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LLC v. State, Land Use Commission

United States District Court, D. Hawaii

February 16, 2018

STATE OF HAWAII LAND USE COMMISSION; VLADIMIR P. DEVENS, in his individual and official capacity; KYLE CHOCK, in his individual and official capacity; THOMAS CONTRADES, in his individual and official capacity; LISA M. JUDGE, in her individual and official capacity; NORMAND R. LEZY, in his individual and official capacity; NICHOLAS W. TEVES, JR., in his individual and official capacity; RONALD I. HELLER, in his individual and official capacity; DUANE KANUHA, in his official capacity; CHARLES JENCKS, in his official capacity; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 2-10; and DOE GOVERNMENTAL UNITS 1-10, Defendants.




         The State of Hawaii Land Use Commission (the “State”) filed a motion to exclude an expert opinion by Steven Chee on the diminution in value caused by the State's alleged regulatory taking of land from Bridge Aina Le‘a. In an oral order issued on January 9, 2018, the court partially excluded Chee's testimony. Bridge Aina Le‘a now asks the court to reconsider its order insofar as it excludes Chee's testimony. The motion is untimely, but the court nevertheless addresses the merits of the motion and denies it because it fails to establish that the court's order was based on a manifest error of law.


         The factual background of this case has been discussed in the court's previous orders and is incorporated by reference. See, e.g., ECF 131; 283.

         On November 30, 2015, Bridge Aina Le‘a served the expert reports of David Burger and Steven Chee on the State. See ECF 134, PageID # 3120. Both reports were submitted as going to the amount of “just compensation” allegedly owing to Bridge Aina Le‘a under the Takings Clause. According to Bridge Aina Le‘a, the Chee and Burger opinions

figured into the following formula for calculating just compensation: (1) the diminution in value caused by the government action, multiplied by (2) the time period of the temporary taking, multiplied by (3) Plaintiff's rate of return. The Chee report went to the first two numbers in that formula, while the Burger report went to the third.

ECF 314, PageID # 6592.

         On March 2, 2016, the State filed a motion to exclude both expert reports. ECF 134. On May 11, 2016, the court issued Inclinations stating that it was inclined to grant the State's motion. After a lengthy delay during which the parties attempted to settle the case, the State filed a separate motion requesting that the court strike two “supplemental” Burger reports that Bridge Aina Le‘a had filed in the interim. ECF 268. On November 11, 2017, the Magistrate Judge issued an order granting the motion to strike the supplemental Burger reports. ECF 283. On appeal, this court affirmed the Magistrate Judge's order. ECF 288.

         On January 8, 2018, this court issued a minute order striking the original Burger report. ECF 297. It reserved ruling on the Chee report until the hearing the next day. See Id. At the January 9, 2018 hearing, the court issued an oral order excluding Chee's opinion insofar as he sought to address Bridge Aina Le‘a's claim for just compensation, but stated that it would permit Chee to testify on the issue of whether a taking had occurred. See ECF 313. The court reasoned that, because Bridge Aina Le‘a had failed to submit any admissible evidence establishing its rate of return under its proffered just compensation formula, Chee's opinion regarding the first two numbers of that formula--which were to be multiplied by a rate of return--was no longer relevant. See id.

         Three weeks after the court's oral order partially excluding Chee's opinion, Bridge Aina Le‘a filed the Motion for Partial Reconsideration. See ECF 306.


         “As long as a district court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (emphasis omitted) (quoting Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981)). “Whether or not to grant reconsideration is committed to the sound discretion of the court.” Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003).

         Local Rule 60.1 restricts motions for reconsideration of interlocutory orders to “the following grounds: (a) Discovery of new material facts not previously available; (b) Intervening change in law; (c) Manifest error of law or fact.” Id.; see also Nunes v. Ashcroft, 375 F.3d 805, 807-08 (9th Cir. 2004) (“Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” (quoting Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). Motions asserting a manifest error of law or fact “must be filed and served not more than fourteen (14) days after the court's written order is filed.” Id.

         IV. ANALYSIS.

         A. The Motion for Partial Reconsideration Is Untimely.

         Local Rule 60.1, which governs motions “for reconsideration of interlocutory orders, ” requires a reconsideration motion based on a manifest error of law to “be filed and served not more than fourteen (14) days after the court's written order is filed.” Id. No written order was issued in this case. The court therefore looks to the date on which it issued its oral order: January 9, 2018. The Motion for Partial Reconsideration, which argues that the court's order was “manifestly unjust and erroneous, ” was filed on January 30, 2018, making it untimely. See ECF 306-1, PageID # 6513.

         Although this court denies the motion on substantive grounds, this court spends a considerable part of this order addressing the motion's untimeliness in the hope of forestalling future problems in this case. Bridge Aina Le‘a argues that its motion is timely because it was filed fourteen days after the parties were served with Minutes summarizing the hearing at which the court announced its oral ruling. This argument is unavailing.

         While the Minutes memorializing what occurred at the hearing were not served on the parties until January 16, 2018, those Minutes are not an order, and the timing of the Minutes is therefore irrelevant to any calculation of the deadline for seeking reconsideration. To address any confusion about the import of the January 16 Minutes (and to address a calendaring error in those minutes), this court, conscious that Bridge Aina Le‘a had a deadline of February 13 for its reply memorandum in support of its Motion for Partial Reconsideration, issued a minute order on February 10 emphasizing that the document filed on January 16 was what it was labeled as: “Minutes, ” not an order. See ECF 312 (explaining that “minutes” are “nothing more than a historical account of what occurred in open court”). Nothing in the Minutes indicates that it constitutes an order.

         Attached to the present order as Exhibit A is a copy of the Minutes served on January 16, 2018, containing an erroneous reference to a hearing on January 8, 2018.[1] The hearing actually occurred on January 9, 2018. To correct that error, court staff filed Amended Minutes on February 13, attached as Exhibit B. The word “Minutes” appears at the top of both documents.[2] The documents lack a judge's signature, and state that they are “Submitted by: Theresa Lam, Courtroom Manager.” Additionally, the Minutes are in the same format as the Minutes of the hearing on January 10, which includes administrative notes that are clearly a report of proceedings. See ECF 302.

         Of particular note is the designation “EP” (for “Entering Proceeding”) on the docket entries for both the original Minutes and the Amended Minutes. See ECF 301; 313. Court employees in the District of Hawaii follow a convention of using “EP” for docket entries that record what has occurred in proceedings attended by a judge and participants in a case. A minute order, by contrast, is designated by “EO” (for “Entering Order”), which is used to designate a judge's pronouncement made when the judge is not in a proceeding with the parties.

         The distinction between minutes and minute orders is a longstanding one. Even before the District of Hawaii implemented its ECF system in 2006, EP and EO designations governed whether hard copies of activity in the docket were mailed to counsel. Minute orders (bearing “EO” designations) were mailed, as were formal written orders, while pure minutes (bearing “EP” designations) were not. Anything marked “EP” was not ...

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