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Henao v. Hilton Grand Vacations Company, LLC

United States District Court, D. Hawaii

November 13, 2018

JOSE HENAO, Plaintiff,
v.
HILTON GRAND VACATIONS COMPANY, LLC, Defendant.

          ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE

         On October 6, 2017, this Court entered an Order granting Defendant Hilton Grand Vacations Company, LLC's (Hilton) motion for summary judgment. Dkt. No. 26. Judgment was entered the same day. Dkt. No. 27. On November 6, 2017, Plaintiff Jose Henao filed a notice of appeal. Dkt. No. 30. That appeal is still pending. On October 9, 2018, Henao filed the instant motion for relief from judgment (“the motion”), pursuant to Fed.R.Civ.P. 60(b)(2), (3), and 62.1. Dkt. No. 38. Because Henao's appeal is pending, the Court lacks jurisdiction to grant the motion. The Court does, however, have jurisdiction to deny the motion or indicate whether it raises a substantial issue. Exercising that jurisdiction, the Court DENIES the motion because Henao has failed to show that he is entitled to relief under Rule 60(b)(2) or (3).

         PROCEDURAL BACKGROUND

         On December 6, 2016, Hilton removed Henao's one-count Complaint of retaliation in violation of the Hawaii Whistleblower Protection Act (HWPA). Dkt. No. 1. On June 5, 2017, Hilton moved for summary judgment, asserting that, because Henao was still employed by Hilton, he did not suffer an adverse employment action. Dkt. No. 17.

         On October 6, 2017, this Court entered an Order granting Hilton's motion for summary judgment (“the October 6 Order”). Dkt. No. 26. Among other things, this Court found that (1) an adverse employment action is an essential element of a claim under HWPA, (2) the sole adverse employment action Henao identified as occurring was his termination, (3) the evidence contradicted Henao's assertion that he was terminated on July 4, 2016, and (4) to the extent the evidence Henao submitted in opposition to summary judgment was admissible, it failed to raise a genuine issue of material fact as to whether Henao had been terminated. Judgment was entered in favor of Hilton the same day. Dkt. No. 27.

         On November 3, 2017, Henao filed a motion for reconsideration of the October 6 Order. Dkt. No. 28. Henao argued that he should be allowed to amend his complaint in order to allege as an adverse employment action that Hilton had suspended him. Henao asserted that his suspension was a fact this Court had found in the October 6 Order. Shortly thereafter, the Court summarily denied the motion for reconsideration for various reasons, including Henao having “invented” the fiction of the Court finding him to have been suspended. Dkt. No. 29.

         On November 6, 2017, Henao filed a notice of appeal. Dkt. No. 30. Both parties assert that the appeal is still pending before the Ninth Circuit Court of Appeals.

         On October 9, 2018, Henao filed the instant motion. Dkt. No. 38. Henao argues that the motion is based upon newly discovered evidence. Specifically, Henao relies upon (1) a declaration, dated March 1, 2018, from Leina'ala S.P. Isa (“the March 2018 Isa Declaration”), (2) a declaration, dated October 5, 2018, from Ruby Richardson (“the Richardson Declaration”), and (3) a decision in Maybin v. Hilton Grand Vacations, LLC, No. 17-cv-00489 (DKW). On October 24, 2018, Hilton filed an opposition to the motion. Dkt. No. 41. In doing so, Hilton submitted a declaration, dated October 16, 2018, from Leina‘ala Ahu-Isa (“the October 2018 Isa Declaration”).[1] Dkt. No. 40-1. On October 31, 2018, Henao filed a reply in support of the motion. Dkt. No. 42.

         LEGAL STANDARD

         The Court may relieve a party from a final judgment or order for, inter alia, “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b), ” or fraud, misrepresentation, or misconduct. Fed.R.Civ.P. 60(b)(2), (3). A Rule 60(b) motion must be filed within a reasonable time, and, when relying on subsections (2) or (3), “no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c)(1).

         A party moving under Rule 60(b)(2) must show that the evidence relied upon “(1) existed at the time of the trial, (2) could not have been discovered through due diligence, and (3) was of such magnitude that production of it earlier would have been likely to change the disposition of the case.” Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990).

         When an appeal is pending and a timely motion for relief has been made, a district court may “(1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.” Fed.R.Civ.P. 62.1(a).

         DISCUSSION

         The opening memorandum in support of the motion is notable for what it lacks-namely, any discussion of why the evidence upon which Henao relies is newly discovered for purposes of Rule 60(b)(2). In fact, other than conclusorily stating that the evidence creates a genuine issue of material fact, Henao does not explain why the motion should be granted. As for Rule 60(b)(3), other than containing the text “and (3), ” the opening memorandum is completely silent on how that provision applies here. The words “fraud, misrepresentation, or misconduct”-the grounds upon which relief under Rule 60(b)(3) can be granted-are never mentioned, much less applied. Moreover, Henao appears ...


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