United States District Court, D. Hawaii
ORDER DENYING THE GOLDBERGS' MOTION FOR
E. KOBAYASHI UNITED STATES DISTRICT JUDGE.
April 12, 2019, this Court issued an Order Sua
Sponte Remanding the Instant Case to State Court
(“4/12/19 Order”). [Dkt. no. 19. On April 26,
2019, pro se Defendants/Counterclaimants Albert M. Goldberg
(“A. Goldberg”) and Elinor K. Goldberg (“E.
Goldberg” and collectively “the Goldbergs”)
filed a motion for reconsideration of the 4/12/19 Order
(“Motion for Reconsideration”). [Dkt. no. 22.]
Plaintiff/Counterclaim Defendant Bank of America, N.A.
(“BOA”) filed its memorandum in opposition on May
13, 2019. [Dkt. no. 27.] The Court has considered the Motion
for Reconsideration as a non-hearing matter pursuant to Rule
LR7.2(e) of the Local Rules of Practice for the United States
District Court for the District of Hawaii (“Local
Rules”). The Goldbergs' Motion for Reconsideration
is hereby denied for the reasons set forth below.
factual and procedural background of this case is set forth
in the 4/12/19 Order and will not be repeated here. In the
4/12/19 Order, this Court sua sponte remanded the
instant case to the State of Hawai'i, Third Circuit Court
(“state court”) because A. Goldberg's attempt
to remove the action was untimely. [4/12/19 Order at 7-8.] In
addition, this Court concluded that neither federal question
jurisdiction nor admiralty/maritime/prize jurisdiction
applies in this case. [Id. at 8-9.] To the extent
that the removal was based on diversity jurisdiction: A.
Goldberg was required to obtain the joinder in, or consent
to, the removal by Defendant Mortgage Electronic Registration
Systems Inc. (“MERS”) and Defendant Pualani
Estates at Kona Community Association (“Pualani
Estates”), but he failed to do so; [id. at
9-12;] and the Notice of Removal failed to establish that
“the action is between ‘citizens of different
States, '” [id. at 12 (quoting 28 U.S.C.
§ 1332(a)(1))]. Thus, this Court ordered that the case
be remanded to the state court.
Motion for Reconsideration, the Goldbergs argue that all of
these rulings were erroneous, and they assert the instant
case should remain in this district court.
order remanding a case to state court is considered a
dispositive, i.e. final, order. See, e.g.,
Estate of Tungpalan v. Crown Equip. Corp., Civil No.
11-00581 LEK-BMK, 2013 WL 2897777, at *5-6 (D. Hawai'i
June 12, 2013) (considering a party's objections to the
magistrate judge's recommendation to remand the case as a
dispositive matter). “When a ruling has resulted in a
final judgment or order . . . a motion for reconsideration
may be construed as either a motion to alter or amend
judgment under Federal Rule of Civil Procedure 59(e) or a
motion for relief from judgment under [Federal] Rule [of
Civil Procedure] 60(b).” Grandinetti v. Sells,
CIV. NO. 16-00517 DKW/RLP, 2016 WL 6634868, at *1 (D.
Hawai'i Nov. 8, 2016) (citing Sch. Dist. No. 1J
Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th
Cir. 1993)). Because there has been no judgment entered in
this case, the Goldbergs' Motion for Reconsideration is
reviewed as a Rule 60(b) motion for relief from the 4/12/19
60(b) states, in relevant part:
On motion and just terms, the court may relieve a party . . .
from a final . . . order . . . for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it ...