Young v. Kraus et al

Filing 111

ORDER DENYING THE PORTION OF PLAINTIFF'S MOTION SEEKING RECONSIDERATION OF THIS COURT'S JANUARY 27, 2017 ORDER AND DENYING WITHOUT PREJUDICE THE PORTION OF THE MOTION ATTEMPTING TO APPEAL THE ORDER OR RULINGS ISSUED BY THE MAGISTRATE JUDGE re 109 , 110 filed by Christopher Young re 106 Order Patrick T. Kihara, County of Hawaii, Police Department and Hawaii, County of terminated.. If Plaintiff chooses to do so, he may file an amended appeal by March 3, 2017. Plaintiffs amended appeal must comply with the requirements described in this Order. Signed by JUDGE LESLIE E. KOBAYASHI on 02/17/2017. (eps, )CERTIFICATE OF SERVICEParticipants registe red 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 served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
vs.
)
)
)
MICHAEL M. KRAUS, Owner of
)
Tree Works Inc., COUNTY OF
)
HAWAII, POLICE DEPARTMENT,
PATRICK T. KIHARA as a Police )
)
Officer in the County of
Hawaii, State of Hawaii, JOHN )
)
DOES 1-10, JANE DOES 1-10,
)
DOE CORPORATIONS 1-10, DOE
)
PARTNERSHIPS 1-10, AND DOE
)
GOVERNMENT ENTITIES 1-10,
)
)
Defendants.
_____________________________ )
CHRISTOPHER YOUNG,

CIVIL 15-00383 LEK-KSC

ORDER DENYING THE PORTION OF PLAINTIFF’S MOTION SEEKING
RECONSIDERATION OF THIS COURT’S JANUARY 27, 2017 ORDER AND
DENYING WITHOUT PREJUDICE THE PORTION OF THE MOTION ATTEMPTING
TO APPEAL THE ORDER OR RULINGS ISSUED BY THE MAGISTRATE JUDGE
On January 27, 2017, this Court issued its Order
Granting in Part and Denying in Part the County Defendants’
Motion to Dismiss Christopher Young Amendment (sic) of Complaint
Filed March 4, 2016 [Document 35] (“1/27/17 Order”).
106.]

[Dkt. no.

On February 13, 2017, pro se Plaintiff Christopher Young

(“Plaintiff”) filed a document titled “Plaintiff’s Separate
Concise Statement of Facts in Opposition 12/20/2016 Hearing this
Court Lack Jurisdiction and Objection to Defendnat (sic) Kraus
Order 1/6/2017 and Judge Order 1/12/2017” and, on February 16,
2017, Plaintiff filed a document titled “Objection to Judge’s

Order Granting in Part the County Defednats’ Motion to Dismiss
Christopher Young Amendment (sic) of Complaint Filed March 4,
2016 [Document 35].”

[Dkt. nos. 109, 110.]

The two documents

raise similar arguments and this Court considers them
collectively as one “Motion.”

Because Plaintiff is proceeding

pro se, this Court must liberally construe his filings.

See,

e.g., 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))).

This Court liberally CONSTRUES

Plaintiff’s Motion as: 1) seeking reconsideration of the 1/27/17
Order; and 2) attempting to appeal the order and/or oral rulings
issued by the magistrate judge regarding a discovery motion.
The Court has considered the two portions of the Motion
as non-hearing matters 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 Motion and the relevant legal authority, the portion of
the Motion seeking reconsideration of the 1/27/17 Order is
DENIED, and the portion of the Motion attempting to appeal the
magistrate judge’s order and/or oral rulings is DENIED WITHOUT
PREJUDICE to the filing of an amended appeal that complies with
the terms of this Order.

2

DISCUSSION
I.

Motion for Reconsideration
In the 1/27/17 Order, this Court – among other things –

dismissed all of Plaintiff’s claims against Defendants the County
of Hawai`i, the County of Hawai`i Police Department
(collectively, “the County”), and Patrick T. Kihara (“Kihara”,
all collectively, “the County Defendants”) with prejudice.1

As

to all of the claims against the County Defendants, this Court
concluded that Plaintiff failed to cure the defects in his claims
that this Court identified in the order dismissing his original
Complaint.

In particular, this Court noted that Plaintiff

amended his fraudulent misrepresentation claim to allege that
Kihara falsely told the paramedic who responded to Plaintiff’s
accident that all parties who had been involved in the accident
refused medical treatment.

This Court concluded that Plaintiff

still failed to state a plausible fraudulent misrepresentation
claim against Kihara because the Amended Complaint did not allege
either actual reliance on Kihara’s statement or that Kihara’s
statement was detrimental to Plaintiff.

The Amended Complaint

failed to allege a detriment to Plaintiff because, according to
paragraph 11 of the Amended Complaint, Plaintiff and John Hoffman

1

Plaintiff filed his “Amendment of Complaint” (“Amended
Complaint”) on March 4, 2016. [Dkt. no. 35.] The County
Defendants filed a motion to dismiss the Amended Complaint
(“Motion to Dismiss”) on March 14, 2016. [Dkt. no. 38.]
3

– who was in the vehicle with Plaintiff – were taken to Hilo
Medical Center after the accident to be examined by a doctor.
[1/27/17 Order at 9-11.]
In the instant Motion, Plaintiff now states that, after
Kihara told the paramedic that all parties had refused medical
treatment, “the paramedic left the scene of the accident, Kihara
gave Plaintiff [the] police report number, then told Plaintiff to
leave the scene of the accident; Plaintiff in pain.”

[Motion

(dkt. no. 109), Decl. of Christopher Young at ¶ 7 (citing Amended
Complaint at ¶¶ 9-11, p.3).]
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.
Hawaii 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).
4

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).
Plaintiff does not allege there has been an intervening
change in the law or there is newly discovered evidence that
should change the Court’s ruling on the Motion to Dismiss.
Plaintiff apparently argues that this Court made a clear error in
construing the factual allegations of the Amended Complaint
because the paramedic did leave the scene of the accident in
reliance on Kihara’s statement.

However, paragraph 11 of the

Amended Complaint speaks for itself; it states that Plaintiff and
Hoffman “were taken to the Hilo Medical Center to have injuries
checked by a medical doctor.”

In considering the County

Defendants’ Motion to Dismiss, the scope of this Court’s review
was limited to the allegations in the Amended Complaint.

See

Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.
2010).

Plaintiff cannot rely on a self-serving declaration that

contradicts the allegations in his Amended Complaint to defeat
the Motion to Dismiss or to seek reconsideration of the 1/27/17
Order.

This Court therefore CONCLUDES that Plaintiff’s Motion

does not present any ground that warrants reconsideration of this
Court’s dismissal with prejudice of his fraudulent
misrepresentation claim against Kihara.

5

The instant Motion also alleges that the removal of
this action on September 28, 2015 was “false or fraud-based”
because of an alleged conspiracy regarding the service of the
Complaint.

[Motion (dkt. no. 109) at 2.]

This argument has no

bearing upon the issues addressed in the 1/27/17 Order, and it
therefore does not establish any of the three grounds that
warrant reconsideration of a court order.

Further, to the extent

that Plaintiff’s argument could be construed as seeking
reconsideration of this Court’s April 19, 2016 order denying
Plaintiff’s motion for remand,2 the request is untimely.

See

Local Rule LR60.1 (stating that a motion for reconsideration
alleging a manifest legal or factual error “must be filed and
served not more than fourteen (14) days after the court’s written
order is filed”).

Thus, to the extent that Plaintiff’s Motion is

based on the alleged conspiracy regarding service of the
Complaint, Plaintiff’s Motion is DENIED.
The Motion’s other arguments do not establish an
intervening change of law, any newly discovered evidence, a clear

2

On March 4, 2016, Plaintiff filed a document titled
“Verification of Plaintiff’s Objection to Judges Failiar to
Address the Rule 4 Violations of the Defendants County’s Counsel
in the Removal on 9/28/2015” (“3/4/16 Filing”). [Dkt. no. 34.]
On March 8, 2016, this Court issued an entering order construing
the 3/4/16 Filing as, among other things, a motion for remand.
[Dkt. no. 36.] On April 19, 2016, this Court issued its Order
Denying “Verification of Plaintiff’s Objection to Judges Failiar
to Address the Rule 4 Violations of the Defendants County’s
Counsel in the Removal on 9/28/2015.” [Dkt. no. 46.]
6

error in the 1/27/17 Order, or a manifest injustice in the order
which requires reconsideration.

This Court therefore CONCLUDES

that Plaintiff has not established any ground that warrants
reconsideration of the 1/27/17 Order.

To the extent that

Plaintiff’s Motion seeks reconsideration of the 1/27/17 Order,
the Motion is DENIED.
II.

Attempt to Appeal to the Magistrate Judge’s Order/Rulings
Plaintiff’s Motion also purports to: state facts in

opposition to a December 20, 2016 hearing; and raise objections
to a “Kraus Order” dated January 6, 2017, and a “Judge Order”
dated January 12, 2017.

[Motion (dkt. no. 109) at 1.]

On

December 20, 2016, the magistrate judge held a hearing on
Defendant Michael M. Kraus and Tree Works, Inc.’s (collectively
“Kraus”) Motion to Compel Answers to Interrogatories (“Motion to
Compel”), filed October 10, 2016.
granted the Motion to Compel.

The magistrate judge orally

[Dkt. nos. 90 (Motion to Compel),

104 (Minutes of December 20, 2016 hearing).]

There was no court

order filed on January 6, 2017, but, on January 12, 2017, the
magistrate judge filed a written order granting the Motion to
Compel.
Local Rule 72.3 states: “Unless otherwise ordered, a
magistrate judge shall hear and determine all pretrial motions,
including discovery motions, in a civil . . . case.”

Local

Rule 74.1 states: “Any party may appeal from a magistrate judge’s

7

order determining a motion or matter under LR72.3 . . . within
fourteen (14) days after being served with a copy of the order.”
This Court therefore CONSTRUES the Motion as an attempt to appeal
the magistrate judge’s order and/or oral rulings regarding
Kraus’s Motion to Compel.
However, Local Rule 74.1 requires that a party
appealing a magistrate judge’s order “specifically designate the
portions of the order appealed from.”

This Court cannot

determine from Plaintiff’s Motion what specific portions of the
magistrate judge’s order and/or oral rulings he is appealing
from.

This Court also notes that Plaintiff filed the first part

of the Motion on February 13, 2017, which appears to be more than
fourteen days after the magistrate judge filed the order granting
Kraus’s Motion to Compel.
This Court therefore DENIES the portion of Plaintiff’s
Motion which attempts to appeal the magistrate judge’s order
and/or oral rulings regarding the Motion to Compel.

The denial

is WITHOUT PREJUDICE to the filing of an amended appeal.

If

Plaintiff chooses to file an amended appeal, he must do so by
March 3, 2017, and his amended appeal must address all of the
following issues:
1)

whether there was good cause for Plaintiff’s failure to file
a timely appeal of the magistrate judge’s order and/or oral
rulings on the Motion to Compel;

2)

what specific portion of the magistrate judge’s order
granting the Motion to Compel or what specific portion of
8

the magistrate judge’s oral rulings he is appealing; and
3)

what is the factual and/or legal basis for Plaintiff’s
appeal of the magistrate judge’s order and/or oral rulings.

This Court EMPHASIZES that it will not consider Plaintiff’s
appeal if he fails to file his amended appeal by March 3, 2017,
and this Court will not consider the merits of Plaintiff’s appeal
if he cannot establish good cause for his failure to file a
timely appeal.

After reviewing Plaintiff’s amended appeal, this

Court will notify Kraus if it is necessary for him to file a
response.
CONCLUSION
On the basis of the foregoing, the portion of
Plaintiff’s February 13, 2017 motion seeking reconsideration of
this Court’s 1/27/17 Order is HEREBY DENIED, and the portion of
Plaintiff’s February 13, 2017 motion attempting to appeal the
magistrate judge’s order and/or oral rulings regarding Kraus’s
Motion to Compel is HEREBY DENIED WITHOUT PREJUDICE.

If

Plaintiff chooses to do so, he may file an amended appeal by
March 3, 2017.

Plaintiff’s amended appeal must comply with the

requirements described in this Order.
There being no remaining claims against the County
Defendants, this Court DIRECTS the Clerk’s Office to terminate
them as parties immediately.
IT IS SO ORDERED.

9

DATED AT HONOLULU, HAWAII, February 17, 2017.

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

CHRISTOPHER YOUNG VS. MICHAEL M. KRAUS, ETC., ET AL.; CIVIL 1500383 LEK-KSC; ORDER DENYING THE PORTION OF PLAINTIFF’S MOTION
SEEKING RECONSIDERATION OF THIS COURT’S JANUARY 27, 2017 ORDER
AND DENYING WITHOUT PREJUDICE THE PORTION OF THE MOTION
ATTEMPTING TO APPEAL THE ORDER OR RULINGS ISSUED BY THE
MAGISTRATE JUDGE

10