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David Kersh v. Marketwatch Inc.

November 23, 2011

DAVID KERSH,
PLAINTIFF-APPELLANT,
v.
MARKETWATCH INC., DOW JONES & COMPANY INC., VIACOM, INC., TD AMERITRADE HOLDING CORP. AND JOE MOGLIA, JOINTLY & SEVERALLY,
DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 08-1-1930)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Fujise, Presiding Judge, Reifurth and Ginoza, JJ.)

Plaintiff-Appellant David Kersh (Kersh), appearing pro se, appeals from the judgment entered on September 21, 2009 by the Circuit Court of the First Circuit (Circuit Court).*fn1 The judgment was entered pursuant to an order dismissing the action due to Kersh's failure to file a pretrial statement. On appeal, Kersh asserts two points of error: (1) the Circuit Court improperly dismissed the case sua sponte; and (2) there was no legal basis for a motion filed by certain defendants to have Kersh declared a vexatious litigant.

Based upon our careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Kersh's points of error as follows.

(1) The Circuit Court properly dismissed the case when

Kersh failed to timely file a pretrial statement. Kersh did not avail himself of the opportunity to request that the order be set aside, as allowed by the Circuit Court's order.

On September 19, 2008, Kersh filed the complaint in this action alleging misrepresentation, fraud, breach of fiduciary duty, breach of contract, and violations of Hawaii Revised Statutes (HRS) §§ 480-2 (2008 Repl.) and 480-13 (2008 Repl.). Kersh's complaint named Defendants-Appellees MarketWatch, Inc., Dow Jones & Company, Inc., Viacom, Inc. (collectively MarketWatch Defendants) and Defendants-Appellees TD Ameritrade Holding Corp. and Joe Moglia (collectively Ameritrade Defendants).

On June 30, 2009, nine and a half months after Kersh filed his complaint, the Circuit Court sua sponte issued an Order of Dismissal, which stated in full:

It appearing that no pretrial statement has been filed with the court as required by Rule 12(b) of the Rules of the Circuit Courts of the State of Hawaii or within any period of extension granted by the Court, IT IS HEREBY ORDERED that the above entitled action is dismissed.

This dismissal may be set aside and the action reinstated by order of the court for good cause shown upon motion duly filed not later than ten (10) days from the date of this order of dismissal.

Rule 12(q) of the Rules of the Circuit Courts of the State of Hawaii (RCCH) states:

An action may be dismissed sua sponte with written notice to the parties if a pretrial statement has not been filed within 8 months after a complaint has been filed (or within any further period of extension granted by the court) or if a trial setting status conference has not been scheduled as required by Rule 12(c). Such dismissal may be set aside and the action reinstated by order of the court for good cause shown upon motion duly filed not later than ten (10) days from the date of the order of dismissal.

We review the Circuit Court's dismissal in this case for abuse of discretion. Cf. GLA Inc. v. Spengler, 1 Haw. App. 647, 649, 623 P.2d 1283, 1285 (1981). The record confirms, and Kersh does not dispute, that he did not file a pretrial statement within eight months of filing his complaint or at any other time, he did not request an extension to file a pretrial statement, and the Circuit Court did not grant any extension. Likewise, once the dismissal order was issued, Kersh did not seek to set aside the dismissal. To the contrary, Kersh submitted a proposed ...


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