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Lake v. Ohana Military Communities, LLC

United States District Court, D. Hawaii

June 13, 2019

KENNETH LAKE, CRYSTAL LAKE, HAROLD BEAN, MELINDA BEAN, KYLE PAHONA, ESTEL PAHONA, TIMOTHY MOSELEY, ASHLEY MOSELEY, RYAN WILSON, and HEATHER WILSON, Plaintiffs,
v.
OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC., DOE DEFENDANTS 1-10, Defendants.

          ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION OF ORDER DISMISSING PLAINTIFFS' UNFAIR COMPETITION CLAIM

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE.

         On August 1, 2017, this Court issued its Order Granting in Part and Denying in Part Defendants' Motion to Dismiss (“8/1/17 Order”). [Dkt. no. 63.[1] On April 29, 2019, Plaintiffs Kenneth Lake, Crystal Lake, Harold Bean, Melinda Bean, Kyle Pahona, Timothy Moseley, and Ashley Moseley (“Plaintiffs”) filed their Motion for Reconsideration of Order Dismissing Plaintiffs' Unfair Competition Claim (“Motion for Reconsideration”). [Dkt. no. 141.] Defendants Ohana Military Communities, LLC and Forest City Residential Management, LLC (“Defendants”) filed their memorandum in opposition on May 14, 2019, and Plaintiffs filed their reply on May 28, 2019. [Dkt. nos. 144, 154.] 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”). Plaintiffs' Motion for Reconsideration is hereby denied for the reasons set forth below.

         BACKGROUND

         Plaintiffs are current or former residents of rental housing at Kaneohe Marine Corp Base Hawaii (“MCBH”). The crux of Plaintiffs' claims is that the soil in some of the residential neighborhoods at MCBH is contaminated, and Defendants failed to perform adequate remediation measures and failed to disclose the contamination to MCBH residents. Plaintiffs allege they were each exposed to the contaminated soil: 1) because the soil in their respective neighborhoods was contaminated and/or they routinely visited and traveled through neighborhoods with contaminated soil; and 2) as a result of dust and dirt created from demolition and construction on MCBH.

         The operative pleading is the First Amended Complaint, which was filed on September 20, 2017. [Dkt. no. 75.] At issue in the instant Motion for Reconsideration is Plaintiffs' unfair methods of competition (“UMOC”) claim, pursuant to Haw. Rev. Stat. § 480-2(a), [2] against both Defendants. The 8/1/17 Order addressed the UMOC claim in Plaintiffs' original Complaint, which was filed in state court on September 14, 2016.[3] [Notice of Removal, filed 10/13/16 (dkt. no. 1), Decl. of Christine A. Terada, Exh. 1.] Plaintiffs' UMOC claim was dismissed, with prejudice, because it was “based upon the payment of increased rent and other expenses, which is insufficient to plead an injury to property for a UMOC claim.”[4] 8/1/17 Order, 2017 WL 4563079, at *10. Plaintiffs now argue this Court made a manifest error of law in dismissing Plaintiffs' UMOC claim because “the payment of money wrongfully induced constitutes harm to ‘business or property.'” [Motion for Reconsideration at 2.]

         STANDARD

         Plaintiffs bring their Motion for Reconsideration pursuant to Fed.R.Civ.P. 60(b)(1) and Local Rule 60.1(c). [Motion for Reconsideration at 2.] Rule 60(b) states: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.” (Emphasis added.) Plaintiffs bring the instant motion under the wrong rule. Rule 60(b)(1) is inapplicable because the 8/1/17 Order is not a final order.[5]

         Local Rule 60.1 states: “Motions for reconsideration of interlocutory orders may be brought only upon the following grounds . . . (c) Manifest error of law or fact.” (Emphasis added.) This Court has previously stated a motion for reconsideration

“must accomplish two goals. First, a motion for reconsideration must demonstrate reasons why the court should reconsider its prior decision. Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” See Davis v. Abercrombie, Civil No. 11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D. Hawaii June 2, 2014) (citation and internal quotation marks omitted). . . . “Mere disagreement with a previous order is an insufficient basis for reconsideration.” Davis, 2014 WL 2468348, at *3 n.4 (citations and internal quotation marks omitted).

Heu v. Waldorf=Astoria Mgmt. LLC, CIVIL 17-00365 LEK-RLP, 2018 WL 2011905, at *1 (D. Hawai`i Apr. 30, 2018) (alteration in Heu) (some citations omitted).

         DISCUSSION

         I. Timeliness

         Plaintiffs' Motion for Reconsideration is not based on any intervening legal authority. See Local Rule LR60.1(b).[6] Local Rule 60.1 states a motion for reconsideration alleging manifest errors of law or fact “must be filed and served not more than fourteen (14) days after the court's written order is filed.” Plaintiffs filed the Motion for Reconsideration almost twenty-one months after the 8/1/17 Order was issued. In fact, although the 8/1/17 Order dismissed Plaintiffs' UMOC claim with prejudice, Plaintiffs still insisted on including a UMOC claim in the First Amended Complaint, and the claim was stricken. [Order Granting in Part and Denying in Part Defs.' Motion to Dismiss and/or Strike Pltfs.' First Amended Complaint [Dkt 75], filed 5/31/18 (dkt. no. 98) (“5/31/18 Order”), at 6.[7] Plaintiffs filed their Motion for Reconsideration almost eleven months after the filing of the 5/31/18 Order.

         The fourteen-day filing deadline for Local Rule 60.1(c) motions comes as no surprise to Plaintiffs, as evidenced by their August 15, 2017 motion seeking reconsideration of the 8/1/17 Order on other grounds. As well as being a waste of time, the instant Motion for Reconsideration is clearly untimely and can be denied on that basis alone. However, ...


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