Rohr v. Crime Victims Compensation Commission

Filing 160

ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT re 154 , 158 - Signed by JUDGE LESLIE E. KOBAYASHI on 12/10/2019. (emt, )COURT'S CERTIFICATE of Service - Claudia Rohr shall be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on December 10, 2019. Registered Participants of CM/ECF received the order electronically to the email addresses listed on the Notice of Electronic Filing (NEF).

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII

CLAUDIA ROHR,

CIV. NO. 16-00162 LEK-RT
Plaintiff,

vs.
CRIME VICTIMS COMPENSATION
COMMISSION, OF THE STATE OF
HAWAI'I;
Defendant.

ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT
On July 22, 2019, the Court issued the Order:
1) Granting Defendant’s Second Motion for Summary Judgment; and
2) Denying Plaintiff’s Motion for Summary Judgment (“7/22/19
Order”).

[Dkt. no. 150.]

On August 19, 2019, pro se Plaintiff

Claudia Rohr (“Plaintiff”) filed a motion for reconsideration of
the 7/22/19 Order, which was denied in an entering order issued
on August 27, 2019 (“8/27/19 EO”).

[Dkt. nos. 152.]

Also on

August 27, the Judgment in a Civil Case (“Judgment”) was
entered, pursuant to the 7/22/19 Order and the 8/27/19 EO.
Before the Court is Plaintiff’s Motion for Relief from
Judgment (“Motion”), filed on September 24, 2019.
no. 154.]

[Dkt.

Defendant Crime Victims Compensation Commission of

the State of Hawai`i (“Defendant” or “Commission”) filed its
memorandum in opposition on October 8, 2019, and Plaintiff filed

her reply on October 22, 2019.

[Dkt. nos. 156, 157.]

On

November 5, 2019, Plaintiff filed a document that is titled as a
motion, but, for the reasons set forth below, is construed as a
supplemental memorandum in support of the Motion.
no. 158.]

[Dkt.

The Court has considered the Motion as a non-hearing

matter pursuant to Rule LR7.1(d) of the Local Rules of Practice
for the United States District Court for the District of Hawaii
(“Local Rules”).

Plaintiff’s Motion is hereby denied for the

reasons set forth below.
BACKGROUND
The relevant factual and procedural history of this
case is set forth in the 7/22/19 Order, and only the portions
that are relevant to the instant Motion will be repeated here.
Plaintiff’s Amended Complaint, [filed 6/6/16 (dkt. no. 14),]
alleged a single claim – violation of Title II, Part A of the
Americans with Disabilities Act of 1990 (“ADA”), as amended by
the Americans with Disabilities Amendments Act of 2008
(“ADAAA”), 42 U.S.C. §§ 12131-34, and its implementing
regulations, 28 C.F.R. Part 35 (“Title II Claim”).

Plaintiff

brought her claim as the sole beneficiary on behalf of her
deceased husband, Scott Leland Andrews (“Andrews”).

[7/22/19

Order at 2-3 & n.2.]
Plaintiff’s Title II Claim arises from two
applications for benefits that Andrews submitted to the
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Commission, one related to an April 21, 2008 assault, and one
related to a December 12, 2008 assault.

In Case Number 09-0857,

the Commission denied the April 21 application as untimely
(“Case 857”), and, in Case Number 09-0858, the Commission voted
to pay Andrews’s medical bills that were submitted with the
December 12 application (“Case 858”).

Andrews appealed both of

the Commission’s decisions through the state courts, but the
appeals were ultimately unsuccessful.

[Id. at 4-6.]

While

Andrews’s appeals were pending, Plaintiff wrote letters to the
Commission, arguing that, in both application processes and
cases, the Commission discriminated against Andrews based on his
disability.

Plaintiff requested accommodations and/or

modifications to the Commission’s procedures, including the
reopening of Andrews’s cases.

The Commission declined to act

upon the letters, responding that the issues Plaintiff
identified were previously considered by the Commission and the
state courts.

[Id. at 6-8.]

In the instant case, Plaintiff argued the Commission
discriminated against Andrews based on his disability when it
denied the application in Case 857 and when it reduced the
benefits that it initially approved in Case 858.

[Id. at 8-9.]

In the 7/22/19 Order, this Court ruled that, applying either the
ADA’s two-year statute of limitations or the ADAAA’s four-year
statute of limitations, the portion of the Title II Claim based
3

on the Commission’s denial in Case 857 was timed-barred.1
at 20.]

This Court also ruled that the portion of the Title II

Claim arising from Case 858 accrued as of August 5, 2011.
at 26.]

[Id.

[Id.

Plaintiff’s equitable tolling and continuing violation

arguments were rejected as to both cases, and summary judgment
was granted in favor of Defendant on the ground that Plaintiff’s
Title II Claim was time-barred.

[Id. at 28-30.]

Even if

Plaintiff’s Title II Claim was timely, summary judgment still
would have been granted in favor of Defendant because of a lack
of subject matter jurisdiction, pursuant to the Rooker-Feldman
doctrine.2

[Id. at 30-34.]
In the instant Motion, Plaintiff seeks relief from the

Judgment because of the following alleged errors in the 7/22/19
Order: 1) the Court erred in basing its time-bar analysis on
Andrews’s August 5, 2011 appeal of the Commission’s decision and
order in Case 857 (“Case 857 Decision”) because the decision was
not part of the summary judgment record in this case; 2) the
Court ignored Plaintiff’s evidence of bias on behalf of the

1

Because Defendant did not submit evidence addressing
whether the ADA or the ADAAA applied, the 7/22/19 Order
ultimately did not rule upon which statute of limitations
applied. [7/22/19 Order at 14-15.]
2

The Rooker-Feldman doctrine was established by the United
States Supreme Court in Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923), and D.C. Court of Appeals v. Feldman, 460 U.S. 462
(1983).
4

Commission’s investigator in Case 858; 3) the Court erred in
ruling that Plaintiff’s claims were time-barred because the sixyear statute of limitations applied because of fraudulent
concealment, pursuant to Haw. Rev. Stat. § 657-20; and 4) the
Rooker-Feldman doctrine did not apply in this case because
Plaintiff did not seek to undo any state court judgment.
STANDARD
Plaintiff brings the instant Motion pursuant to Fed.
R. Civ. P. 60(b)(1), which states: “On motion and just terms,
the court may relieve a party or its legal representative from a
final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect[.]”
This district court has recognized that “[r]econsideration
pursuant to Rule 60 is generally appropriate upon a showing of
one of three grounds: (1) the availability of new evidence;
(2) an intervening change in controlling law; and (3) the need
to correct clear error or prevent manifest injustice.”

Ferretti

v. Beach Club Maui, Inc., Civ. No. 18-00012 JMS-RLP, 2018 WL
3672741, at *1 (D. Hawai`i Aug. 2, 2018) (citing Sch. Dist.
No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
Cir. 1993)).

The Motion does not identify any newly available

evidence nor any intervening changes in the law.

Therefore, the

only issues before this Court are whether there was clear error

5

in the 7/22/19 Order and whether the 7/22/19 Order was
manifestly unjust.
DISCUSSION
I.

Plaintiff’s Second Motion for Relief from Judgment
On November 5, 2019, Plaintiff filed a document titled

“Second Motion for Relief from Judgment.”

[Dkt. no. 158.]

On

November 8, 2019, an entering order was issued, stating the
merits of that motion would not be considered until after the
instant Motion was resolved.

[Dkt. no. 159.]

However, upon

further review, the Court finds that Plaintiff’s November 5
filing is not a motion for separate relief, but a supplemental
memorandum in support of the instant Motion.

Plaintiff’s

November 5 filing also addresses the statute of limitations
issues that are addressed in the instant Motion.

The Court

finds that it is unnecessary for Defendant to file a response to
the supplemental memorandum.
The Clerk’s Office is HEREBY DIRECTED to revise the
docket entry for Plaintiff’s November 5 filing to reflect that
it is not a motion, but a supplemental memorandum in support of
the instant Motion.
II.

Arguments Related to Timeliness
First, Plaintiff contends this Court erred in finding

that Andrews’s filing of an appeal on August 5, 2011 from the
Case 857 Decision was evidence that he had notice of the injury
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asserted in the portion the Title II Claim based on Case 857.
See 7/22/19 Order at 18-20.

Plaintiff asserts it was improper

for this Court to make such a finding without reviewing the
Case 857 Decision, which is not in the record of this case.
Plaintiff’s argument is misplaced because the analysis of
whether Andrews knew or had reason to know of the basis for the
portion of the Title II Claim related to Case 857 is not
dependent upon the specific language contained within the
Case 857 Decision.

It was apparent from Andrews’s filing of a

state court appeal from the Case 857 Decision that he was aware
of the denial of benefits and the lack of accommodation in the
application and review process for his disability.
16-17.

See id. at

Thus, it was not necessary for this Court to consider

the Case 857 Decision itself to determine whether the portion of
Plaintiff’s Title II Claim related to Case 857 was time-barred.
To the extent that Plaintiff disagrees with the analysis in the
7/22/19 Order, her disagreement is an insufficient basis to
grant relief under Rule 60(b).

See Ferretti, 2018 WL 3672741,

at *2 (citing Haw. Stevedores, Inc. v. HT & T Co., 363 F. Supp.
2d 1253, 1269 (D. Haw. 2005)).

Plaintiff’s Motion is therefore

denied as to her argument regarding the absence of the Case 857
Decision from the summary judgment record.
Plaintiff also argues this Court erred in ruling that
the Title II Claim was time-barred because a six-year statute of
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limitations applied, based on Defendant’s fraudulent concealment
of documents that were under seal in the proceedings before the
Commission and during much of the state court appellate process.
Plaintiff did not raise this argument in the filings related to
the parties’ summary judgment motions.

See generally Pltf.’s

Motion for Summary Judgment, filed 3/8/19 (dkt. no. 137);
Pltf.’s mem. in opp. to Def.’s motion for summary judgment,
filed 3/25/19 (dkt. no. 143); Pltf.’s reply in supp. of her
motion, filed 4/11/19 (dkt. no. 144).

Thus, it is improper for

Plaintiff to now seek relief from the Judgment, i.e.
reconsideration of the 7/22/19 Order, on the basis of fraudulent
concealment.

See 8/27/19 EO at 1 (citing Bank of Am., N.A. v.

Goldberg, CIV. NO. 19-00076 LEK-KJM, 2019 WL 2374870, at *3 (D.
Hawai`i June 5, 2019) (“reconsideration may not be based on
evidence and legal arguments that a movant could have presented
at the time of the challenged decision”)).
Even if the merits of Plaintiff’s fraudulent
concealment argument were considered, the argument would fail.
Section 657-20 states:
If any person who is liable to any of the actions
mentioned in this part or section 663-3,
fraudulently conceals the existence of the cause
of action or the identity of any person who is
liable for the claim from the knowledge of the
person entitled to bring the action, the action
may be commenced at any time within six years
after the person who is entitled to bring the
same discovers or should have discovered, the
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existence of the cause of action or the identity
of the person who is liable for the claim,
although the action would otherwise be barred by
the period of limitations.
As noted in the 7/22/19 Order, if Plaintiff’s Title II Claim
arose under the ADA, the two-year statute of limitations in Haw.
Rev. Stat. § 657-7 would have applied, but, if Plaintiff’s claim
arose under the ADAAA, the four-year statute of limitations in
28 U.S.C. § 1658(a) would have applied.

[7/22/19 Order at 14-

15.]
If the § 657-7 limitations period applied, it arguably
could have been extended to six years under § 657-20, if there
was fraudulent concealment.

“Fraudulent concealment has been

defined as employment of artifice, planned to prevent inquiry or
escape investigation, and misled or hinder acquirement of
information disclosing a right of action.

The acts relied on

must be of an affirmative character and fraudulent.”

Au v. Au,

63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (citation and
internal quotation marks omitted).

This district court has

stated that, under Hawai`i law,
there can be no fraudulent concealment if there
is a “known cause of action.” See Mroz v.
Hoaloha Na Eha, Inc., 360 F. Supp. 2d 1122, 1129
(D. Haw. 2005) (“If there is a known cause of
action there can be no fraudulent
concealment[.]”). Moreover,
It is not necessary that a party should know
the details of the evidence by which to
establish his cause of action. It is enough
9

that he knows that a cause of action exists
in his favor, and when he has this
knowledge, it is his own fault if he does
not avail himself of those means which the
law provides for prosecuting or preserving
his claim.
Mroz, 360 F. Supp. 2d at 1129 (internal quotation
marks and citation omitted).
Moddha Interactive, Inc. v. Philips Elec. N. Am. Corp., 92 F.
Supp. 3d 982, 996 (D. Hawai`i 2015) (alteration in Moddha
Interactive) (emphasis added), aff’d sub nom., 654 F. App’x 484
(Fed. Cir. 2016).

Because this Court has ruled that Andrews

knew or should have known about the basis for the portion of the
Title II Claim related to Case 857 by August 5, 2011, he had a
“known cause of action” at that time, and therefore the state
law fraudulent concealment doctrine does not apply.

See Mroz,

360 F. Supp .2d at 1129.
If the § 1658(a) limitations period applied, it
arguably could have been extended if there was fraudulent
concealment.

See Thorman v. Am. Seafoods Co., 421 F.3d 1090,

1094 (9th Cir. 2005) (“To establish fraudulent concealment, [the
plaintiff] carries the burden of proving that (1) [the
defendant] affirmatively misled him as to the operative facts
that gave rise to his claim, and (2) [the plaintiff] had neither
actual nor constructive knowledge of these operative facts
despite his diligence in trying to uncover them.” (footnote,
citation, and internal quotation marks omitted)).
10

Because

Andrews had actual or constructive notice of the factual basis
for the portion of the Title II Claim related to Case 857 by
August 5, 2011, the federal law fraudulent concealment doctrine
does not apply.
Because there was no factual basis to support the
extension of either statute of limitations period based on
fraudulent concealment, Plaintiff’s Motion is denied as to her
fraudulent concealment argument.
II.

Rooker-Feldman Analysis
Plaintiff argues this Court erred in ruling that the

Rooker-Feldman doctrine deprived it of subject matter
jurisdiction because the Title II Claim did not seek to undo any
state court judgment.

In the 7/22/19 Order, this Court found

that Plaintiff’s Title II Claim sought review of the
Commission’s decisions in Case 857 and Case 858 so that
Plaintiff could obtain different results than what was achieved
in the state court review process.

[7/22/19 Order at 33.]

Plaintiff merely disagrees with this Court’s analysis and, as
previously stated, her disagreement is insufficient to warrant
Rule 60(b) relief.

Plaintiff’s Motion is therefore denied as to

her Rooker-Feldman argument.
III. Remaining Argument and Summary
Finally, Plaintiff objects to the 7/22/19 Order’s
failure to address evidence which she contends shows that the
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Commission’s investigator was biased.

Because this Court

concluded that Defendant was entitled to summary judgment based
on time-bar and the Rooker-Feldman doctrine, the 7/22/19 Order
did not address any evidence regarding whether or not Andrews
was discriminated against based on his disability in connection
with: his applications; the Commission’s proceedings and rulings
action upon those applications; or the state court review of the
Commission’s decisions.

This Court has rejected the Motion’s

arguments regarding the time-bar analysis and the Rooker-Feldman
analysis.

Therefore, the 7/22/19 Order’s lack of discussion

regarding Plaintiff’s alleged evidence of bias was neither a
clear error nor was it a manifest injustice.

Plaintiff’s Motion

is denied as to her argument that this Court should have
considered her alleged evidence of the investigator’s bias.
The Motion does not establish that there was a clear
error in the 7/22/19 Order, nor does the Motion establish that
reconsideration of the 7/22/19 Order is necessary to prevent
manifest injustice.

Plaintiff therefore is not entitled to

Rule 60(b) relief from the Judgment.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Relief from Judgment, filed September 24, 2019, is HEREBY
DENIED.
IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAI`I, December 10, 2019.

CLADIA RHOR VS. CRIME VICTIMS COMPENSATION COMMISSION, OF THE
STATE OF HAWAI`I; CV 16-00162 LEK-RT; ORDER DENYING PLAINTIFF'S
MOTION FOR RELIEF FROM JUDGMENT

13