Adon Construction Inc.; et al. vs. Renesola America Inc.; et al.

Filing 180

ORDER DENYING DEFENDANT RENESOLA AMERICA INC.'S MOTION FOR RECONSIDERATION OF EXECUTIVE ORDER DENYING RENESOLA'S MOTION TO EXCLUDE THE EXPERT TESTIMONY OF PHILLIP ATOIGUE re 178 - Signed by JUDGE JILL A. OTAKE on 4/1/2019. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ADON CONSTRUCTION INC., a )
Hawaii corporation; GREEN VISION )
LLC, a Hawaii Limited Liability
)
Company,
)
)
Plaintiffs,
)
vs.
)
)
RENESOLA AMERICA INC.;
)
KIVALU RAMANLAL; JOHN
)
DOES 1-10; JANE DOES 1-10; DE )
PARTNERSHPS 1-10; DOE
)
CORPORATIONS 1-10; DOE
)
ENTITIES 1-10,
)
)
Defendants.
)
)

CIVIL NO. 16-00568 JAO-RLP
ORDER DENYING DEFENDANT
RENESOLA AMERICA INC.’S
MOTION FOR RECONSIDERATION
OF EXECUTIVE ORDER DENYING
RENESOLA’S MOTION TO EXCLUDE
THE EXPERT TESTIMONY OF
PHILLIP ATOIGUE

ORDER DENYING DEFENDANT RENESOLA AMERICA INC.’S
MOTION FOR RECONSIDERATION OF EXECUTIVE ORDER
DENYING RENESOLA’S MOTION TO EXCLUDE THE EXPERT
TESTIMONY OF PHILLIP ATOIGUE
Before the Court is Defendant Renesola America Inc.’s (“Defendant”)
Motion for Reconsideration of Executive Order Denying Renesola’s Motion to
Exclude the Expert Testimony of Phillip Atoigue (“Motion”), filed March 25,
2019. This matter is suitable for disposition without a hearing pursuant to Rule
7.2(e) of the Local Rules of Practice for the U.S. District Court for the District of
Hawaii (“Local Rules”).

1

Defendant seeks reconsideration of this Court’s March 15, 2019 Entering
Order (“EO”) on the basis that its Motion to Exclude the Expert Testimony of
Phillip Atoigue is subject to the motions in limine deadline set forth in the Fourth
Amended Rule 16 Scheduling Order. Local Rule 60.1 provides three grounds for
reconsideration of interlocutory orders:
(a) Discovery of new material facts not previously available;
(b) Intervening change in law;
(c) Manifest error of law or fact.
Local Rule 60.1.1 Motions for reconsideration under Local Rule 60.1(c) “must be
filed and served not more than fourteen (14) days after the court’s written order is
filed.” Local Rule 60.1(c).
The Ninth Circuit requires that a successful motion for reconsideration
accomplish two goals. “First, a motion for reconsideration must demonstrate some
reason why the Court should reconsider its prior decision. Second, the motion
must set forth facts or law of a ‘strongly convincing’ nature to induce the court to
reverse its prior decision.” Jacob v. United States, 128 F. Supp. 2d 638, 641 (D.
Haw. 2000) (citing Decker Coal Co. v. Hartman, 706 F. Supp. 745, 750 (D. Mont.

Defendant erroneously cites Federal Rule of Civil Procedure (“FRCP”) 60(b).
FRCP 60(b) governs motions to reconsider case-dispositive orders. Local Rule
60.1 (“Motions seeking reconsideration of case-dispositive orders shall be
governed by Fed. R. Civ. P. 59 or 60, as applicable.”). The EO that is the subject
of this Motion is an interlocutory, not dispositive, order.
1

2

1988)) (citation omitted). Mere disagreement with a court’s analysis in a previous
order is not a sufficient basis for reconsideration. White v. Sabatino, 424 F. Supp.
2d 1271, 1274 (D. Haw. 2006) (citing Leong v. Hilton Hotels Corp., 689 F. Supp.
1572 (D. Haw. 1988)); Haw. Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d
1253, 1269 (D. Haw. 2005). “Whether or not to grant reconsideration is
committed to the sound discretion of the court.” Navajo Nation v. Confederated
Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir.
2003) (citing Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000)).
The Court determined that Defendant’s Motion to Exclude was untimely
filed pursuant to the January 22, 2019 non-dispositive motions deadline set forth in
the Fourth Amended Rule 16 Scheduling Order. Doc. No. 175. Defendant
contends that its Motion to Exclude is in actuality a motion in limine and is
therefore subject to the September 3, 2019 motions in limine deadline set forth in
the Fourth Amended Rule 16 Scheduling Order. In support of its request for
reconsideration, Defendant relies solely on a string cite of cases, none of which
support reconsideration under the circumstances presented here.
Defendant mispresents that in Ludlow v. Lowe’s Home Center, Civil No. 1200476 KSC, Magistrate Judge Chang determined that a Daubert motion was akin
to a motion in limine and was therefore timely filed. Memo. in Supp. of Mot. at 4
3

(“(rejecting the argument that a Daubert motion was ‘untimely filed because the
non-dispositive motions deadline expired’ and finding that the Daubert motion ‘is
akin to a motion in limine, and was therefore timely filed pursuant to the . . . . Rule
16 Scheduling Order’).”). The motion to exclude in Ludlow sought to strike the
naming of an expert and preclude the introduction of the plaintiff’s newlydisclosed damages computation for failure to comply with FRCP 26.2 Mot., Decl.
of Counsel, Ex. A at 3-4. It was not a Daubert motion.
Defendant cites Hambrook v. Smith, No. 14-00132 ACK-KJM, 2016 WL
4084110, at *2 (D. Haw. Aug. 1, 2016), for the proposition that the plaintiff seeks
to exclude expert opinions in a motion in limine. Judge Kay merely summarized
the relief sought by the plaintiff there; he did not offer a statement of law regarding
the type of relief sought by way of a motion in limine. Id. (“In her motion in
limine, Plaintiff seeks to exclude undisclosed expert opinions from Defendants’
expert, Dr. Lindell Weaver.”). Notably, the motion in limine highlighted by
Defendant again concerned exclusion pursuant to FRCP 26. Id. at *2-3.
Defendant also cites City of Pomona v. SQM North America Corp., 750
F.3d, 1036, 1044 (9th Cir. 2014), to highlight the fact that Daubert issues were
considered in a motion in limine. Daubert issues were indeed presented in a

2

These types of motions to exclude are often raised after the expiration of the nondispositive motions deadline because parties attempt to rely on untimely or never
produced/disclosed evidence as trial nears.
4

motion in limine. However, the district court’s scheduling deadlines and
procedures differ from this court. See Civil No. 11-00167 RGK-JEM (C.D. Cal.).
Finally, Plaintiff relies on G. v. Hawaii, No. CV 08-00551 ACK-BMK, 2010
WL 1372319, at * 10 (D. Haw. Apr. 2, 2010), in which Judge Kay addressed
Daubert issues in a motion in limine. Though titled a motion in limine, the motion
in G was filed prior to the expiration of the non-dispositive motions deadline.
Civil No. 08-00551, ACK-BMK; Civil No. 09-00044 ACK-BMK (consolidated),
Doc. No. 95.
The Court does not suggest that Daubert issues cannot be raised in motions
in limine, where appropriate. However, the Court’s determination that the Motion
to Exclude was untimely, having been filed after the expiration of the nondispositive motions deadline, was not erroneous. Phillip Atoigue’s expert report
was filed on November 6, 2018, Doc. No. 111, well before the expiration of the
non-dispositive motions deadline. Defendant should have at a minimum been on
notice of potential Daubert issues at that point. Arguably, Defendant could have
filed the Motion to Exclude by January 22, 2019.3

Defendant’s Motion to Exclude also relies on a February 19, 2019 deposition.
This might factor into an FRCP 16(b) analysis.
3

5

Notwithstanding Defendant’s attempt to recast its Motion to Exclude as a
very early motion in limine,4 it is apparent that Defendant merely disagrees with
the EO, which cannot serve as a basis for reconsideration.
In its EO, the Court did not preclude relief altogether. Rather, the Court
stated:
If Defendant wishes to file a Daubert motion, it must first seek
leave to amend the scheduling order to extend the non[-]
dispositive motions deadline. Although the Court continued the
trial at the 2/19/19 status conference, expired deadlines were
not reopened. Any motion to amend the scheduling order will
require a showing of good cause pursuant to Federal Rule of
Civil Procedure 16(b), which focuses on the moving party's
diligence.
Doc. No. 175. Instead of availing itself of the opportunity to seek leave to file its
Motion to Exclude after the non-dispositive motions deadline, Defendant elected to
file this Motion.
For the reasons stated above, Defendant has failed to demonstrate a basis for
reconsideration, and it has not set forth law or facts of a “strongly convincing”
nature to induce the Court to reverse its prior decision. The Court therefore
declines to reconsider its EO.

4

It is unclear why Defendant did not title the Motion to Exclude as such, if it in
fact intended to file a motion in limine.
6

CONCLUSION
In accordance with the foregoing, the Court HEREBY DENIES Defendant’s
Motion for Reconsideration of Executive Order Denying Renesola’s Motion to
Exclude the Expert Testimony of Phillip Atoigue, filed March 25, 2019.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai‘i, April 1, 2019.

CIVIL NO. 16-00568 JAO-RLP; ADON CONSTRUCTION INC. V RENESOLA AMERICA INC., ET AL.;
ORDER DENYING DEFENDANT RENESOLA AMERICA INC.’S MOTION FOR
RECONSIDERATION OF EXECUTIVE ORDER DENYING RENESOLA’S MOTION TO EXCLUDE
THE EXPERT TESTIMONY OF PHILLIP ATOIGUE

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