United States District Court, D. Hawaii
TBV PRODUCTIONS, LLC, and HUNTER KILLER PRODUCTIONS, INC., Plaintiffs,
APTOIDE S.A. and JOHN DOES 1-10, Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR
A. OTAKE UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs Hunter Killer Productions, Inc., and
TBV Productions, LLC's, Motion for Reconsideration of the
Court's April 9, 2019 Entering Order (“EO”),
Doc. No. 10, denying Plaintiffs' Ex Parte Application for
Entry of Temporary Restraining Order and Preliminary
Injunction, filed on April 6, 2019, Doc. No. 7. This matter
is suitable for disposition without a hearing pursuant to
Rule 7.2(e) of the Local Rules of Practice for the U.S.
District Court for the District of Hawaii (“Local
Rules”). For the reasons set forth below the Motion is
seek reconsideration of this Court's EO denying their Ex
Parte Application on the grounds that (1) Plaintiffs
inadvertently did not attach a Declaration of Counsel to the
Motion and (2) other courts did not require personal service
in similar circumstances. Neither claim is a proper basis for
Rule 60.1 governs this Motion, and provides three grounds for
reconsideration of interlocutory orders: “(a)
[d]iscovery of new material facts not previously available;
(b) [i]ntervening change in law; [or] (c) [m]anifest error of
law or fact.” Local Rule 60.1. The Ninth Circuit
requires that a successful motion for reconsideration satisfy
two requirements. “First, a motion for reconsideration
must demonstrate some reason why the Court should reconsider
its prior decision. Second, the motion must set forth facts
or law of a strongly convincing nature to induce the court to
reverse its prior decision.” Jacob v. United
States, 128 F.Supp.2d 638, 641 (D. Haw. 2000) (internal
quotation and citation omitted). Mere disagreement with a
court's analysis is not a sufficient basis for
reconsideration. White v. Sabatino, 424 F.Supp.2d
1271, 1274 (D. Haw. 2006) (citing Leong v. Hilton Hotels
Corp., 689 F.Supp. 1572 (D. Haw. 1988)); 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.” Navajo Nation v. Confederated Tribes and
Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046
(9th Cir. 2003) (citing Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000)).
have not identified the Local Rule 60.1 provision upon which
they rely, but Local Rule 60.1(a) (discovery of new material
facts not previously available) and Local Rule 60.1(c)
(manifest error of law or fact) are the only provisions that
could potentially apply. The arguments advanced by Plaintiffs
fail to offer a basis for reconsideration pursuant to either
provision. The Declaration of Attorney attached to the Motion
does not contain new material facts not previously available,
and under Federal Rules of Civil Procedure
(“FRCP”) 4(k)(1) and 4(k)(2) this Court does not
have jurisdiction over Defendant Aptoide.
Declaration of Counsel attached to the Motion does not
constitute “new evidence not previously
available” and may not serve as the basis for
reconsideration. The Declaration is dated April 6, 2019, and
could have been attached to Plaintiffs' Application. Doc.
No. 11-1. Plaintiffs' failure to file a sufficiently
supported Application cannot serve as an excuse for a second
bite at the apple. Motions for reconsideration are not to be
used for this purpose.
addition, even if the Court were to consider the Declaration
of Counsel, Plaintiffs' Motion would still be denied.
Defendant has not been served, and FRCP 4(k) expressly
requires service of a summons or the filing of a waiver of
service to establish personal jurisdiction over a defendant
under these circumstances. See Fed. R. Civ. P.
4(k)(1)(A), 4(k)(2); see also Jackson v. Hayakawa,
682 F.2d 1344, 1347 (9th Cir. 1982) (“Defendants must
be served in accordance with Rule 4 of the Federal Rules of
Civil Procedure, or there is no personal
jurisdiction.”). Accordingly, the Court cannot exercise
personal jurisdiction over Defendant Aptoide. Plaintiffs
argue in their Motion that service was not required, citing
three district court cases that they did not cite in their
Application. A motion for reconsideration may not be used to
raise arguments that could have been presented earlier. In
addition, the cases Plaintiffs cite are nonbinding, and the
opinions do not contain any discussion about service or
personal jurisdiction that would allow the Court to find
those cases analogous to this case. See generally ABS-CBN
Corp. v. Goldman, No. 17-60440-CIV, 2017 WL 4868179, at
*4 (S.D. Fla. Mar. 24, 2017); Lions Gate Films Inc. v.
Does, No. 214-CV-06033-MMM-AGR, 2014 WL 12580399 (C.D.
Cal. Aug. 4, 2014); Brown Jordan Int'l, Inc. v.
Mind's Eye Interiors, Inc., 236 F.Supp.2d 1152, 1156
(D. Haw. 2002).
have failed to provide a basis for reconsideration, much less
facts or law of a strongly convincing nature to induce the
Court to reverse its prior decision. Mere disagreement with
the EO is ...