Hemmy v. Midland Funding, LLC et al

Filing 89

ORDER DENYING PLAINTIFF'S 88 Motion for Reconsideration. Signed by JUDGE LESLIE E. KOBAYASHI on 06/15/2017. (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 June 16, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MINA E. HEMMY,

)
)
Plaintiff,
)
)
vs.
)
)
MIDLAND FUNDING LLC, et al., )
)
)
Defendant.
_____________________________ )

CIVIL 16-00407 LEK-RLP

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
On May 31, 2017, this Court issued its Order Denying
Plaintiff’s Motion for Summary Judgment and Granting Defendant
Kirk Neste’s Counter-motion for Summary Judgment (“5/31/17
Order”).

[Dkt. no. 87.]

On June 9, 2017, pro se Plaintiff

Mina E. Hemmy (“Plaintiff” or “Hemmy”) filed Plaintiff’s
Declaration and Motion for Reconsideration.

[Dkt. no. 88.]

The

Court finds this matter 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 Rules”).

After careful consideration of the motion and

the relevant legal authority, Plaintiff’s Motion for
Reconsideration is HEREBY DENIED for the reasons set forth below.
DISCUSSION
On October 28, 2016, Plaintiff filed a Motion for
Summary Judgment and, on February 10, 2017, Defendant Kirk Neste
(“Neste”) filed his joint memorandum in opposition to Plaintiff’s

motion and his Counter-Motion for Summary Judgment (“CounterMotion”).

[Dkt. nos. 35, 55.]

In the 5/31/17 Order, this Court

granted the Counter-Motion as to all of the claims against in
Plaintiff’s Complaint for Permanent Injunction and Other Relief
(“Complaint”), filed July 25, 2016, and directed the entry of
judgment unless Plaintiff filed a motion for reconsideration.
[5/31/17 Order at 16.]

In her Motion for Reconsideration,

Plaintiff asks this Court to reconsider its rulings in the
5/31/17 Order and to grant her relief from the pending judgment,
pursuant to Fed. R. Civ. P. 60.

Rule 60(b) 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;
(2) newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial under
Rule 59(b);
(3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4)

the judgment is void;

(5) the judgment has been satisfied,
released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable;
or
(6)

any other reason that justifies relief.

Plaintiff argues that this Court should grant her Rule 60 relief
2

because of:
i.

A mistake, inadvertence and excusable neglect
on the part of the defendant’s oversight to
present and articulate critical argument from
3rd party witness testimony.

ii.

Newly discovered evidence from new witness
testimony which by due diligence can only be
discovered by subpoena in time for trial.

iii. Fraud and perjured testimony.
iv.

The alleged claim of a debt JUDGMENT IS VOID
due to lack of subject matter jurisdiction by
way of plaintiff’s intrinsic fraud, perjured
testimony, lack of standing,
misrepresentation and other misconduct by the
plaintiff and his attorney.

[Motion for Reconsideration at 2 (emphasis in original).1]
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
case.”
Feature Realty, Inc. v. City of Spokane, 331 F.3d
1082, 1093 (9th Cir. 2003) (quoting Coastal

1

This portion of the Motion for Reconsideration apparently
refers to Hemmy as “the defendant,” Kevin House as “the
plaintiff,” and Neste as “his attorney,” based on their
involvement in the Ejectment Action. See 5/31/17 Order at 7
(describing the Ejectment Action).
3

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
Tagupa).
First, although Plaintiff alleges that she mistakenly
or inadvertently failed to present a witness’s testimony in
connection with the Counter-Motion, she neither identifies the
witness nor describes the testimony that she failed to present.
Similarly, although Plaintiff asserts that she will present newly
discovered evidence if this Court grants the Motion for
Reconsideration and allows her case to proceed to trial, she does
not describe the newly discovered evidence.

This Court therefore

cannot determine whether either the evidence that Plaintiff
failed to present in connection with Neste’s Counter-Motion or
her purported newly discovered evidence is “of such magnitude
that production of it earlier would have been likely to change”
this Court’s ruling on Neste’s Counter-Motion.

See Feature

Realty, 331 F.3d at 1093 (citation and internal quotation marks
omitted).
Further, the Motion for Reconsideration’s arguments
that Neste and Kevin House committed fraud and perjury and
4

therefore the judgment from the Ejectment Action that Neste
attempted to collect from Plaintiff was void are arguments that
Plaintiff raised in connection with the Counter-Motion.

[5/31/17

Order at 10 (“Hemmy alleges that the judgment in the Ejectment
Action is void because Neste and Kevin House committed fraud and
perjury.”).]

This Court considered these arguments, but

concluded that they were not relevant to the analysis of the
Plaintiff’s claims against Neste in the instant case.

In other

words, the arguments did not warrant denial of Neste’s CounterMotion.

This Court understands that Hemmy is disappointed in the

outcome of her claims against Neste, but that is not a sufficient
ground for reconsideration of the 5/31/17 Order pursuant to
Rule 60(b) .

See McCarthy v. Mayo, 827 F.2d 1310, 1318 (9th Cir.

1987) (“dissatisfaction with a ruling of the court . . . would be
appropriate for appellate review as opposed to Rule 60(b)
relief”).
This Court therefore CONCLUDES that Plaintiff has not
established any ground that warrants reconsideration of the
5/31/17 Order.
CONCLUSION
On the basis of the foregoing, Plaintiff’s motion for
reconsideration of this Court’s May 31, 2017 Order Denying
Plaintiff’s Motion for Summary Judgment and Granting Defendant
Kirk Neste’s Counter-motion for Summary Judgment, which Plaintiff

5

filed on June 9, 2017, is HEREBY DENIED.

There being no

remaining claims in this case, this Court DIRECTS the Clerk’s
office to enter judgment and close this case immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 15, 2017.

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

MINA E. HEMMY VS. MIDLAND FUNDING LLC, ET AL; CIVIL 16-00407 LEKRLP; ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION

6