Lake v. Ohana Military Communities, LLC

Filing 78

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR RECONSIDERATION OF ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS re 64 MOTION for Reconsideration re 63 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/12/2017. Plaintiffs' Motion for Reconsideration of Order Granting in Part and Denying in Part Defendants' Motion to Dismiss, filed August 15, 2017, is HEREBY GRANTED IN PART AND DENIED IN PART. Th e Motion for Reconsideration is GRANTED insofar as: the portion of this Court's August 1, 2017 order dismissing Plaintiffs' trespass claim with prejudice is WITHDRAWN; Plaintiffs' trespass claim is DISMISSED WITHOUT PREJUDICE; and Plai ntiffs may file a motion seeking leave to file an amended trespass claim. Plaintiffs must file the motion by October 27, 2017. The Motion for Reconsideration is DENIED in all other respects. (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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KENNETH LAKE, CRYSTAL LAKE,
HAROLD BEAN, MELINDA BEAN,
KYLE PAHONA, ESTEL PAHONA,
TIMOTHY MOSELEY, and ASHLEY
MOSELEY,

)
)
)
)
)
)
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Plaintiffs,
)
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vs.
)
)
OHANA MILITARY COMMUNITIES,
LLC, FOREST CITY RESIDENTIAL )
)
MANAGEMENT, INC.; and DOE
)
DEFENDANTS 1-10,
)
)
Defendants.
_____________________________ )

CIVIL 16-00555 LEK-KJM

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’
MOTION FOR RECONSIDERATION OF ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
On August 1, 2017, this Court issued the Order Granting
in Part and Denying in Part Defendants’ Motion to Dismiss
(“8/1/17 Order”).

[Dkt. no. 63.]

On August 15, 2017, Plaintiffs

Kenneth Lake, Crystal Lake, Harold Bean, Melinda Bean,
Kyle Pahona, Estel Pahona, Timothy Moseley, and Ashley Moseley,
for themselves and on behalf of all others similarly situated
(“Plaintiffs”), filed a motion for reconsideration of the 8/1/17
Order (“Motion for Reconsideration”).

[Dkt. no. 64.]

Defendants

Ohana Military Communities, LLC and Forest City Residential
Management, LLC (“Defendants”) filed their memorandum in

opposition on August 29, 2017, and Plaintiffs filed their reply
on September 12, 2017.

[Dkt. nos. 71, 73.]

The Court has

considered the Motion for Reconsideration as a non-hearing matter
pursuant to Rule LR7.2(e).
On September 18, 2017, this Court issued an entering
order ruling on the Motion for Reconsideration (“9/18/17 EO
Ruling”).

[Dkt. no. 74.]

9/18/17 EO Ruling.

The instant order supersedes the

The Motion for Reconsideration is granted in

part and denied in part, for the reasons set forth below.
BACKGROUND
The relevant factual and procedural background of this
case is set forth in the 8/1/17 Order.

In the 8/1/17 Order, this

Court: dismissed Count IV – Plaintiffs’ unfair and deceptive
trade practices (“UDAP”) claim – and Count IX – Plaintiffs’
unfair competition claim – with prejudice.
25.]

[8/1/17 Order at 18,

The Motion for Reconsideration does not contest those

portions of the 8/1/17 Order.
This Court also dismissed Count X – Plaintiffs’
trespass claim – with prejudice because it was duplicative of
Count XI – Plaintiffs’ trespass claim.

[Id. at 27.]

This Court

dismissed Counts I, II, III, V, VI, VII, VIII, and XI (“the
Remaining Claims”) without prejudice because the Complaint did
not include sufficient allegations regarding Plaintiffs’ standing
to pursue those claims.

[Id. at 29.]

2

In the Motion for

Reconsideration, Plaintiffs argue that this Court erred in:
1) dismissing Count X with prejudice; and 2) dismissing the
Remaining Claims based on what Plaintiffs call “a new requirement
of personal injury or personal contact with contaminated
soil/dust to establish standing.”

[Mem. in Supp. of Motion for

Reconsideration at 21.]
STANDARD
This Court has previously stated that 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
previously available; (b) Intervening change in law; [or]
(c) Manifest error of law or fact.”

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DISCUSSION
I.

Count X - Trespass
Plaintiffs argue that “interference with a tenant’s use

and enjoyment of their property can establish damages under
theories of nuisance and trespass.”

[Mem. in Supp. of Motion for

Reconsideration at 4 (emphasis in original).]

In support of this

proposition, Plaintiff cites jury instructions and case law from
California, as well as case law from various other states and
jurisdictions.

[Id. at 4-8.]

However, Counts X and XI are

claims under Hawai`i law, and this Court reiterates that the
elements of a trespass claim and a nuisance claim that this Court
discussed in the 8/1/17 Order are the elements applicable to this
case.

[8/1/17 Order at 25-27.]

While the District of Hawai`i

case that this Court quoted for the description of a nuisance
claim included citations to cases from outside of Hawai`i to
expand upon the Hawai`i Supreme Court’s definition of a
“nuisance,” it does not follow that Plaintiffs may rely almost
exclusively on cases from outside of Hawai`i.
This Court reiterates that, based on the definitions
under Hawai`i law, trespass and nuisance are distinct claims.
This Court also reiterates that Plaintiffs’ trespass claim in the
original Complaint was futile because the factual allegations in
the Complaint were not sufficient to support a trespass claim
that was distinct from their nuisance claim.
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It is possible,

under the Hawai`i law definitions, to have a distinct nuisance
claim and trespass claim based on the same set of facts.
Plaintiffs, however, did not plead such a set of factual
allegations in the Complaint.
While it is highly unlikely that Plaintiffs can amend
their trespass claim to state a claim that is distinct from their
nuisance claim, it is arguably – i.e. theoretically – possible
for them to do so.

This Court therefore grants the Motion for

Reconsideration as to Count X and withdraws the portion of the
8/1/17 Order dismissing Count X with prejudice.

The dismissal of

Count X is without prejudice to the filing of a motion seeking
leave to file an amended trespass claim (“Motion for Leave”).
Plaintiffs must file their Motion for Leave by October 27, 2017,
and the motion will be referred to the magistrate judge.

If

Plaintiffs fail to file their Motion for Leave by October 27,
2017, this Court will dismiss their trespass claim with
prejudice.
II.

Remaining Claims
The 8/1/17 Order stated that, in order to establish

standing:
As to every remaining claim, each Plaintiff must
plead sufficient factual content to draw the
reasonable inference that he or she suffered an
actual injury in fact – or faces an imminent
injury – that is fairly traceable to Defendants’
alleged actions and omissions, and that is likely
to be redressed by a judgment in his or her favor.
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Plaintiffs have pled some factual allegations
regarding soil contamination and construction dust
at [Kaneohe Marine Corp Base Hawaii] in general,
but they have not pled sufficient factual
allegations to allow this Court to draw the
reasonable inference that each Plaintiff has
suffered, or is imminently facing, an actionable
injury. . . .
[8/1/17 Order at 28-29 (citations omitted).]

This Court did not

require that Plaintiffs allege “personal injury” or “physical
injury.”

Accord Ass’n of Pub. Agency Customers v. Bonneville

Power Admin., 733 F.3d 939, 950 (9th Cir. 2013) (stating that
“‘an injury in fact’” is “‘an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical’” (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.
Ed. 2d 351 (1992)).

This Court therefore rejects Plaintiffs’

argument that the 8/1/17 Order imposed a new standing requirement
of personal/physical injury.

Further, because the concept of “an

injury in fact” is well-defined in the controlling case law, this
Court rejects Plaintiffs’ argument that the 8/1/17 Order did not
provide them with sufficient guidance about how to cure the
defects in the Remaining Claims.
Plaintiffs also argue that the requirement to allege
individualized injuries in fact to support each of the Remaining
Claims is contrary to Barber v. Ohana Military Communities, LLC,
CV 14-00217 HG-KSC, in which the district court “held against the
identical defendants that virtually identical allegations did
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meet [Fed R. Civ. P.] 12(b)(6)’s standard.”

[Mem. in Supp. of

Motion for Reconsideration at 13 (emphasis in original).]
However, the decisions of other district judges in this district
are not binding on this Court.

See Camreta v. Greene, 563 U.S.

692, 709 n.7 (2011) (“A decision of a federal district court
judge is not binding precedent in either a different judicial
district, the same judicial district, or even upon the same judge
in a different case.” (citation and quotation marks omitted)).
This Court has agreed with and adopted the Barber analysis as to
other issues.

See, e.g., 8/1/17 Order at 16-17 (quoting Barber

v. Ohana Military Communities, LLC, Civil No. 14-00217 HG-KSC,
2015 WL 2250041, at *7-8 (D. Hawai`i May 12, 2015) in the
analysis of Plaintiffs’ UDAP claim).

However, this Court did not

agree with the Barber analysis as to the Remaining Claims because
Barber was a class action and the named plaintiffs brought their
claims in a representative capacity.
2250041, at *2.

See Barber, 2015 WL

The fact that the instant case is not a class

action is a critical distinction in the analysis of what is
required to allege injury in fact.

The mere fact that Plaintiffs

disagree with this Court’s analysis and agree with those portions
of Barber analysis is not ground for reconsideration of the
8/1/17 Order.

See Davis, 2014 WL 2468348, at *3 n.4.

This Court

therefore rejects Plaintiffs’ argument that the 8/1/17 Order

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should have followed the Barber analysis as to the Remaining
Claims.
Plaintiffs have failed to establish any ground that
warrants reconsideration of the 8/1/17 Order as to the Remaining
Claims.1

The Motion for Reconsideration is therefore denied as

to the Remaining Claims.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for
Reconsideration of Order Granting in Part and Denying in Part
Defendants’ Motion to Dismiss, filed August 15, 2017, is HEREBY
GRANTED IN PART AND DENIED IN PART.

The Motion for

Reconsideration is GRANTED insofar as: the portion of this
Court’s August 1, 2017 order dismissing Plaintiffs’ trespass
claim with prejudice is WITHDRAWN; Plaintiffs’ trespass claim is
DISMISSED WITHOUT PREJUDICE; and Plaintiffs may file a motion
seeking leave to file an amended trespass claim.
file the motion by October 27, 2017.

Plaintiffs must

The Motion for

Reconsideration is DENIED in all other respects.
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1

Any other argument regarding the Remaining Claims that
Plaintiffs make in the Motion for Reconsideration, but which is
not specifically addressed above, is also rejected.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 12, 2017.

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

KENNETH LAKE, ET AL. V. OHANA MILITARY COMMUNITIES, LLC, ET AL.;
CIVIL 16-00555 LEK-KJM; ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFFS’ MOTION FOR RECONSIDERATION OF ORDER GRANTING IN
PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

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