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Auld-Susott v. Galindo

United States District Court, D. Hawaii

July 9, 2018

EVAN AULD-SUSOTT, as Trustee for 1 IRREVOCABLE LIEF INSURANCE TRUST OF JOHN L. SUSOTT AND KATHRYN C. SUSOTT UAD 8/17/1988 AS RESTATED, EXEMPT TRUST FBO DANIEL C. SUSOTT, and 2 IRREVOCABLE LIFE INSURANCE TRUST OF JOHN L. SUSOTT AND KATHRYN C. SUSOTT UAD 8/17/1988 AS RESTATED, NON-EXEMPT TRUST FBO DANIEL C. SUSOTT; and JOHN L. SUSOTT, Plaintiffs,
v.
LAURYN GALINDO, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR RECONSIDERATION OF THIS COURT'S RULING THAT SHE MAY NOT CALL ANY WITNESSES AT TRIAL

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE.

         On July 3, 2018, Defendant Lauyrn Galindo (“Defendant”) filed her Motion for Reconsideration of This Court's Ruling That She May Not Call Any Witnesses at Trial (“Motion for Reconsideration”). [Dkt. no. 129.] On July 9, 2018, Plaintiffs Evan Auld-Susott, as Trustee for (1) Irrevocable Life Insurance Trust of John L. Susott and Kathryn C. Susott UAD 8/17/1988 as Restated, Exempt Trust FBO Daniel C. Susott, and (2) Irrevocable Life Insurance Trust of John L. Susott and Kathryn C. Susott UAD 8/17/1988 as Restated, Non-Exempt Trust FBO Daniel C. Susott; and John L. Susott (collectively, “Plaintiffs”) filed their memorandum in opposition. [Dkt. no. 134.] The Court has considered the Motion for Reconsideration as 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”). Defendant's Motion for Reconsideration is hereby granted insofar as Defendant's declaration of her own direct testimony will be permitted, and denied as to all other witnesses.

         BACKGROUND

         On June 12, 2018, this Court issued an entering order stating that, in lieu of live direct testimony, the party calling a witness must file a declaration setting forth the direct testimony of that witness (“6/12/18 EO”). [Minutes, dkt. no. 104.] The 6/12/18 EO further stated: “Declarations are due 6/26/2018.” [Id. (emphasis in original).] Defendant failed to file any declarations on or before June 26, 2018. Thereafter, on July 1, 2018, Defendant filed the Declaration of Defendant Lauren Galindo for Trial (“Galindo Declaration”). [Dkt. no. 123.] On July 2, 2018, Defendant filed the Declaration of Emerald Starr for Trial (“Starr Declaration”) and the Declaration of Harvey L. Cohen for Trial (“Cohen Declaration”). [Dkt. nos. 124 (Starr Decl.), 126 (Cohen Decl.).] Also on July 2, 2018, at the final pre-trial conference before the non-jury trial scheduled for July 10, 2018, Defendant's counsel failed to provide any justification for the late filings of the declarations. Accordingly, because they were filed after the deadline, this Court orally ruled these declarations will not be considered. [Minutes, dkt. no. 125.] In the instant Motion for Reconsideration, Defendant argues that, even though they were late-filed, the Galindo Declaration and Starr Declaration should be considered.

         STANDARD

         This Court has previously stated 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). . . . “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). Local Rule 60.1 states, in relevant part: “Motions for reconsideration of interlocutory orders may be brought only upon the following grounds: (a) Discovery of new material facts not previously available; (b) Intervening change in law; [or] (c) Manifest error of law or fact.”

         DISCUSSION

         The 6/12/18 EO required submission of written declarations in lieu of direct oral testimony (“Declarations Procedure”). Requiring use of the Declarations Procedure is appropriate. See Kuntz v. Sea Eagle Diving Adventures Corp., 199 F.R.D. 665, 667 (D. Hawai`i 2001) (footnote omitted) (citing In re Gergely, 110 F.3d 1448, 1452 (9th Cir. 1997) (“Requiring evidence to be presented by declaration is an accepted and encouraged technique for shortening bench trials that is consistent with Rule 611(a)(2)”)).

         A federal court is authorized “to issue any just orders, including those authorized by [Fed. R. Civ. P.] 37(b)(2)(A)(ii)-(vii), if a party or its attorney: fails to obey a scheduling or other pretrial order.” Fed.R.Civ.P. 16(f)(1)(C). In addition:

Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses - including attorney's fees - incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.

Rule 16(f)(2). The Ninth Circuit has recognized that district courts

routinely set schedules and establish deadlines to foster the efficient treatment and resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusions of evidence. The Federal Rules of Civil Procedure explicitly authorize the ...

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