United States District Court, D. Hawaii
ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL
RECONSIDERATION OF THE ORDER GRANTING STATE OF HAWAII'S
MOTION TO EXCLUDE EXPERT REPORTS OF DAVID J. BURGER AND STEVE
D. CHEE; EXHIBITS A AND B
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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).
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.
The Motion for Partial Reconsideration Is Untimely.
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.
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
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.
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. 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. 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.
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.
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 ...