United States District Court, D. Hawaii
PHILLIP B. KRIEGE, Plaintiff,
STATE OF HAWAII CONSUMER PROTECTION DIVISION, et al., Defendant.
ORDER DENYING AFFIDAVIT TO PROCEED
Derrick K. Watson, United States District Judge.
April 30, 2018, the Court dismissed this action without
prejudice after pro se Plaintiff Phillip B. Kriege failed to
respond to or comply with prior orders of the Court. Dkt. No.
89. Over seven months later, Kriege, who still appears to be
proceeding pro se, filed an “Affidavit to
Proceed.” Dkt. No. 91. Because Kriege is proceeding pro
se, the Court liberally construes his Affidavit to Proceed as
a motion for reconsideration of the dismissal of this action.
In that light, the Affidavit to Proceed is DENIED because
Kriege provides no explanation for why dismissal of this
action should be reconsidered.
procedural background of this action is set forth in the
Court's Orders of July 3, 2017 and March 12, 2018. Dkt.
Nos. 61, 86. For present purposes, the Court refers to the
March 12, 2018 Order. Therein, the Court granted Defendant
Gregg N. Morimoto's motion for judgment on the pleadings,
but granted Kriege limited leave to file an amended complaint
by April 9, 2018. Dkt. No. 86.
April 9, 2018, rather than filing an amended complaint,
Kriege filed a “Notice to Vacate Action and
Estoppel.” Dkt. No. 87. Although it appeared that
Kriege may have wanted to voluntarily dismiss this action,
because the Notice to Vacate Action and Estoppel was not
clear in that regard, the Court instructed Kriege to file a
notice by April 25, 2018, stating whether he intended to
voluntarily dismiss this action or, alternatively, proceed by
filing an amended complaint in accordance with the March 12,
2018 Order. Dkt. No. 88. The Court also forewarned Kriege
that if he did not file a notice by April 25, 2018, the Court
intended to dismiss this action without prejudice.
April 25, 2018 came and went with no word from Kriege, on
April 30, 2018, the Court dismissed this action without
prejudice due to Kriege's failure to respond to or comply
with prior orders of the Court. Dkt. No. 89. Judgment was
entered the same day. Dkt. No. 90. Nothing occurred in this
action thereafter until the filing of the instant Affidavit
to Proceed on December 18, 2018.
explained earlier, because Kriege is proceeding pro se, and
in light of the procedural posture of this dismissed action,
the Court construes the Affidavit to Proceed as a motion for
reconsideration. A motion for reconsideration filed more than
28 days after the entry of judgment is construed under Rule
60(b) of the Federal Rules of Civil Procedure. See
Fed.R.Civ.P. 59(e), 60(c); Gould v. Mut. Life Ins. Co. of
New York, 790 F.2d 769, 772 (9th Cir. 1986).
to Rule 60(b), a court may relieve a party from a final
judgment or order due to, inter alia, mistake, newly
discovered evidence, fraud, the judgment being void or
satisfied, or any other reason that justifies relief.
Fed.R.Civ.P. 60(b)(1)-(6). A Rule 60(b) motion must be filed
within a reasonable time. Fed.R.Civ.P. 60(c)(1).
Affidavit to Proceed, Kriege provides no explanation for why
he should be relieved from the order dismissing this action
without prejudice. Notably, Kriege provides no explanation
for why he failed to file an amended complaint in compliance
with the March 12, 2018 Order or why he failed to file a
timely notice informing the Court as to whether he intended
to voluntarily dismiss or proceed with this action in
compliance with the April 10, 2018 Order. Moreover, although
the Affidavit to Proceed appears to be a very
belated attempt by Kriege to now inform that he wishes to
proceed with this action, Kriege has still not filed an
amended complaint in an attempt to correct the numerous
deficiencies the Court found existed with his allegations in
the March 12, 2018 Order. As a result, the Court finds that Rule
60(b)(6) relief is not warranted here. See Cmty. Dental
Services v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002)
(“We have held that a party merits relief under Rule
60(b)(6) if he demonstrates extraordinary circumstances which
have prevented or rendered him unable to prosecute his
case.”) (quotation and alteration omitted).
liberally construing the assertions Kriege makes in the
Affidavit to Proceed, he arguably contends that the Court was
mistaken in dismissing this action. But Kriege points to no
specific mistake and, even if he did, he does not explain why
the purported mistake is, in fact, a mistake of law or
fact. Next, Kriege makes no attempt to claim
that the Affidavit to Proceed is premised upon newly
discovered evidence. Although various exhibits are attached to
the Affidavit to Proceed, they are documents that are already
in the record of this action. Next, fraud and/or misconduct
appears to be the main thrust of the Affidavit to Proceed.
Unfortunately, the fraud and/or misconduct to which Kriege
alludes is purported misconduct of this Court, not of
Defendants. Contrary to Kriege's assertions, the Court
has not blocked his access to justice. Instead, the Court has
provided Kriege with the fullest opportunity to litigate his
claims. The fact that this action has been dismissed is
simply the result of Kriege's own conduct or lack
thereof. Next, again, although arguably Kriege's
assertions could be construed as suggesting the Judgment in
this case is void, he does not make any reasoned explanation
as to why that is so. Therefore, the Court does not further
address this reason. Finally, Kriege does not attempt to
suggest, and there would be no basis to find even if he did,
that the Judgment in this case has been satisfied or applying
it prospectively would no longer be equitable. As a result,
the Court finds that none of the reasons set forth in Rule
60(b)(1)-(5) is applicable here, and thus, relief under Rule
60(b) is not warranted.
foregoing reasons, the Affidavit to Proceed, ...