Kriege v. State of Hawaii Consumer Protection Division et al
ORDER DENYING AFFIDAVIT TO PROCEED re 91 - Signed by JUDGE DERRICK K. WATSON on 1/8/2019. (emt, )COURT'S CERTIFICATE of Service - Phillip B. Kriege served by First Class Mail to the address of record on January 8, 2019. Registered Participants of CM/ECF received this document electronically to the email addresses listed on the Notice of Electronic Filing (NEF).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
PHILLIP B. KRIEGE,
Case No. 16-cv-00324-DKW-KJM
ORDER DENYING AFFIDAVIT TO
STATE OF HAWAII CONSUMER
PROTECTION DIVISION, et al.,
On April 30, 2018, the Court dismissed this action without prejudice after
pro se Plaintiff Phillip B. Kriege failed to respond to or comply with prior orders of
the Court. Dkt. No. 89. Over seven months later, Kriege, who still appears to be
proceeding pro se, filed an “Affidavit to Proceed.” Dkt. No. 91. Because Kriege
is proceeding pro se, the Court liberally construes his Affidavit to Proceed as a
motion for reconsideration of the dismissal of this action. In that light, the
Affidavit to Proceed is DENIED because Kriege provides no explanation for why
dismissal of this action should be reconsidered.
The procedural background of this action is set forth in the Court’s Orders of
July 3, 2017 and March 12, 2018. Dkt. Nos. 61, 86. For present purposes, the
Court refers to the March 12, 2018 Order. Therein, the Court granted Defendant
Gregg N. Morimoto’s motion for judgment on the pleadings, but granted Kriege
limited leave to file an amended complaint by April 9, 2018. Dkt. No. 86.
On April 9, 2018, rather than filing an amended complaint, Kriege filed a
“Notice to Vacate Action and Estoppel.” Dkt. No. 87. Although it appeared that
Kriege may have wanted to voluntarily dismiss this action, because the Notice to
Vacate Action and Estoppel was not clear in that regard, the Court instructed
Kriege to file a notice by April 25, 2018, stating whether he intended to voluntarily
dismiss this action or, alternatively, proceed by filing an amended complaint in
accordance with the March 12, 2018 Order. Dkt. No. 88. The Court also
forewarned Kriege that if he did not file a notice by April 25, 2018, the Court
intended to dismiss this action without prejudice.
After April 25, 2018 came and went with no word from Kriege, on April 30,
2018, the Court dismissed this action without prejudice due to Kriege’s failure to
respond to or comply with prior orders of the Court. Dkt. No. 89. Judgment
was entered the same day. Dkt. No. 90. Nothing occurred in this action
thereafter until the filing of the instant Affidavit to Proceed on December 18, 2018.
As explained earlier, because Kriege is proceeding pro se, and in light of the
procedural posture of this dismissed action, the Court construes the Affidavit to
Proceed as a motion for reconsideration. A motion for reconsideration filed more
than 28 days after the entry of judgment is construed under Rule 60(b) of the
Federal Rules of Civil Procedure. See Fed.R.Civ.P. 59(e), 60(c); Gould v. Mut.
Life Ins. Co. of New York, 790 F.2d 769, 772 (9th Cir. 1986).
Pursuant to Rule 60(b), a court may relieve a party from a final judgment or
order due to, inter alia, mistake, newly discovered evidence, fraud, the judgment
being void or satisfied, or any other reason that justifies relief. Fed.R.Civ.P.
60(b)(1)-(6). A Rule 60(b) motion must be filed within a reasonable time.
In the Affidavit to Proceed, Kriege provides no explanation for why he
should be relieved from the order dismissing this action without prejudice.
Notably, Kriege provides no explanation for why he failed to file an amended
complaint in compliance with the March 12, 2018 Order or why he failed to file a
timely notice informing the Court as to whether he intended to voluntarily dismiss
or proceed with this action in compliance with the April 10, 2018 Order.
Moreover, although the Affidavit to Proceed appears to be a very belated attempt
by Kriege to now inform that he wishes to proceed with this action, Kriege has still
not filed an amended complaint in an attempt to correct the numerous deficiencies
the Court found existed with his allegations in the March 12, 2018 Order.1 As a
result, the Court finds that Rule 60(b)(6) relief is not warranted here. See Cmty.
Dental Services v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002) (“We have held that a
party merits relief under Rule 60(b)(6) if he demonstrates extraordinary
circumstances which have prevented or rendered him unable to prosecute his
case.”) (quotation and alteration omitted).
Moreover, liberally construing the assertions Kriege makes in the Affidavit
to Proceed, he arguably contends that the Court was mistaken in dismissing this
action. But Kriege points to no specific mistake and, even if he did, he does not
explain why the purported mistake is, in fact, a mistake of law or fact.2 Next,
If anything, in the Affidavit to Proceed, Kriege appears to believe that his claims do not need to
be amended, given that he asserts that the defendants remain liable to him.
The closest Kriege gets in this regard is in asserting that there has been no attempt to answer the
complaint. Of course, this argument may relate to the fact that certain defendants were never
served and were thus dismissed for lack of service. Regardless, Kriege still provides no
explanation for either why he has waited so long to challenge those dismissals or why the
dismissals were wrong.
Kriege makes no attempt to claim that the Affidavit to Proceed is premised upon
newly discovered evidence.3 Although various exhibits are attached to the
Affidavit to Proceed, they are documents that are already in the record of this
action. Next, fraud and/or misconduct appears to be the main thrust of the
Affidavit to Proceed. Unfortunately, the fraud and/or misconduct to which Kriege
alludes is purported misconduct of this Court, not of Defendants. Contrary to
Kriege’s assertions, the Court has not blocked his access to justice. Instead, the
Court has provided Kriege with the fullest opportunity to litigate his claims. The
fact that this action has been dismissed is simply the result of Kriege’s own
conduct or lack thereof. Next, again, although arguably Kriege’s assertions could
be construed as suggesting the Judgment in this case is void, he does not make any
reasoned explanation as to why that is so. Therefore, the Court does not further
address this reason. Finally, Kriege does not attempt to suggest, and there would
be no basis to find even if he did, that the Judgment in this case has been satisfied
or applying it prospectively would no longer be equitable. As a result, the Court
A party moving under Rule 60(b)(2) must show that the evidence relied upon “(1) existed at the
time of the trial, (2) could not have been discovered through due diligence, and (3) was of such
magnitude that production of it earlier would have been likely to change the disposition of the
case.” Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990).
finds that none of the reasons set forth in Rule 60(b)(1)-(5) is applicable here, and
thus, relief under Rule 60(b) is not warranted.
For the foregoing reasons, the Affidavit to Proceed, Dkt. No. 91, is
IT IS SO ORDERED.
Dated: January 8, 2019 at Honolulu, Hawai‘i.
Phillip B. Kriege v. State of Hawaii Consumer Protection Division, et al.;
Civil No. 16-00324 DKW KJM; ORDER DENYING AFFIDAVIT TO
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