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Hester v. Horowitz

United States District Court, D. Hawaii

April 28, 2017

JASON HESTER, Plaintiff,


          Leslie E. Kobayashi United States District Judge.

         On February 17, 2017, this Court issued its Amended Order Adopting Magistrate Judge's Findings and Recommendations (“2/17/17 Order”).[1] [Dkt. no. 21.] On March 3, 2017, pro se Defendant Leonard G. Horowitz (“Defendant”) filed a motion for reconsideration of the 2/17/17 Order (“Motion for Reconsideration”). [Dkt. no. 23.] Plaintiff Jason Hester (“Plaintiff”) filed his memorandum in opposition on March 17, 2017, and Defendant filed his reply on March 29, 2017. [Dkt. nos. 26, 27.] The Court has considered the Motion for Reconsideration as a 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”). After careful consideration of the motion and the relevant legal authority, Defendant's Motion for Reconsideration is HEREBY DENIED for the reasons set forth below.


         On July 26, 2016, Plaintiff, through his attorney, Paul J. Sulla, Esq., filed a “Petition to Expunge Documents Recorded in the Bureau of Conveyances of the State of Hawaii” (“Petition”) in the State of Hawai`i Circuit Court of the First Circuit. [Removal of Case Civ. No. 16-1-1442-07 VLC (“Notice of Removal”), filed 1/11/17 (dkt. no. 1), Decl. of Leonard G. Horowitz, Exh. 1 (Petition).] Pursuant to Haw. Rev. Stat. § 507D-1, et seq., Plaintiff seeks to expunge the “Affidavit of Leonard G. Horowitz (Lis Pendens on Real Property), ” filed as Document Number A-60010681 with the State of Hawai`i Bureau of Conveyances (“Horowitz Affidavit”). [Petition at pg. 1, ¶ 6, Relief Requested ¶ A.]

         On January 11, 2017, Defendant removed the case to this district court. According to the Notice of Removal, Plaintiff did not serve the Petition on Defendant until December 21, 2016.[2] [Notice of Removal at pg. 2.] Defendant alleges that Mr. Sulla is the “concealed real party in interest” in the Petition, and that the Petition was filed “for anti-competitive advantage in violation of, inter alia, the Religious Freedom Restoration Act of 1993, with counterclaims brought pursuant to 42 USC § 2000bb(b)(2) against SULLA and State and County of Hawaii ‘joint actors.'” [Id. (emphasis in original).]

         On January 19, 2017, the magistrate judge filed an entering order (“1/19/17 EO”) that, among other things, ordered Defendant to identify the legal basis for the removal. [Dkt. no. 8.] On January 20, 2017, Defendant filed his reply to the 1/19/17 EO (“Removal Reply”). [Dkt. no. 11.] As noted in the F&R, Defendant asserts that:

This action is a civil and criminal action of which this Court has original jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 1988(a), inter alia, and is one which may be removed to this Court by Defendant pursuant to the provisions of 28 U.S.C. § 1441(a) in that it arises under [42 U.S.C. §§ 1981, 1983, 1985, 1986, 1962, and 2000bb(b)(2)].

[F&R at 1 (brackets and emphasis in F&R) (footnote omitted) (quoting Removal Reply at 3-4).] The magistrate judge, however, concluded that: “The Petition does not present a federal question, and federal jurisdiction cannot rest on an actual or anticipated defense or counterclaim.” [Id. at 4 (citing Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (“Federal jurisdiction cannot be predicated on an actual or anticipated defense . . [n]or can federal jurisdiction rest upon an actual or anticipated counterclaim.”)).] The magistrate judge therefore recommended that the case be remanded to the state court.

         On February 10, 2017, Defendant filed a document that this Court construed as his objections to the F&R (“Objections”). [Dkt. no. 18.] This Court denied Defendant's Objections and adopted the F&R in the 2/17/17 Order.

         In the instant Motion for Reconsideration, Defendant argues that this Court should reconsider the 2/17/17 Order and reject the F&R because: the state courts do not have exclusive jurisdiction over Haw. Rev. Stat. Chapter 507D actions; the existence of diversity jurisdiction is apparent from the face of the Petition; expunging the Horowitz Affidavit would deprive him of his right to “free speech, free press, and freedom to petition the government for redress of grievances”; because the property at issue in the Petition is a religious property, issues regarding the First Amendment of the United States Constitution are apparent from the Petition; and federal question jurisdiction exists pursuant to 28 U.S.C. § 1441(f).


         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). This district court recognizes three circumstances where it is proper to grant reconsideration of an order: “(1) when there has been an intervening change of controlling law; (2) new evidence has come to light; or (3) when necessary to correct a clear error or prevent manifest injustice.” Tierney v. Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585, at *1 (D. Hawaii May 1, 2013) (citing School District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993)). “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. 14-00135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25, 2014). Further, “reconsideration may not be based on evidence and legal arguments that a movant could have presented at the time of the challenged decision.” Wereb v. Maui Cty., 830 F.Supp.2d 1026, 1031 (D. Hawai`i 2011) (some citations omitted) ...

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