St. Classis Brown v. DCK Worldwide LLC

Filing 171

ORDER GRANTING DEFENDANTS MOTION TO STRIKE "SWORN STATEMENT" OF GREGORY BROWNE FILED WITH PLAINTIFF'S "RESPONSE TO MEMORANDUM IN OPPOSITION RE 160 MOTION FOR RECONSIDERATION RE 159 ORDER" FILED ON JANUARY 30, 2017 [DOC. 163 ]; AND (2) DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF RULING 159 Signed by JUDGE LESLIE E. KOBAYASHI on 03/09/2017. (eps, )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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CLINTON C. ST. CLASSIS BROWN, )
II,
)
)
Plaintiff,
)
)
vs.
)
)
DCK WORLDWIDE LLC, ET AL.,
)
)
)
Defendants.
_____________________________ )

CIVIL 14-00559 LEK-BMK

ORDER: (1) GRANTING DEFENDANTS’ MOTION TO STRIKE “SWORN
STATEMENT” OF GREGORY BROWNE FILED WITH PLAINTIFF’S “RESPONSE TO
MEMORANDUM IN OPPOSITION RE 160 MOTION FOR RECONSIDERATION RE 159
ORDER” FILED ON JANUARY 30, 2017 [DOC. 163]; AND (2) DENYING
PLAINTIFF’S MOTION FOR RECONSIDERATION OF RULING 159
On January 11, 2017, pro se Plaintiff Clinton C. St.
Classis Brown, II (“Plaintiff”) filed a Motion for
Reconsideration of Ruling 159 (“Motion for Reconsideration”).
[Dkt. no. 160.]

On January 27, 2017, Defendants dck Worldwide

LLC, dck Guam LLC, and DCK Pacific Guam, LLC (collectively
“Defendants”) filed a memorandum in opposition, and, on
January 30, 2017, Plaintiff filed a reply.

[Dkt. nos. 162, 163.]

Also before the Court is Defendants’ Motion to Strike “Sworn
Statement” of Gregory Browne Filed With Plaintiff’s “Response to
Memorandum in Opposition Re 160 Motion for Reconsideration Re 159
Order” Filed on January 30, 2017 [Doc. 163] (“Motion to Strike”),
filed on February 1, 2017.

[Dkt. no. 164.]

Plaintiff filed a

memorandum in opposition on February 6, 2017, and Defendants

filed a reply on February 13, 2017.1

[Dkt. nos. 166, 169.]

The

Court finds these matters suitable for disposition without a
hearing pursuant to Rule LR7.2(e) 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 motions,

supporting and opposing memoranda, and the relevant legal
authority, the Motion to Strike is HEREBY GRANTED and the Motion
for Reconsideration is HEREBY DENIED for the reasons set forth
below.
BACKGROUND
The background of this matter is well known to the
parties, and the Court will only discuss the facts relevant to
the instant motions.

On August 10, 2016, Defendants filed a

Motion for Summary Judgment to Dismiss All of Plaintiff’s Claims
(“Summary Judgment Motion”).

[Dkt. no. 139.]

On January 5,

2017, the Court filed its Order granting the Summary Judgment
Motion (“1/5/17 Order”).

[Dkt. no. 159.2]

1

Plaintiff titled his memorandum in opposition “Motion to
Oppose Striking the Authentic and Original Testimony of Gregory
Browne – Senior Superintendent, GMRC Project, Guam!” Plaintiff
is proceeding pro se, and the Court must construe his filings
liberally. See Pregana v. CitiMortgage, Inc., Civil No. 14-00226
DKW-KSC, 2015 WL 1966671, at *2 (D. Hawai`i Apr. 30, 2015) (“The
Court liberally construes the [plaintiffs’] filings because they
are proceeding pro se.” (citing Eldridge v. Block, 832 F.2d 1132,
1137 (9th Cir. 1987))). The Court will therefore treat
Plaintiff’s filing as a memorandum in opposition.
2

The 1/5/17 Order is also available at 2017 WL 62515.
2

STANDARD
This Court has previously stated that 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.” See Davis v. Abercrombie, Civil No.
11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D.
Hawai`i June 2, 2014) (citation and internal
quotation marks omitted). This district court
recognizes three circumstances where it is proper
to grant reconsideration of an order: “(1) when
there has been an intervening change of
controlling law; (2) new evidence has come to
light; or (3) when necessary to correct a clear
error or prevent manifest injustice.” Tierney v.
Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585,
at *1 (D. Hawaii May 1, 2013) (citing School
District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262
(9th Cir. 1993)). “Mere disagreement with a
previous order is an insufficient basis for
reconsideration.” Davis, 2014 WL 2468348, at *3
n.4 (citations and internal quotation marks
omitted).
Riley v. Nat’l Ass’n of Marine Surveyors, Inc., Civil No. 1400135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25,
2014).
DISCUSSION
I.

Motion to Strike
Along with his reply in support of the Motion for

Reconsideration, Plaintiff submitted a letter purportedly written
by Gregory Browne (“Browne Letter”).

3

[Reply in Supp. of Motion

for Reconsideration at 7.3]

The Motion to Strike argues that the

Browne Letter does not conform to the relevant rules.
Strike at 2.]

[Motion to

Specifically, Defendants allege that the Browne

Letter violates Fed. R. Civ. P. 56(e),4 Local Rule 7.6, and 28
U.S.C. § 1746.5

Moreover, Defendants submit a declaration by

3

Plaintiff’s filings are not consecutively paginated, and
the Court will refer to the page numbers assigned by this
district court’s electronic case filing system.
4

Fed. R. Civ. P. 56(e) provides actions that a court may
take “[i]f a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact as
required by Rule 56(c),” including, “consider[ing] the fact
undisputed for purposes of the motion[.]”
5

28 U.S.C. § 1746 states, in relevant part:
Wherever, under any law of the United States or
under any rule, regulation, order, or requirement
made pursuant to law, any matter is required or
permitted to be supported, evidenced, established,
or proved by the sworn declaration, verification,
certificate, statement, oath, or affidavit, in
writing of the person making the same (other than
a deposition, or an oath of office, or an oath
required to be taken before a specified official
other than a notary public), such matter may, with
like force and effect, be supported, evidenced,
established, or proved by the unsworn declaration,
certificate, verification, or statement, in
writing of such person which is subscribed by him,
as true under penalty of perjury, and dated, in
substantially the following form:
(1) If executed without the United States:
“I declare (or certify, verify, or state)
under penalty of perjury under the laws of
the United States of America that the
foregoing is true and correct . . . ”.

The Browne Letter includes an address in New Zealand, and it is
(continued...)
4

Gregory Ian Brown (“Brown”) stating that he did not write the
Browne Letter.6

See Motion to Strike, Decl. of Gregory Ian Brown

(“Brown Decl.”) at ¶ 3 (“I did not write the statement, and I did
not sign the statement on October 29, 2015.”).7
Plaintiff asserts that, inter alia:

In response,

Defendants referenced

“Gregory Browne” in previous documents submitted to the Court and
the United States Equal Employment Opportunity Commission
(“EEOC”); Plaintiff’s former attorney obtained the Browne Letter;
and Defendants have had the Browne Letter since September 2015.
[Mem. in Opp. to Motion to Strike at 4-5.]
Local Rule 7.6 states, in pertinent part, that:
Factual contentions made in support of or in
opposition to any motion shall be supported by
affidavits or declarations, when appropriate under
the applicable rules. Affidavits and declarations
shall contain only facts, shall conform to the
requirements of Fed. R. Civ. P. 56(e) and 28
U.S.C. § 1746, and shall avoid conclusions and

5

(...continued)
dated August 29, 2015.
Reconsideration at 7.]

[Reply in Supp. of Motion for

6

The Browne Letter states that “Gregory Browne” is “a
former superintendent at dck Worldwide, Guam LLc [sic].” [Reply
in Supp. of Motion for Reconsideration at 7.] The Brown
Declaration states that Brown “worked on Guam as a senior
superintendent for dck pacific guam LLC on the Guam Regional
Medical City project until mid 2013.” [Brown Decl. at ¶ 1.] The
Brown Declaration also points out that the Browne Letter
misspells Brown’s name. See Brown Decl. at ¶ 4 (“My name is
spelled ‘Brown’ not ‘Browne.’”).
7

Defendants submitted a copy of the Brown Declaration with
the Motion to Strike, and submitted the original Brown
Declaration on February 13, 2017. [Dkt. no. 168.]
5

argument. Any statements made upon information or
belief shall specify the basis therefor.
Affidavits and declarations not in compliance with
this rule may be disregarded by the court.
The Browne Letter does not meet the requirements of § 1746, nor
does it comply with Rule 56(e) or Local Rule 7.6.

Moreover,

while Plaintiff repeatedly suggests that all of Defendants’
submissions to the Court should be closely scrutinized, see Mem.
in Opp. to Motion to Strike at 4 (“the defendants motion to
‘strike’ Gregory Browne’s testimony is further proof of the
defendants lawyer’s pent-ion to fabricate, invent, and produce
bogus testimonials” (emphasis omitted)), he does not address the
content of the Brown Declaration or Brown’s testimony that he:
did not write the Browne Letter; and has not had any contact with
Plaintiff since 2013.8

[Brown Decl. at ¶¶ 3, 6.]

8

The Court

In addition to his memorandum in opposition, on February
15, 2017, Plaintiff filed a document titled “Plaintiffs Response
to Defendants 168 & 169 Motion” (“Supplemental Memorandum”).
[Dkt. no. 170.] Local Rule 7.4 provides deadlines for memoranda
in opposition and replies, and states, “[n]o further or
supplemental briefing shall be submitted without leave of court.”
Plaintiff did not request leave to file the Supplemental
Memorandum, nor did the Court grant him such leave. “Pro se
litigants shall abide by all local, federal, and other applicable
rules and/or statutes.” Local Rule LR83.13. The Court has
reminded Plaintiff of this obligation on numerous occasions.
See, e.g., Minutes, filed 2/4/16 (dkt. no. 98), at 1 (“The Court
reminds Plaintiff that, although he is proceeding pro se, he is
still bound by the Federal Rules of Civil Procedure and the Local
Rules. Continued violation of the rules may result in sanctions
or dismissal of the instant action.” (emphasis omitted)). The
Court HEREBY STRIKES the Supplemental Memorandum. Even if the
Court were to consider the Supplemental Memorandum, however, it
does not address the content of the Brown Declaration, including
(continued...)
6

concludes that, because it does not comply with the relevant
rules, the Browne Letter should be disregarded, and the Motion to
Strike is therefore GRANTED.
I.

Motion for Reconsideration
Plaintiff seeks reconsideration of the 1/5/17 Order

because, inter alia:

he was subjected to racial epithets and

other questionable comments; Jack Owen (“Owen”) and Kerry Marquez
(“Marquez”) were terminated four months after allegedly using
racist language; dck Worldwide LLC Vice President Laurie Bowers
(“Bowers”), and Defendants generally, misled the court; the Court
has prevented Plaintiff “from calling witnesses or . . . even
communicat[ing] with them”; and “no consideration was given
. . . to the fact that the plaintiff was terminated from a
second job in Honolulu.”

[Motion for Reconsideration at 2-4.]

First, the Court has already addressed the issue of
racist language allegedly used by Plaintiff’s coworkers.
1/5/17 Order at 8-9.

See

Similarly, the Court has already discussed

the employment of Owen and Marquez, as well as why their
respective terminations do not support Plaintiff’s discrimination
claims.

See id.

Next, with regard to the allegations involving

Bowers, Plaintiff appears to reference a declaration submitted to
support dck Worldwide LLC’s motion to dismiss Plaintiff’s

8

(...continued)
Brown’s assertion that he did not write the Browne Letter, and it
would not affect the Court’s ruling on the Motion to Strike.
7

original complaint.

See Concise Statement of Facts in Supp. of

Def.’s Motion to Dismiss or in the Alternative, Motion for
Summary Judgment to Dismiss Employment Discrimination Complaint
Filed 12/12/14, filed 1/20/15 (dkt. no. 13), Declaration of
Laurie Bowers (“Bowers Decl.”) at ¶ 3 (stating that Plaintiff was
never employed by dck Worldwide LLC).

The Court addressed this

matter in its Order filed on March 31, 2015 (“3/31/15 Order”).
[Dkt. no. 34 at 4 (“The Court agrees that Plaintiff’s Complaint,
as currently drafted, fails to state a claim against DCK
Worldwide.”).9]

Fourth, Plaintiff challenges the ruling on

Defendants Motion for an Order Prohibiting Plaintiff Clinton St.
Classis Brown II’s Direct Contact and Harassment of Witnesses,
Employees, and Agents of Defendants (“Contact Motion”), filed on
February 3, 2016.

[Dkt. no. 95.]

As discussed in the Court’s

Order filed on June 20, 2016 (“6/20/16 Order”), [dkt. no. 132,]
the magistrate judge granted the Contact Motion, without
attorneys’ fees and costs, and the Court affirmed the magistrate
judge’s ruling.

[6/20/16 Order at 3-4 (discussing the magistrate

judge’s rulings), 7-8 (affirming the magistrate judge’s ruling on
the Contact Motion).]
on this matter.

Accordingly, the Court has already ruled

Finally, with regard to Plaintiff’s argument

that he was terminated from a second job in Honolulu because of
Defendants, Plaintiff does not state the claim to which this

9

The 3/31/15 Order is also available at 2015 WL 1499623.
8

allegation pertains.

However, in the 1/5/17 Order, the Court

found that Plaintiff did not provide any evidence to support his
conspiracy claim, and the Court also concluded that it “has
already determined that Plaintiff was terminated for legitimate,
nondiscriminatory reasons.”

[Id. at 12-13.]

Thus, Plaintiff

does not provide any change in law, new evidence, or clear error
upon which the Court may grant reconsideration.
In his reply, Plaintiff alleges additional grounds upon
which his Motion for Reconsideration should be granted, but the
Court may not consider these additional arguments.

See Local

Rule LR7.4 (“Any argument raised for the first time in the reply
shall be disregarded.”).

Even if the Court were to do so, they

would not change the Court’s ruling on the Motion for
Reconsideration.

Plaintiff’s reply repeats the unfounded

allegations about the Bowers Declaration, and adds that:

(1) the

testimony of former employees of Defendants was “suppressed and
withheld from these proceedings”; (2) a temporary restraining
order was used in the proceedings before the EEOC to discredit
Plaintiff; and (3) the Chief Executive Officer of Nan Inc. said
he would not hire Plaintiff because of information learned from
Defendants.
6.]

[Reply in Supp. of Motion for Reconsideration at 4-

The only testimony that Plaintiff identifies that was

allegedly “suppressed and withheld” is the Browne Letter, which

9

has already been stricken from the record.10

[Id. at 5.]

Next,

any issue involving a temporary restraining order during the EEOC
proceedings is not properly before the Court, nor is it new
evidence that has just come to light.

Finally, as the Court has

already stated, any allegations regarding a conspiracy to keep
Plaintiff from getting a job have already been rejected, and
Plaintiff has not explained how this is new information that was
previously unavailable.11

The Motion for Reconsideration is

therefore DENIED.
CONCLUSION
On the basis of the foregoing, Defendants dck Worldwide
LLC, dck Guam LLC, and DCK Pacific Guam, LLC’s Motion to Strike
“Sworn Statement” Of Gregory Browne Filed With Plaintiff’s
“Response to Memorandum in Opposition Re 160 Motion for
Reconsideration Re 159 Order” Filed on January 30, 2017 [Doc.
163], filed on February 1, 2017, is HEREBY GRANTED, and Plaintiff
Clinton C. St. Classis Brown, II’s Motion for Reconsideration of
Ruling 159, filed on January 11, 2017, is HEREBY DENIED.

The

10

The Court also notes that, in his memorandum in
opposition to the Motion to Strike, Plaintiff states that the
Browne Letter was obtained by his former attorney, [Mem. in Opp.
to Motion to Strike at 5,] and it is therefore implausible that
Defendants “suppressed and withheld” that document.
11

Further, because the Court “determined that Plaintiff was
terminated for legitimate, nondiscriminatory reasons,” see 1/5/17
Order at 12-13, any information that Defendants provided to
future employers about Plaintiff’s termination would not be, on
its face, unlawful.
10

Court DIRECTS the Clerk’s Office to enter final judgment and
close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 9, 2017.

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

CLINTON C. ST. CLASSIS BROWN, II VS. DCK WORLDWIDE LLC, ET AL;
CIVIL 14-00559 LEK-BMK; ORDER: (1) GRANTING DEFENDANTS’ MOTION TO
STRIKE “SWORN STATEMENT” OF GREGORY BROWNE FILED WITH PLAINTIFF’S
“RESPONSE TO MEMORANDUM IN OPPOSITION RE 160 MOTION FOR
RECONSIDERATION RE 159 ORDER” FILED ON JANUARY 30, 2017 [DOC.
163]; AND (2) DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF
RULING 159

11