Auld-Susott v. Galindo

Filing 136

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR RECONSIDERATION OF THIS COURT'S RULING THAT SHE MAY NOT CALL ANY WITNESSES AT TRIAL re 129 - Signed by JUDGE LESLIE E. KOBAYASHI on 7/9/2018. On the basis of th e foregoing, Defendant Lauryn Galindo's Motion for Reconsideration of This Court's Ruling That She May Not Call Any Witnesses at Trial, filed July 3, 2018, is HEREBY GRANTED IN PART AND DENIED IN PART. Specifically, the Galindo Declaration will be considered, and Defendant must be available for cross-examination. The Starr Declaration will not be considered. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiffs,
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vs.
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LAURYN GALINDO,
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Defendant.
_____________________________ )
EVAN AULD-SUSOTT, as Trustee
for (1) IRREVOCABLE LIEF
INSURANCE TRUST OF JOHN L.
SUSOTT AND KATHRYN C. SUSOTT
UAD 8/17/1988 AS RESTATED,
EXEMPT TRUST FBO DANIEL C.
SUSOTT, and (2) IRREVOCABLE
LIFE INSURANCE TRUST OF JOHN
L. SUSOTT AND KATHRYN C.
SUSOTT UAD 8/17/1988 AS
RESTATED, NON-EXEMPT TRUST
FBO DANIEL C. SUSOTT; and
JOHN L. SUSOTT,

CIVIL 16-00450 LEK-RLP

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR RECONSIDERATION OF THIS
COURT’S RULING THAT SHE MAY NOT CALL ANY WITNESSES AT TRIAL
On July 3, 2018, Defendant Lauyrn Galindo (“Defendant”)
filed her Motion for Reconsideration of This Court’s Ruling That
She May Not Call Any Witnesses at Trial (“Motion for
Reconsideration”).

[Dkt. no. 129.]

On July 9, 2018, Plaintiffs

Evan Auld-Susott, as Trustee for (1) Irrevocable Life Insurance
Trust of John L. Susott and Kathryn C. Susott UAD 8/17/1988 as
Restated, Exempt Trust FBO Daniel C. Susott, and (2) Irrevocable
Life Insurance Trust of John L. Susott and Kathryn C. Susott UAD
8/17/1988 as Restated, Non-Exempt Trust FBO Daniel C. Susott; and

John L. Susott (collectively, “Plaintiffs”) filed their
memorandum in opposition.

[Dkt. no. 134.]

The Court has

considered the Motion for Reconsideration as non-hearing matter
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”).

Defendant’s Motion for Reconsideration is hereby

granted insofar as Defendant’s declaration of her own direct
testimony will be permitted, and denied as to all other
witnesses.
BACKGROUND
On June 12, 2018, this Court issued an entering order
stating that, in lieu of live direct testimony, the party calling
a witness must file a declaration setting forth the direct
testimony of that witness (“6/12/18 EO”).
no. 104.]

[Minutes, dkt.

The 6/12/18 EO further stated: “Declarations are due

6/26/2018.”

[Id. (emphasis in original).]

Defendant failed to

file any declarations on or before June 26, 2018.

Thereafter, on

July 1, 2018, Defendant filed the Declaration of Defendant Lauren
Galindo for Trial (“Galindo Declaration”).

[Dkt. no. 123.]

On

July 2, 2018, Defendant filed the Declaration of Emerald Starr
for Trial (“Starr Declaration”) and the Declaration of Harvey L.
Cohen for Trial (“Cohen Declaration”).
Decl.), 126 (Cohen Decl.).]

[Dkt. nos. 124 (Starr

Also on July 2, 2018, at the final

pre-trial conference before the non-jury trial scheduled for
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July 10, 2018, Defendant’s counsel failed to provide any
justification for the late filings of the declarations.
Accordingly, because they were filed after the deadline, this
Court orally ruled these declarations will not be considered.
[Minutes, dkt. no. 125.]

In the instant Motion for

Reconsideration, Defendant argues that, even though they were
late-filed, the Galindo Declaration and Starr Declaration should
be considered.
STANDARD
This Court has previously stated 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.
Hawaii June 2, 2014) (citation and internal
quotation marks omitted). . . . “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
omitted).
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,
2014).

Local Rule 60.1 states, in relevant part: “Motions for

reconsideration of interlocutory orders may be brought only upon
the following grounds: (a) Discovery of new material facts not

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previously available; (b) Intervening change in law; [or]
(c) Manifest error of law or fact.”
DISCUSSION
The 6/12/18 EO required submission of written
declarations in lieu of direct oral testimony (“Declarations
Procedure”).

Requiring use of the Declarations Procedure is

appropriate.

See Kuntz v. Sea Eagle Diving Adventures Corp., 199

F.R.D. 665, 667 (D. Hawai`i 2001) (footnote omitted) (citing In
re Gergely, 110 F.3d 1448, 1452 (9th Cir. 1997) (“Requiring
evidence to be presented by declaration is an accepted and
encouraged technique for shortening bench trials that is
consistent with Rule 611(a)(2)”)).
A federal court is authorized “to issue any just
orders, including those authorized by [Fed. R. Civ.
P.] 37(b)(2)(A)(ii)-(vii), if a party or its attorney:
obey a scheduling or other pretrial order.”
P. 16(f)(1)(C).

fails to

Fed. R. Civ.

In addition:

Instead of or in addition to any other sanction,
the court must order the party, its attorney, or
both to pay the reasonable expenses – including
attorney’s fees – incurred because of any
noncompliance with this rule, unless the
noncompliance was substantially justified or other
circumstances make an award of expenses unjust.
Rule 16(f)(2).

The Ninth Circuit has recognized that district

courts
routinely set schedules and establish deadlines to
foster the efficient treatment and resolution of
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cases. Those efforts will be successful only if
the deadlines are taken seriously by the parties,
and the best way to encourage that is to enforce
the deadlines. Parties must understand that they
will pay a price for failure to comply strictly
with scheduling and other orders, and that failure
to do so may properly support severe sanctions and
exclusions of evidence. The Federal Rules of
Civil Procedure explicitly authorize the
establishment of schedules and deadlines, in
Rule 16(b), and the enforcement of those schedules
by the imposition of sanctions, in Rule 16(f).
Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir.
2005).

The imposition of sanctions under Rule 16(f) is committed

to the district court’s discretion because it “needs the
authority to manage the cases before it efficiently and
effectively.”

Id.

mindlessly . . . .

Still, “[d]eadlines must not be enforced
Sometimes there may be good reason to [allow]

additional witnesses after the established deadline.”
1060.

Id. at

In Wong, the Ninth Circuit concluded the district court

did not abuse its discretion in refusing to allow a latedisclosed witness to testify, even though the trial was “still
some months away,” because failure to comply with scheduling
orders causes “[d]isruption to the schedule of the court and
other parties . . . [and] is not harmless.”

Id. at 1062.

Here,

Defendant timely submitted her witness list, but late-filed her
witnesses’ declarations of direct testimony.

This late filing is

especially disruptive because it comes so close to the start of
trial on July 10, 2018.

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Defendant argues reconsideration is appropriate
because: the late filings were caused by errors of support staff
while Defendant’s counsel was traveling; any prejudice to
Plaintiffs was mitigated because Defendant’s counsel contacted
Plaintiffs’ counsel the day after the missed June 26, 2018,
deadline; and because Plaintiffs are culpable too, insofar as
their timely declarations failed to comply with the rules
requiring original signatures, and their compliant declarations
were filed were filed on June 27, 2018.
for Reconsideration at 2-6.]

[Mem. in Supp. of Motion

In It is simply wrong for counsel

to lay blame at the feet of his support staff.

As the attorney,

he is solely responsible for complying with court-ordered
deadlines.

His failure to take responsibility for the late-

filing and to apologize to opposing counsel and the Court at the
final pretrial conference is both puzzlingly and incredibly
arrogant.

Indeed, it led to this Court’s initial ruling to

exclude all three declarations.

Counsel now seeks

reconsideration as to two of th late-filed declarations.
Upon reflection that Defendant need not suffer for the
arrogance of her counsel, this Court concludes that a just order
enforcing the deadline set in the 6/12/18 EO does not require
this Court to disregard the Galindo Declaration.1

1

See

Galindo must “be available for live crossexamination.”
See 6/12/18 EO.
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Rule 16(f).

Given Defendant’s failure to comply with the

applicable deadlines, this Court will exclude the Starr
Declaration, and in a subsequent order, will impose monetary
sanctions on counsel.
Defendant argues that excluding all of her witnesses is
tantamount to imposing a default against her, and is therefore an
abuse of discretion.

[Mem. in Supp. of Motion for

Reconsideration at 8-9 (citing Santos v. Farmers Ins. Exch.,
No. 07-11229, 2008 U.S. Dist. LEXIS 20442 (E.D. Mich. Mar. 17,
2008); Blackwell v. Amchem Prod., Inc., 108 F.R.D. 287, 289
(S.D. Ga. 1985)).2]

The Ninth Circuit has

identified five factors that a district court
must consider before dismissing a case or
declaring a default: (1) the public’s
interest in expeditious resolution of
litigation; (2) the court’s need to manage
its docket; (3) the risk of prejudice to the
other party; (4) the public policy favoring
the disposition of cases on their merits; and
(5) the availability of less drastic
sanctions.
Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011)
(citation and internal quotation marks omitted).

Defendant has

not argued that excluding only the Starr Declaration is
tantamount to imposing a default.

Because the Galindo

Declaration will be considered, the Motion for Reconsideration is
denied as moot insofar as it argues this Court abused its

2

Santos is also available at 2008 WL 723504.
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discretion by ordering sanctions tantamount to default without
considering the required factors.
Defendant cites California and Florida law and argues
that “to deny a party the right to testify and present witnesses
is a clear denial of due process.”

[Mem. in Supp. of Motion for

Reconsideration at 7 (citations omitted).]

To the extent

Defendant argues exclusion of the Galindo Declaration violates
her due process rights, the Motion for Reconsideration is denied
as moot.

To the extent Defendant argues exclusion of the Starr

Declaration violates her due process rights, this Court
disagrees.

See Wong, 410 F.3d at 1062 (approving exclusion of a

witness in order to enforce the court’s schedules and deadlines).
Defendant has not established either a manifest error
of law in excluding the Starr Declaration, or any other grounds
for reconsideration.

The Motion for Reconsideration is therefore

denied as to the Starr Declaration.
CONCLUSION
On the basis of the foregoing, Defendant Lauryn
Galindo’s Motion for Reconsideration of This Court’s Ruling That
She May Not Call Any Witnesses at Trial, filed July 3, 2018, is
HEREBY GRANTED IN PART AND DENIED IN PART.

Specifically, the

Galindo Declaration will be considered, and Defendant must be
available for cross-examination.

The Starr Declaration will not

be considered.

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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 9, 2018.

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

EVAN AULD-SUSOTT, ETC., ET AL. VS. LAURYN GALINDO; CIVIL 16-00450
LEK-RLP; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR RECONSIDERATION OF THIS COURT’S RULING THAT SHE MAY
NOT CALL ANY WITNESSES AT TRIAL

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