Salem v. Arakawa
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF DISTRICT COURT ORDER OF JAN 20TH 2017 AND ORDER OF MAY 3, 2017 ACCEPTING MAGISTRATE JUDGE FINDINGS AND RECOMMENDATIONS re 207 Motion for Reconsideration ; re 216 Motion for Joinder . Signed by JUDGE LESLIE E. KOBAYASHI on 07/26/2017. (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). Participants not registered to receive electronic notifications served by first class mail on July 27, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ALAN ARAKAWA, individually
and in his official capacity )
as MAYOR OF THE COUNTY OF
MAUI; et al.,
CIVIL 15-00384 LEK-KSC
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF DISTRICT
COURT ORDER OF JAN 20TH 2017 AND ORDER OF MAY 3, 2017 ACCEPTING
MAGISTRATE JUDGE FINDINGS AND RECOMMENDATIONS
Before the Court is pro se Plaintiff Christopher
Salem’s (“Plaintiff”) Motion for Reconsideration of District
Court Order of Jan 20th 2017 and Order of May 3, 2017 Accepting
Magistrate Judge Findings and Recommendations (“Motion for
Reconsideration”), filed on May 23, 2017.
[Dkt. no. 207.]
Defendants Alan Arakawa, Patrick Wong, Keith Regan, David Goode,
Milton Arakawa, William Spence, John Minn, and Jeffrey Hunt, all
in their individual capacities (collectively “Individual
Defendants”), filed their memorandum in opposition on June 5,
[Dkt. no. 210.]
On June 13, 2017, Defendants County of
Maui, Mayor Alan Arakawa, Corporation Counsel Patrick Wong,
former Director of the Department of Finance Keith Regan,
Director of Public Works David Goode, former Director of Public
Works Milton Arakawa, Director of the Department of Planning
William Spence, former Director of the Department of Planning
John Minn, and former Director of the Department of Planning
Jeffrey Hunt, all in their official capacities (collectively
“County Defendants”) filed a joinder to the Individual
Defendants’ memorandum in opposition to the Motion for
[Dkt. no. 216.]
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
Plaintiff’s Motion for Reconsideration and the County
Defendants’ Joinder are denied for the reasons set forth below.
The background of this matter is well known to the
parties, and the Court will only repeat the information that is
relevant to the instant motion.
In its Order Dismissing Case
With Prejudice, filed on May 3, 2017 (“5/3/17 Order”), the Court
dismissed all of the remaining claims in this case with
prejudice, and directed the Clerk’s Office to enter final
judgment and close this case on May 24, 2017, unless Plaintiff
filed a motion for reconsideration by May 22, 2017.
201 at 6-7.]
The Motion for Reconsideration seeks reconsideration of
the 5/3/17 Order because:
(1) the magistrate judge’s order filed
on December 20, 2016 (“12/20/16 Order”), [dkt. no. 163,] was the
result of manifest error of law and fact; [Motion for
Reconsideration at 7-17;] (2) Plaintiff has newly discovered
evidence; [id. at 17-18;] and (3) the magistrate judge allegedly
treated Plaintiff unfairly and the Court must “prevent manifest
injustice” [id. at 18-19].
The Court will address each of these
arguments in turn.
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
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,
Motion for Joinder
In an Entering Order filed on June 6, 2017 (“6/6/17
EO”), the Court noted that it would consider the Motion for
Reconsideration without a hearing, the Individual Defendants had
filed a memorandum in opposition to the Motion for
Reconsideration, and no further briefing would be accepted.
[Dkt. no. 212.]
A week later, the County Defendants filed their
Given the Court’s explicit instructions in the 6/6/17
EO, the Joinder is denied and will not be considered by the Court
in ruling on the Motion for Reconsideration.
Timeliness of the Motion for Reconsideration
While Plaintiff was represented by counsel during the
majority of this case, on March 16, 2017, Plaintiff informed the
Court that his counsel, Burton D. Gould, Esq., passed away on
March 11, 2017.
[Dkt. no. 191.]
As such, Plaintiff is
proceeding pro se, and the Court must construe his filings
See Bernhardt v. Los Angeles Cty., 339 F.3d 920, 925
(9th Cir. 2003) (“Courts have a duty to construe pro se pleadings
liberally, including pro se motions as well as complaints.” (some
citations omitted) (citing Zichko v. Idaho, 247 F.3d 1015, 1020
(9th Cir. 2001))).
The 5/3/17 Order informed Plaintiff that his
deadline to file a motion for reconsideration was May 22, 2017,
but Plaintiff did not file the instant motion until May 23, 2017.
The Motion for Reconsideration is therefore untimely.
v. Hawai`i, Civil No. 13-00159 LEK-KSC, 2013 WL 6572575, at *1
n.2 (D. Hawai`i Dec. 13, 2013) (“This Court recognizes that [the
p]laintiffs are proceeding pro se and that they live on Island of
[The p]laintiffs’ pro se status, however, does not
excuse them from complying with court rules and deadlines.
p]laintiffs are therefore responsible for mailing each filing to
the district court far enough before the deadline so that the
Clerk’s Office will receive and file the document on or before
the filing deadline.” (citation omitted)).
Given the special
circumstances in this case, the limited time Plaintiff has been
pro se, and because the delay did not prejudice either the
Individual Defendants or the County Defendants, the Court will
consider the Motion for Reconsideration.1
III. The 12/20/16 Order
The majority of the Motion for Reconsideration seeks
the Court’s review of the 12/20/16 Order.
Local Rule 74.2
states, in relevant part:
Plaintiff purports to bring the Motion for Reconsideration
pursuant to Fed. R. Civ. P. 59(e). [Motion for Reconsideration
at 3.] In an Entering Order filed on February 16, 2017 (“2/16/17
EO”), the Court explained that, “[Fed. R. Civ. P.] 59(e) states
that ‘[a] motion to alter or amend a judgment must be filed no
later than 28 days after the entry of the judgment.’ Judgment
has not been entered in this case.” [Dkt. no. 180.] Judgment
has still not been entered in this case. However, because of
Plaintiff’s pro se status, and for the sake of judicial
efficiency, the Court will liberally construe the Motion for
Reconsideration as filed pursuant to Fed. R. Civ. P. 60(b).
Any party may object to a magistrate judge’s case
dispositive order, findings, or recommendations
. . . within (14) days after being served with a
copy of the magistrate judge’s order, findings, or
recommendations. Any party may move for
reconsideration before the magistrate judge
pursuant to LR60.1. A reconsideration motion
shall toll the time in which objections must be
filed to the magistrate judge’s order, findings,
or recommendations; objections must be filed and
served within fourteen (14) days from entry of the
order disposing of the reconsideration motion.
The objecting party shall file with the clerk, and
serve on the magistrate judge and all parties,
written objections that specifically identify the
portions of the order, findings, or
recommendations to which objection is made and the
basis for such objections. . . . A district judge
shall make a de novo determination of those
portions of the report or specified findings or
recommendations to which objection is made and may
accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
The Court adopted the 12/20/16 Order as its opinion and order on
January 20, 2017 (“1/20/17 Order”).
[Dkt. no. 169.]
2/16/17 EO, the Court explained:
Plaintiff seeks clarification of the 12/20/16
Order from this Court. Any question about or
disagreement with the 12/20/16 Order should have
been brought in a motion for reconsideration or an
appeal to this Court. See Local Rule LR74.1.
While Plaintiff did file a motion for
reconsideration on January 20, 2017 (“1/20/17
Motion for Reconsideration”), it was denied by the
magistrate judge because it was untimely. [Dkt.
nos. 171 (1/20/17 Motion for Reconsideration), 172
(denial of the 1/20/17 Motion for
Reconsideration).] Plaintiff did not appeal the
magistrate judge’s denial of the 1/20/17 Motion
for Reconsideration to this Court. Any discussion
of the 12/20/16 Order here is irrelevant and
[2/16/17 EO at 2.]
Moreover, in an entering Order filed on February 24,
2017 (“2/24/17 EO”), [dkt. no. 187,] the Court reiterated its
ruling on this matter:
Further, and as noted in the 2/16/17 EO, on
December 20, 201, the magistrate judge filed
his (1) Order Granting Plaintiff Christopher
Salem’s Motion for Leave to File a Supplemental
Addendum to Proposed First Amended Complaint
Exhibit “A” in Plaintiff Salem’s Second Motion for
Leave et al.; and (2) Findings and Recommendation
to Deny Plaintiff Christopher Salem’s Motion for
Leave to File a First Amended Complaint, filed on
December 20, 2016 (“12/20/16 Order”). [Dkt. no.
163.] On January 20, 2017, Plaintiff filed a
motion for reconsideration of the 12/20/16 Order
(“1/20/17 Motion for Reconsideration”), which, on
January 24, 2017, the magistrate judge denied as
untimely (“1/24/17 Order”). [Dkt. nos. 171
(1/20/17 Motion for Reconsideration), 172 (1/24/17
Order).] Plaintiff did not appeal the 1/24/17
Order to this Court. Even if the Court were to
consider the instant motion as an appeal brought
pursuant to Local Rule 74.1, the deadline for any
such appeal has passed. See Local Rule LR74.1
. . . . Accordingly, the 2/17/17 Motion for
Reconsideration is HEREBY DENIED.
[2/24/17 EO at 1-2.]
The Court has repeatedly informed Plaintiff that any
discussion or challenge to the 12/20/16 Order is untimely and
Moreover, it is undisputed that, at the time that the
12/20/16 Order, 1/20/17 Order, 2/16/17 EO, and 2/24/17 EO were
The 2/17/17 Motion for Reconsideration refers to
Plaintiff’s Motion for Reconsideration of District Court Order of
Jan 20th, 2017, Pursuant to FRCP Rule 59(e), Accepting Magistrate
Judge’s Findings and Recommendations, filed on February 17, 2017.
[Dkt. no. 181.]
filed, Plaintiff was represented by counsel.
Finally, the 5/3/17
Order was not based upon the 12/20/16 Order, and any argument
stating otherwise is incorrect and irrelevant.
To the extent
that the Motion for Reconsideration seeks review of the 12/20/16
Order, it must be denied.
Newly Discovered Evidence
Plaintiff alleges that the Motion for Reconsideration
should be granted because of newly discovered evidence, namely:
Shoreline Management Area (“SMA”) permit documents, received in
November 2015 (“SMA Documents”); and “[c]ounty documents” that
show “the open, expired, and unfulfilled SMA permit had been
closed by some unknown [c]ounty official” that Plaintiff received
after filing his second motion for leave to file an amended
complaint (“County Documents”).
[Motion for Reconsideration at
This district court has stated:
Under Rule 60(b)(2),
[r]elief from judgment on the basis of newly
discovered evidence is warranted if (1) the
moving party can show the evidence relied on
in fact constitutes “newly discovered
evidence” within the meaning of Rule 60(b);
(2) the moving party exercised due [or
reasonable] diligence to discover this
evidence; and (3) the newly discovered
evidence must be of “such magnitude that
production of it earlier would have been
likely to change the disposition of the
Feature Realty, Inc. v. City of Spokane, 331 F.3d
1082, 1093 (9th Cir. 2003) (quoting Coastal
Transfer Co. v. Toyota Motor Sales, U.S.A., Inc.,
833 F.2d 208, 211 (9th Cir. 1987)). Rule
60(b)(2), as amended in 2007, requires “reasonable
diligence” (instead of “due diligence”) for newly
discovered evidence. The change, however, was
“intended to be stylistic only.” See Cole v.
Hawaii, 2008 WL 508075, at *1 n.2 (D. Haw.
Feb. 26, 2008).
Tagupa v. Vipdesk, Inc., CIV. NO. 13-00428 JMS-KSC, 2016 WL
236210, at *2 n.2 (D. Hawai`i Jan. 19, 2016) (some alterations in
The SMA Documents are not newly discovered evidence.
Between November 2015 and the present, Plaintiff has filed
numerous motions and memoranda, including two motions for leave
to file an amended complaint.
See Plaintiff’s Motion for Leave
to File a First Amended Complaint (“First Motion for Leave”),
filed 4/25/16 (dkt. no. 88); Plaintiff’s Second Motion for Leave
to File a First Amended Complaint (“Second Motion for Leave”),
filed 8/22/16 (dkt. no. 122).
Plaintiff could have included the
County Documents in numerous motions and other filings.
extent that the Motion for Reconsideration is based upon newly
discovered evidence, it must be denied.3
In a separate part of the Motion for Reconsideration,
Plaintiff alleges “newly discovered” evidence about issues
related to how the Individual Defendants’ counsel was retained
and the magistrate judge’s former employer. [Motion for
Reconsideration at 5.] These allegations are conclusory and
frivolous, and the only support Plaintiff provides for them are
equally conclusory and frivolous arguments in a separate filing
with the Court. See Motion for Leave to Supplement Deceased
Attorney Burton D. Gould’s Opposition to Defendants in Their
Plaintiff’s manifest injustice argument is based solely
on his disagreement with the 12/20/16 Order.
The Court has
already stated that the 12/20/16 Order is irrelevant to the
See supra Section III.
Moreover, there was no manifest injustice in this case.
As the magistrate judge explained in an order field on May 31,
2017 (“5/31/17 Order”) [dkt. no. 209]:
Plaintiff’s inability to produce a legally
sufficient complaint has delayed and disrupted the
litigation of this case. From the outset,
Plaintiff’s complaint did not comply with the
[Federal Rules], and it contained incomprehensible
and meandering statements that both the district
court and this Court found unintelligible.
Despite being given ample time to amend this
original “shot gun” pleading, Plaintiff failed to
make any meaningful changes and instead, added
even more claims to the Complaint. This Court
then gave Plaintiff two additional opportunities
to amend the Complaint, even permitting Plaintiff
leave to “supplement,” i.e., add additional claims
even though (1) he had already submitted his
Second Motion for Leave, (2) the Court had held
the hearing on the Second Motion for Leave, and
(3) this Court had warned him . . . that another
failure to cure the deficiencies in his pleading
would result in this Court’s recommendation to
dismiss the entire complaint with prejudice.
[5/31/17 Order at 10.]
While Plaintiff’s former counsel was
responsible for most of these filings, that does not change the
Individual Capacities and Joinder for Attorney Fees, filed
4/28/17 (dkt. no. 199). Baseless allegations against opposing
counsel and a well-respected judge do not provide grounds for
granting the instant motion.
fact that Plaintiff was provided with more than ample opportunity
to produce a complaint that complies with the Federal Rules.
Neither this Court nor the magistrate judge are responsible for
his failure to do so.
Plaintiff has failed to provide any reason
for the Court to grant the Motion for Reconsideration, and it is
On the basis of the foregoing, pro se Plaintiff
Christopher Salem’s Motion for Reconsideration of District Court
Order of Jan 20th 2017 and Order of May 3, 2017 Accepting
Magistrate Judge Findings and Recommendations, filed on May 23,
2017, is HEREBY DENIED.
Further, the County Defendants’ Joinder
to the Individual Defendants’ memorandum in opposition to the
Motion for Reconsideration, filed on June 13, 2017, is also
The Court DIRECTS the Clerk’s Office to enter final
judgment and close this case immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 26, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
CHRISTOPHER SALEM VS. ALAN ARAKAWA, ETC., ET AL; CIVIL 15-00384
LEK-KJM; ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF
DISTRICT COURT ORDER OF JAN 20TH 2017 AND ORDER OF MAY 3, 2017
ACCEPTING MAGISTRATE JUDGE FINDINGS AND RECOMMENDATION
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