United States District Court, D. Hawaii
KENNETH LAKE, CRYSTAL LAKE, HAROLD BEAN, MELINDA BEAN, KYLE PAHONA, ESTEL PAHONA, TIMOTHY MOSELEY, ASHLEY MOSELEY, RYAN WILSON, and HEATHER WILSON, Plaintiffs,
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
E. KOBAYASHI UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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),  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. [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.” 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.]
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.
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).
Motion for Reconsideration is not based on any intervening
legal authority. See Local Rule
LR60.1(b). 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
Plaintiffs filed their Motion for Reconsideration almost
eleven months after the filing of the 5/31/18 Order.
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, ...