United States District Court, D. Hawaii
WAYNE FERGERSTROM, SHENANDOAH KAIAMA, WINDY KAIAMA, individually and on behalf of all others similarly situated, Plaintiffs,
PNC BANK, N.A., Defendant.
ORDER (1) DENYING MOTION FOR RECONSIDERATION AND (2)
DENYING IN PART AND DENYING AS MOOT IN PART MOTION TO
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
summary judgment, Defendant argued, among other things, that
the relief Plaintiffs sought in this action was barred by the
operation of Hawai‘i law requiring those who wish to
impeach a foreclosure proceeding to do so before entry of a
new certificate of title for the subject property. In support
of this argument, Defendant submitted four certificates of
title for the subject properties in this action, which, on
their face, respectively stated: “Issued:
5/13/2010”; “Issued: 12/03/2010”;
“Issued: 4/15/2010”; and “Issued:
response, Plaintiffs argued, among other things, that
Defendant had failed to establish when the certificates of
title had been entered. In support of this argument,
Plaintiffs provided no evidence. Instead, Plaintiffs
asked this Court to take judicial notice of a statement made
in a decision by the Supreme Court of Hawai‘i. Faced
with this evidentiary imbalance on summary judgment, the
Court, perhaps predictably, found that the certificates of
title provided by Defendant were “issued and entered as
of the date indicated on the face of each certified
copy…” and therefore precluded Plaintiffs'
subsequent foreclosure impeachment efforts.
months after the Court ruled in favor of Defendant at summary
judgment, and after Plaintiffs had appealed that ruling to
the Ninth Circuit Court of Appeals, Plaintiffs filed the
instant motion for reconsideration pursuant to Rules 60(b)
and 62.1 of the Federal Rules of Civil Procedure. Plaintiffs
argue that newly discovered evidence warrants reconsidering
the Court's summary judgment ruling because, since then,
the State of Hawai‘i has begun “altering”
certificates of title, including the ones at issue in this
case, to reflect when they were entered. Because
Plaintiffs' appeal is still pending, this Court lacks
jurisdiction to grant their motion for reconsideration.
However, the Court does have jurisdiction to deny the motion
or indicate whether it raises a substantial issue. Exercising
that jurisdiction, the Court DENIES the motion for
reconsideration because Plaintiffs have failed to show
reasonable diligence for purposes of Rule 60(b).
October 10, 2013, Defendant PNC Bank, N.A. (PNC Bank or
Defendant) removed Plaintiff Wayne Fergerstrom's
(Fergerstrom) September 9, 2013 state court Complaint. Dkt.
Nos. 1, 1-1. On May 18, 2018, Fergerstrom, as well as new
plaintiffs Shenandoah and Windy Kaiama (Shenandoah Kaiama and
Windy Kaiama, together, “the Kaiamas, ” and,
collectively with Fergerstrom, “Plaintiffs”),
filed an Amended Complaint against PNC Bank. Dkt. No. 91.
13, 2018, PNC Bank moved for summary judgment on various
grounds, including the one mentioned above with respect to
the certificates of title. Dkt. Nos. 100, 100-1. On the same
day, Plaintiffs filed a motion for class certification. Dkt.
No. 103. On August 7, 2018, Plaintiffs opposed the motion for
summary judgment on various grounds, including as described
above with respect to the certificates of title. Dkt. No.
117. At the same time, PNC Bank opposed the motion for class
certification. Dkt. No. 115.
September 18, 2018, after holding a hearing on the motions
for summary judgment and class certification, Dkt. No. 135,
this Court entered an Order granting the motion for summary
judgment and denying the motion for class certification
(“the September 18 Order”), Dkt. No. 140. As
mentioned above, among other things, this Court found that
the four certificates of title provided by PNC Bank
(collectively, “the PNC certificates of title”)
were “issued and entered as of the date indicated on
the face of each certified copy…[, ]” thereby
precluding Plaintiffs later challenge to the foreclosure
proceedings relating to the subject properties. Id.
at 27. Judgment was entered in favor of PNC Bank the next
day. Dkt. No. 142.
October 16, 2018, Plaintiffs filed a notice of appeal. Dkt.
No. 144. The parties agree that the appeal is still pending
before the Ninth Circuit Court of Appeals.
January 22, 2019, Plaintiffs filed the instant motion for
reconsideration of the September 18 Order. Dkt. No. 151.
Plaintiffs assert that the motion is “based upon the
discovery of new evidence.” Specifically, Plaintiffs
rely upon four certificates of title (collectively,
“Plaintiffs' certificates of title”) that
they say were not available when they opposed summary
judgment. On February 22, 2019, PNC Bank filed an opposition
to the motion for reconsideration, to which Plaintiffs
replied on March 7, 2019. Dkt. Nos. 153-154. As part of their
reply, Plaintiffs attached a Declaration of Leslie T. Kobata
(Kobata), the Assistant Registrar of the Land Court for the
State of Hawai‘i. Dkt. No. 154-1. A few days later, PNC
Bank moved to strike Plaintiffs' reply on the ground that
it relied on evidence not submitted with the motion for
reconsideration, or, alternatively, for leave to file a
sur-reply (“the motion to strike”). Dkt. No. 155.
On March 21, 2019, Plaintiffs filed an opposition to the
motion to strike. Dkt. No. 156.
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)[.]”
Fed.R.Civ.P. 60(b)(2). A Rule 60(b) motion must be filed
within a reasonable time, and, when relying on subsection
(2), “no more than a year after the entry of the
judgment or order or the date of the proceeding.”
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
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).
motion for reconsideration states that it is “based
upon the discovery of new evidence….” Dkt. No.
151 at 1. In their opening memorandum, Plaintiffs, in fact,
bold and italicize that part of Rule 60(b) pertaining to
newly discovered evidence. Dkt. No. 151-1 at 2. The opening
memorandum is, thus, notable by what it fails to discuss: the
standard for relief under Rule 60(b)(2). Read naturally, the
opening memorandum suggests that there is no such standard
beyond a party stumbling upon some evidence they wish they
had encountered earlier. Reality, however, is far different.
A party is only entitled to relief under Rule 60(b)(2) if
they 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, 921 F.2d at
one of these prerequisites is even mentioned in
Plaintiffs' opening memorandum. That is reason alone
to deny Plaintiffs the relief they seek. Due diligence is
perhaps the most obvious problem with Plaintiffs' motion,
illustrated by the following example. In the opening
memorandum, it is asserted that Plaintiffs' certificates
of title were not available when they opposed summary
judgment and, “at some time after” summary
judgment, Plaintiffs' certificates of title became
available. Conceivably, these assertions pertain to the issue
of diligence. But instead of explaining how, Plaintiffs shirk
their burden, relying instead on their imprecision and
leaving it to the Court to discern whether discovery
“some time after” satisfies their diligence
obligation under Rule 60(b)(2). This Court rejects any
suggestion that counseled litigants can abandon their
responsibility to present their argument in the context of
the applicable governing law. This is precisely what
Plaintiffs have done with their motion for reconsideration.
are little better in the reply memorandum. Again, Plaintiffs
refuse to acknowledge that there is an actual legal standard
for analyzing evidence relied upon for purposes of Rule
60(b)(2). Instead, Plaintiffs indicate the importance they
attach to the fundamental standard for the relief they seek
when they contemptuously state that PNC Bank's
more-than-valid arguments in opposition- that the opening
memorandum failed to explain how Plaintiffs' certificates
of title constituted evidence in existence at the time of
judgment or how Plaintiffs had exercised due diligence-are
“post-hoc” “red herrings.” What
Plaintiffs mean by “post-hoc” in ...