United States District Court, D. Hawaii
ORDER DENYING PLAINTIFFS' RULE 60(B) MOTION FOR
RECONSIDERATION, ECF NO. 43
Michael Seabright, Chief United States
27, 2018, Plaintiffs Anthony Ferretti (“Mr.
Ferretti”) and his wife, Elaine Ferretti (“Mrs.
Ferretti”) (collectively “Plaintiffs”)
filed the instant Motion to vacate this court's June 21,
2018 Order granting (1) Defendant Beach Club Maui, Inc.'s
(“BCM” or Defendant”) Motion to Dismiss
Plaintiffs' Complaint, and granting (2) Plaintiffs'
Request to Amend Complaint (the “June 21 Order”)
(ECF No. 42). ECF No. 43. Plaintiffs contend that the
court's ruling that Hawaii Rule of Civil Procedure
(“HRCP”) 41(a)(1)(B)'s two-dismissal rule
applies to Mr. Ferretti's claims and Mrs. Ferretti's
derivative claims, and therefore, that those claims are
barred by the doctrine of claim preclusion is erroneous. For
the reasons set forth below, the court disagrees.
Plaintiffs' Motion for Reconsideration is DENIED.
January 18, 2016, Plaintiffs, who were passengers on a cruise
ship operated by Norwegian Cruise Lines (“NCL”),
bought and participated in a beach excursion operated by BCM.
Compl. ¶¶ 7, 11-12, 14-18. Mr. Ferretti alleges
that he was seriously injured during the course of this
excursion. In 2017, Mr. Ferretti filed an action in the
United States District Court for the Southern District of
Florida against NCL, BCM, and other entities asserting claims
arising from the January 18, 2016 incident. See Ferretti
v. NCL (Bahamas) Ltd., et al., Civ. No. 17-20202
(GAYLES) (S.D. Fla. 2017) (the “Florida action”),
ECF No. 8-4. On May 2, 2017, Mr. Ferretti voluntarily
dismissed his claims against BCM in that action. See
ECF No. 8-5. The Florida action remains pending against NCL.
January 4, 2018, Mr. and Mrs. Ferretti filed an action in the
State of Hawaii Circuit Court for the Second Circuit (Maui)
asserting claims against BCM arising out of the same January
18, 2016 incident. See Ferretti v. Beach Club Maui,
Inc., Civ. No. 18-1-0005 (the “state court
action”), ECF No. 8-6. Four days later, on January 8,
2018, Plaintiffs voluntarily withdrew their complaint in the
state court action. See ECF No. 8-7. And on January
8, 2018, Plaintiffs filed the instant action against BCM
again asserting claims arising out of the same January 18,
2016 incident. ECF No. 1.
June 21 Order determined that Hawaii's
“two-dismissal rule applies to Mr. Ferretti's
claims and Mrs. Ferretti's derivative claims, and that
those claims are therefore barred by the doctrine of claim
preclusion.” June 21 Order at 14; Ferretti v. Beach
Club Maui, Inc., 2018 WL 3078742, at *6 (D. Haw. June
21, 2018). On June 27, 2018, Plaintiffs filed the instant
Motion for Reconsideration pursuant to Federal Rule of Civil
Procedure 60(b)(1) and (6). ECF No. 43. BCM filed an
Opposition on July 11, 2018, and Plaintiffs filed a Reply on
July 24, 2018. ECF Nos. 52, 55.
to Local Rule 7.2(d), the court finds this matter suitable
for disposition without a hearing.
STANDARDS OF REVIEW
60(b) provides for reconsideration of a final judgment,
order, or proceeding where the movant has shown: “(1)
mistake, surprise, or excusable neglect; (2) newly discovered
evidence; (3) fraud; (4) a void judgment; (5) a satisfied or
discharged judgment; or (6) ‘extraordinary
circumstances' which would justify relief.”
Sch. Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 5
F.3d 1255, 1263 (9th Cir. 1993) (citations omitted).
Reconsideration pursuant to Rule 60 is generally appropriate
upon a showing of one of three grounds: (1) the availability
of new evidence; (2) an intervening change in controlling
law; and (3) the need to correct clear error or prevent
manifest injustice. Id. at 1263; Sierra Club,
Haw. Chapter v. City & Cty. of Honolulu, 486
F.Supp.2d 1185, 1188 (D. Haw. 2007) (“The Ninth Circuit
has recognized that Rule 60(b) may be used to reconsider
legal issues and to reconsider the court's own mistake or
inadvertence.”) (citing Liberty Mut. Ins. Co. v.
E.E.O.C., 691 F.2d 438, 441 (9th Cir. 1982)).
Rule 60.1 authorizes reconsideration of interlocutory orders
upon a showing of one of the same grounds: “(a)
Discovery of new material facts not previously available; (b)
Intervening change in law; [or] (c) Manifest error of law or
fact.” “A ‘manifest error' is
‘[a]n error that is plain and indisputable, and that
amounts to a complete disregard of the controlling law or the
credible evidence in the record.'” Noetzel v.
Haw. Med. Serv. Assoc., 2016 WL 4033099, at *2 (July 27,
2016) (quoting Black's Law Dictionary, 660 (10th
successful motion for reconsideration must demonstrate
reasons why the court should reconsider its prior decision
and set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision. See
Gordon v. Sequeira, 2018 WL 1020113 (D. Haw. Feb. 22,
2018); White v. Sabatino, 424 F.Supp.2d 1271, 1274
(D. Haw. 2006). Mere disagreement with a previous order is an
insufficient basis for reconsideration, and reconsideration
may not be based on evidence and legal arguments that could
have been presented at the time of the challenged decision.
See Haw. Stevedores, Inc. v. HT & T Co., 363
F.Supp.2d 1253, 1269 (D. Haw. 2005). “Whether or not to
grant reconsideration is committed to the sound discretion of
the court.” White, 424 F.Supp.2d at 1274
(quoting Navajo Nation v. Confederated Tribes & Bands
of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th
argue that the court erred in applying the two-dismissal rule
for two reasons: (1) the “same claim” requirement
was not met because there were different plaintiffs and
defendants in the Florida and state court actions, and (2)
the voluntary dismissals “did not dispose of the
entirety of plaintiffs' claim.” Mot. at 7-8.
Plaintiffs further contend that the June 21 Order's
determination that the court lacks discretion to allow Mr.
Ferretti's claims to proceed is erroneous, arguing