Lee v. Field
ORDER DENYING APPELLANT'S MOTION TO ALTER OR AMEND JUDGMENT UNTIL TRIAL IS HELD AND FOR RELIEF FROM A JUDGMENT OR ORDER re 10 - Signed by JUDGE SUSAN OKI MOLLWAY on 10/12/2016. (emt, )CERTIFICATE OF SERVICE< /center>Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Adam Lee served by first class mail at the address of record on October 12, 2016.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DANE S. FIELD,
CIV. NO. 16-00295 SOM
ORDER DENYING APPELLANT’S
MOTION TO ALTER OR AMEND
JUDGMENT UNTIL TRIAL IS HELD
AND FOR RELIEF FROM A
JUDGMENT OR ORDER
ORDER DENYING APPELLANT’S MOTION TO ALTER OR AMEND JUDGMENT
UNTIL TRIAL IS HELD AND FOR RELIEF FROM A JUDGMENT OR ORDER
Before this court is a motion brought by Appellant
Adam Lee seeking relief from the judgment entered on September
This court denies the motion, setting forth its
On June 7, 2016, Lee, who is proceeding pro se, filed
appeals with this court from two Bankruptcy Court orders.
ECF No. 1.
On July 18, 2016, the Certificate of Readiness was
See ECF No. 6.
This court notes that Lee’s bankruptcy proceedings
have generated a string of appeals, the present appeal being the
last in that string.
See Civil Nos. 15-00100; 15-00278; 15-
00472; 15-00490; 15-00491; 16-00295.
On July 28, 2016, this court issued a minute order
scheduling the hearing in this bankruptcy appeal for October 24,
2016, at 9:00 a.m.
See ECF No.7.
The minute order also stated,
“Appellant’s Opening Brief shall be filed and served no later
than August 31, 2016.
Failure to file a timely Opening Brief
will result in the automatic dismissal of the appeal.
Appellee’s Responsive Brief shall be filed and served no later
than September 28, 2016.”
This minute order was served
on Lee by regular United States mail.
On September 23, 2016, the court issued another minute
order noting that Lee had not filed an Opening Brief.
The minute order stated, “Rather than automatically
dismissing the appeal, the court attempted to contact the
Appellant to determine whether he intended to pursue the appeal.
Having left four telephone messages requesting that the
Appellant contact the court and having received no response from
Appellant, the court dismisses the appeal and directs the Clerk
of Court to enter judgment against Appellant Adam Lee and to
close this case.”
to the minute order.
Judgment was then entered pursuant
See ECF No. 9.
Lee now seeks relief from the judgment pursuant to
Rule 59(e) and Rule 60(b)(1) of the Federal Rules of Civil
Lee contends that he “provided his email address as
the primary form of contact for the case and was told by the
court when filing that emails will be sent with all things
related to the case.”
He further states that he has been
contacted via email in “all previous interactions” with the
bankruptcy court and this court, and he reasons that it was
reasonable for him to have expected to have been contacted by
email for the present appeal.
The court’s records do not include any indication that
Lee was to receive all notification by email.
Lee was required
to provide his email address by Local Rule 10.2(b), which states
that any document submitted for filing must include the filer’s
name, Hawaii bar identification number (when applicable),
address, telephone number, facsimile number, and “e-mail address
of counsel (or, if pro se, of the party).”
The email address is
used by the court for sending materials via the court’s
Electronic Case Filing system to registered users in the ECF
system and sometimes for scheduling hearings.
Lee is not and
has not ever been a registered user of this court’s Electronic
Case Filing system.
Nothing in this court’s rules provides that the
listing of an email address automatically entitles a person to
receive communications by email.
In fact, this court has not
identified any member of this court’s staff who is aware of any
representation to Lee that he would receive emailed
notifications from the court.
If Lee was told by court staff at
the time he filed his appeal that notifications would be emailed
to him, court staff may have thought Lee was an attorney.
However, this court questions whether court staff told Lee
anything at all about emails when he filed his appeal, because
this appeal was initiated in this court by a notice sent to this
court by the Bankruptcy Appellate Panel.
The BAP transferred
this matter to the district court upon receiving Lee’s election
to proceed in the district court.
Far from filing his appeal
with this court (when he says he was assured he would receive
emails from the court), Lee filed his appeal with the Bankruptcy
Court, and it was the BAP that sent his notice of appeal to the
There was therefore no need for Lee to
communicate with this court’s staff at the time he filed his
In the present appeal, Lee, as is typical for pro se
parties and other persons who are not registered ECF users, has
been receiving materials from the court through the United
States Postal Service.
This has been clearly reflected in the
court’s Notifications of Electronic Filing.
1 to 3, 5 to 9.
See, e.g., ECF Nos.
Thus, Lee has been sent the court’s minute
orders via first-class mail.
Notably, he never denies that this
court has sent him notifications by first-class mail to the
address on file.
If he thought he would receive electronic
communications from this court, it may have been because the
attorneys who represented him in earlier appeals were registered
to receive electronic notifications, and those attorneys may
have forwarded materials to him electronically.
In the present
appeal, receipt of hard copies in the mail should have made him
aware that email was not the way this court was communicating
with him in his pro se appeal.
If he has been ignoring the hard
copies sent to him by first-class mail, he has done so at his
This court is particularly concerned that Lee claims
that court staff assumed he was receiving notifications from the
court by email.
This is inconsistent with this court’s
understanding of his conversations with court personnel and with
Lee asserts, “The Appellant and Clerk called each
other back several times before reaching each other and having
all questions answered.
The Clerk thought that the Appellant
was receiving emails regarding the case also but then checked
and called Appellant back, verifying that the Appellant did not
receive any emails regarding the case.”
Lee says this
establishes that he was the victim of “miscommunication.”
If Lee is referring to telephone calls that all
occurred on September 23, 2016, after judgment had been entered
earlier that day, this court’s understanding of what was said by
court staff on that day differs greatly from Lee’s description.
In the first place, by September 23, the deadline for Lee’s
Opening Brief had passed, so anything said on September 23 could
not have been relied on by Lee as a reason for missing his
In the second place, by September 23, court
staff had left four telephone messages asking Lee to contact the
Only after receiving no response from Lee and after
entering judgment against Lee did the court finally hear from
Lee says that he and court staff had to call each
other back several times “before all reaching each other.”
Court staff reports, by contrast, that when Lee called on
September 23, he left his name and number with court staff, who
turned that information over to someone working on Lee’s appeal.
That second person then returned Lee’s call within a few
Lee asked questions that court staff needed to look
Court staff therefore had to call Lee back to provide
accurate responses to his questions.
Lee then had more
questions, again requiring court staff to end the call so as not
to force Lee to wait on the phone while staff looked into the
further matters Lee inquired about.
The back and forth that Lee
refers to was occasioned by Lee’s questions, not by difficulty
“reaching each other” once Lee finally called on September 23.
Lee also mischaracterizes the information that court
staff provided on September 23 during these phone calls.
did not intend to suggest that the court thought Lee had been
receiving emails from the court.
Staff clarified and confirmed
that, as a pro se litigant, Lee was being sent communications
from the court by first-class mail to the address he had
provided at the time he filed his appeal.
confirmed that the docket reflected service on Lee and delivery
by mail to Lee for every communication with parties in the
Staff read to Lee the address the court had on
file for him and told him that it was his responsibility to
notify the court of any change in address.
change of address.
Lee provided no
Finally, court staff told Lee that if he
required notification by a means other than first-class mail, he
could file a motion explaining why he required electronic
Even if Lee had received no communication from this
court, whether electronic or by first-class mail, it was his
responsibility to comply with Bankruptcy Rule 8018(a)(1).
rule provides, “The appellant must serve and file a brief within
30 days after the docketing of notice that the record has been
transmitted or is available electronically.”
While this court’s
minute order gave Lee more than 30 days, if he failed to receive
that minute order (something he does not claim), he should have
followed the court rule.
Also, the court docket sheet was
available for monitoring by him or the public, either
electronically on PACER, for which no Electronic Case Filing
access is required, or by visiting the Clerk’s office.
in the court’s September 23 minute order, no Opening Brief was
Lee brings this motion, in part, under Rule 59(e) of
the Federal Rules of Civil Procedure, which authorizes motions
to alter or amend a judgment after its entry.
“The Rule 59(e)
motion may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised prior
to the entry of judgment.”
11 Charles Alan Wright, Arthur
Miller, and Mary Kay Kane, Federal Practice & Procedure § 2810.1
(3d ed. West 2015); see also Exxon Shipping Co. v. Baker, 554
U.S. 471, 486 n.5 (2008).
There are three basic grounds upon
which a Rule 59(e) motion may be granted:
1) newly discovered
or previously unavailable evidence; 2)a manifest error of law or
fact upon which the judgment is based or manifest injustice; and
3) an intervening change in controlling law.
Smith v. Clark
Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013).
error occurs when ‘the reviewing court on the entire record is
left with the definite and firm conviction that a mistake has
Id. (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
“[R]econsideration of a
judgment after its entry is an extraordinary remedy which should
be used sparingly.”
McDowell v. Calderon, 197 F.3d 1253, 1255
n.1 (9th Cir. 1999) (en banc) (quoting 11 Charles Alan Wright et
al., Federal Practice and Procedure § 2810.1 (2d ed. 1995)).
The decision on whether to grant or deny a Rule 59(e)
motion is committed to the sound discretion of this court.
(stating “the district court enjoys considerable discretion in
granting or denying the motion”); see also Herbst v. Cook, 260
F.3d 1039, 1044 (9th Cir. 2001) (noting “denial of a motion for
reconsideration is reviewed only for an abuse of discretion”).
Lee also brings this motion under Rule 60(b)(1) of the
Federal Rules of Civil Procedure, which permits relief from
“final” judgments, orders, or proceedings based on “mistake,
inadvertence, surprise, or excusable neglect.”
brought under Rule 59(e), Rule 60(b) motions are committed to
the discretion of the trial court.
Barber v. State of Hawaii,
42 F.3d 1185, 1198 (9th Cir. 1994) (“Motions for relief from
judgment pursuant to Federal Rule of Civil Procedure 60(b) are
addressed to the sound discretion of the district court.”).
The Ninth Circuit has noted that, for purposes of Rule
60(b), “excusable neglect” is liberally construed.
Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc).
Nevertheless, ignorance and carelessness on the part of the
party or his or her attorney do not provide grounds for relief
under Rule 60(b)(1).
Engleson v. Burlington N. R. Co., 972 F.2d
1038, 1043 (9th Cir. 1992); see also Briones v. Riviera Hotel &
Casino, 116 F.3d 379, 381 (9th Cir. 1997) (observing that
ignorance of court rules is not “excusable neglect, even if the
litigant appears pro se”).
When a party misses a filing
deadline, the Ninth Circuit has instructed courts to examine
four factors to determine whether there was “excusable neglect”:
“the danger of prejudice to the debtor, the length of the delay
and its potential impact on judicial proceedings, the reason for
the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good
Briones, 116 F.3d at 381-82 (adopting test and quoting
from Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd., 507
U.S. 380 (1993)); accord Lemoge v. United States, 587 F.3d 1188,
1192 (9th Cir. 2009) (quoting Bateman v. U.S. Postal Serv., 231
F.3d 1220, 1223 (9th Cir. 2000)).
Lee’s Rule 59 and 60 motion does not discuss why he is
entitled to relief under either rule.
Instead, he blames the
court for his failure to timely file an Opening Brief, claiming
that he did not receive electronic notifications of his deadline
as allegedly promised by court staff.
“miscommunication” is the only ground on which he seeks relief.
However, no “miscommunication” prevented Lee from
knowing his deadline.
He was sent notification of the deadline
by first-class mail and does not claim that the mail never
During the three-week period after the deadline
had passed, court staff over several days attempted to contact
Lee to determine whether he intended to file an Opening Brief
and pursue the appeal.
Only after having left four telephone
messages and having received no response did this court enter
judgment against Lee.
This court thus concludes that Lee did not miss the
deadline for filing his Opening Brief because of “excusable
In light of the efforts that court staff made to
contact Lee prior to the entry of judgment, Lee has only himself
to blame for the entry of judgment against him.
entered more than three weeks after the deadline.
even had Lee submitted an Opening Brief belatedly, would have
required adjustments to the deadlines for any subsequent briefs
and to the hearing date.
Avoiding the delay appears to have
been within Lee’s control, as it seems the delay follows his
ignoring the notification of the deadline included in material
sent by first-class mail.
Interestingly, Lee does not summarize the arguments he
would have advanced in his Opening Brief or make any attempt to
show why they would likely have succeeded.
Such a showing would
have related to the issue of any prejudice Lee might suffer if
the present motion is denied.
This court identifies no mistake, inadvertence,
surprise, or excusable neglect justifying relief under Rule
Nor is there a basis for relief under Rule 59(e).
Lee’s motion is silent as to whether there is any newly
discovered or previously unavailable evidence, any manifest
error or manifest injustice (other than Lee’s reference to the
lack of emailed notifications), or any intervening change in
See Fed. R. Civ. P. 59(e); see also Smith, 727
F.3d at 955.
This court denies Lee’s motion under Rule 59(e) or
The case remains closed in accordance with the
judgment entered on September 23, 2016.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 12, 2016.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Adam Lee v. Dane S. Field, Civ. No. 16-00295 SOM; ORDER DENYING APPELLANT’S
MOTION TO ALTER OR AMEND JUDGMENT UNTIL TRIAL IS HELD AND FOR RELIEF FROM A
JUDGMENT OR ORDER.
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