. (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 HAWAI`I
NELSON A. CHUNG,

CIVIL NO. 14-00314 DKW-BMK

Plaintiff,

ORDER DENYING MOTION FOR
RECONSIDERATION

vs.
CITY AND COUNTY OF
HONOLULU, a Municipal
Corporation, PAMELA OKIHARA,
and ELIZABETH TSURUDA,
Managing Employees; JOHN DOES 156; JANE DOES 1-56; DOE
PARTNERSHIPS 1-56; DOE
CORPORATIONS 1-56; DOE
ENTITIES 1-56; and DOE
GOVERNMENTAL UNITS 1-56,
Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION
Plaintiff Nelson Chung requests this Court to reconsider its January 27, 2016
Order Granting Defendants’ Motion for Summary Judgment (the “Order”). Dkt.
No. 54. Having now done so, Chung’s Motion is DENIED for the reasons below.
BACKGROUND
The facts underlying this action are set forth in the Order and need not be
recounted in full here. Briefly, Chung filed suit against his former employer, the
City and County of Honolulu, and his former County supervisors, Pamela Okihara

and Elizabeth Tsuruda (collectively “Defendants”), alleging that they discriminated
against him on the basis of his sex and sexual orientation in violation of state and
federal law. Because Chung’s claims were untimely, the Court entered summary
judgment in favor of Defendants. Dkt. Nos. 54 and 55. On February 24, 2016,
after retaining new counsel, Chung moved for reconsideration pursuant to Rules
59(e) and 60(b) of the Federal Rules of Civil Procedure. Dkt. No. 59.
STANDARD
Chung’s motion for reconsideration, filed within twenty-eight days of entry
of judgment, is considered under Rule 59(e). United States v. Comprehensive
Drug Testing, Inc., 513 F.3d 1085, 1098 (9th Cir. 2008) (citing Am. Ironworks &
Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001)).1
Under Rule 59(e), a motion for reconsideration may be appropriate “(1) if
such motion is necessary to correct manifest errors of law or fact upon which the
judgment rests; (2) if such motion is necessary to present newly discovered or
previously unavailable evidence; (3) if such motion is necessary to prevent
manifest injustice; or (4) if the amendment is justified by an intervening change in
controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011)
(citation omitted). While a “district court has considerable discretion when

1

The standards for reconsideration under Rules 59(e) and 60(b) are substantially similar, United
Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009), and would result
in the same disposition here.

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considering a motion to amend a judgment under Rule 59(e)[,]” Turner v.
Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003), “amending
a judgment after its entry remains ‘an extraordinary remedy which should be used
sparingly.’” Allstate Ins. Co., 634 F.3d at 1111.
DISCUSSION
Chung seeks reconsideration (1) “to prevent manifest injustice by addressing
equitable tolling”; and (2) to “correct a clear error” based upon Rene v. MGM
Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc).2 Dkt. No. 59 at 14.
He alleges that his administrative claims and Section 1983 claims “were either
within the filing period/statute of limitations or there is a continuing violation or
equitable tolling applies herein.” Id.
Chung is simply incorrect. He walked out on his job with the County in
March 2008, never to return. As a result, whatever cause of action he may have
had based on what occurred to him in the workplace, accrued for statute of
limitations purposes no later than that date. By his own admission, neither
Tsuruda, nor Okihara, nor any other County employee did anything to him, said
anything about him, or treated him inappropriately (or even appropriately) after

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After Defendants pointed out in their opposition that this Court had not relied on Rene in
rendering its decision, Chung clarified in his reply that “there was no error by this Court
regarding the substantive claims[,]” and that “Counsel misspoke when she had indicated that this
Court had committed error regarding the sexual orientation issue” set forth in Rene. Dkt. No. 67
at 4.

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March 2008 because he was no longer there, and there is no evidence or even
assertion that anyone from the County attempted to reach out to him thereafter.
Accordingly, his May 2012 administrative complaints to the HCRC and EEOC
were well beyond the applicable deadlines, and his Section 1983 claim, asserted
for the first time in the instant action, is no less untimely.
The County did not formally terminate Chung until sending him a letter on
October 24, 2011. Chung erroneously attempts to use this event to save his late
claims. Other than serving as notice of his termination, the October 2011 letter,
sent by a County Department Director with whom Chung had no prior contact,
represented a discrete act with no connection, temporal or otherwise, to whatever
occurred to Chung in the workplace prior to March 2008. It therefore cannot
properly be viewed as evidence of a continuing violation, nor is this evidence or
argument new to the Court on reconsideration. See Haw. Stevedores, Inc. v. HT &
T Co., 363 F. Supp. 2d 1253, 1269 (D. Haw. 2005) (explaining that reconsideration
may not be based on evidence and legal arguments that could have been presented
at the time of the challenged decision); Chapman v. Journal Concepts, Inc., 2007
WL 4354417, at *2 (D. Haw. Dec. 13, 2007) (“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 until after the hearing,
but also that it could not with reasonable diligence have discovered and produced
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such evidence at the hearing.’” (quoting Frederick S. Wyle Prof’l Corp. v. Texaco,
Inc., 764 F.2d 604, 609 (9th Cir. 1985)).
Finally, where all else fails, Chung urges the Court to equitably toll any
applicable limitations period that would otherwise bar his untimely claims.
Beyond the fact that Chung never previously asserted equitable tolling, and does
not now present any evidence of it that could not have been presented before, see
Image Tech. Serv., Inc. v. Eastman Kodak, 903 F.2d 612, 615 n. 1 (9th Cir. 1990)
(holding that plaintiff's failure to raise an issue in opposition to defendant’s motion
for summary judgment waived the issue); Alexopulos ex rel Alexopulos v.
Riles,784 F.2d 1408, 1410–11 (9th Cir. 1986) (finding tolling argument waived
because the appellants failed to raise it in opposition to summary judgment), the
facts do not warrant its application. There is no evidence or even assertion that the
County or its employees did anything to prevent or inhibit Chung’s assertion of his
legal rights. Moreover, Chung’s attempt to lay blame for his tardy actions at the
feet of his prior, allegedly inexperienced, counsel is unavailing. It is not clear, first
of all, that prior counsel was even involved at a time when Chung’s claims were
still timely, and, in any event, the Court agrees with the County that attorney
inexperience and omissions are not generally valid bases for reconsideration. See
Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th Cir. 2004).

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In sum, having reviewed the reconsideration request, the Court finds no
manifest error of law or fact, nor would it be manifestly unjust to enter judgment in
favor of the County under the circumstances presented here.
CONCLUSION
Chung’s Motion for Reconsideration (Dkt. No. 59) is DENIED.3
IT IS SO ORDERED.
DATED: May 5, 2016 at Honolulu, Hawai‘i.

Chung v. City and County of Honolulu, et al.; CV 14-00314 DKW-BMK; ORDER
DENYING CHUNG’S MOTION FOR RECONSIDERATION

3

In light of this Court’s ruling, the Court denies as moot Chung’s request to amend his Complaint
to include a disability discrimination claim and a Parnar claim. See Dkt. No. 59 at 14 n.1.

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