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Yoshimura v. Kaneshiro

United States District Court, D. Hawaii

August 26, 2019

TRACY T. YOSHIMURA, ET AL., Plaintiffs,
v.
KEITH M. KANESHIRO, ETC., ET AL., Defendants.

          ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE COURT'S MAY 15, 2019 ORDER [DKT 121] ON THE SOLE ISSUE OF WHETHER THE PDS MACHINES WERE PREVIOUSLY ADJUDICATED TO BE GAMBLING DEVICES

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE.

         On May 15, 2019, this Court issued its Order Granting in Part and Denying in Part Defendant City & County of Honolulu's Motion for Summary Judgment and Granting in Part and Denying in Part Defendant Katherine Kealoha's and Defendant Keith M. Kaneshiro's Joinders (“5/15/19 Order”). [Dkt. no. 121.[1] On June 12, 2019, Plaintiffs Tracy T. Yoshimura; Eugene M. Simeona, Jr.; Michael D. Miller, Jr.; Gary G. Danley, Jr.; Quentin D.R. Canencia; Desiree U. Haina; Michael A. Madali, Jr.; and Clayton Simeona (collectively “Plaintiffs”), filed their Motion for Reconsideration of the Court's May 15, 2019 Order [Dkt 121] on the Sole Issue of Whether the PDS Machines Were Previously Adjudicated to Be Gambling Devices (“Motion for Reconsideration”). [Dkt. no. 122.] On June 27, 2019, Defendant Katherine Kealoha (“Kealoha”) filed her memorandum in opposition (“Kealoha Opposition”), and Defendants the City & County of Honolulu (“City”) and Tommy Kong (“Kong”) filed their memorandum in opposition to the Motion for Reconsideration (“City Defendants Opposition”). [Dkt. nos. 125, 126.] That same day, Defendant Keith M. Kaneshiro (“Kaneshiro”) filed his joinder of simple agreement in both the Kealoha Opposition and the City Defendants Opposition. [Dkt. no. 127.] On July 11, 2019, Plaintiffs filed their reply. [Dkt. no. 129.] 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

         The parties are familiar with the factual and procedural history of this case, which is set forth in the 5/15/19 Order. See 5/15/19 Order, 2019 WL 2127293, at *2-4. Only facts relevant to the Motion for Reconsideration will be repeated here.

         On December 13, 2018, the City filed its Motion for Summary Judgment (“Motion”), which sought summary judgment as to all of Plaintiffs' claims, based on, inter alia, a settlement agreement entered into between the City and the plaintiffs in PJY Enterprises LLC, et al. v. Kaneshiro, et al., CV 12-00577 LEK-RLP (“PJY Lawsuit” and “CV 12-00577”).[2] [Dkt. no. 58 at 2.] In addition, the City argued Plaintiffs' claims were barred by claim and/or issue preclusion, and the doctrines of promissory and/or equitable estoppel.[3] [Id.] In the 5/15/19 Order, the Court granted summary judgment in part in favor of the City as to: 1) Plaintiffs Eugene M. Simeona, Jr., Michael D. Miller, Jr., Gary G. Danley, Jr., Quentin D.R. Canencia, Desiree U. Haina, Michael A. Madali, Jr., and Clayton Simeona's claim for negligent hiring against Defendants Kaneshiro and the City; and 2) “the City's arguments regarding issue preclusion, insofar as Plaintiffs are barred from asserting that the [Products Direct Sweepstakes (“PDS”)] terminals are not gambling devices.” 2019 WL 2127293, at *14-15. The Motion was denied in all other respects. Id. at *15.

         Plaintiffs' Motion for Reconsideration asks this Court to amend its ruling that they are barred by issue preclusion from advancing the argument that the PDS terminals are not gambling devices. See Motion for Reconsideration at 2-3. In particular, Plaintiffs challenge the Court's analysis from following passage in the 5/15/19 Order:

[A]s to the City's contention that Plaintiffs are precluded from asserting the PDS terminals are not gambling machines, the Court agrees this issue was squarely litigated and finally decided in the PJY Summary Judgment Order, and affirmed by the Ninth Circuit. See 2014 WL 12694456 at *15, aff'd, 679 Fed.Appx. 621');">679 Fed.Appx. 621. Thus, to the extent that Plaintiffs have alleged or attempt to argue that the PDS terminals are not gambling devices, they are barred by issue preclusion from advancing this argument in this matter.

2019 WL 2127293, at *14.

         Plaintiffs argue this Court's prior ruling in the PJY Summary Judgment Order did not address the PDS terminals. Plaintiffs base their argument on the following passage from the PJY Summary Judgment Order:

This Court emphasizes that it makes no findings or conclusions regarding the manner in which [the PJY] Plaintiffs, after the February 14, 2013 seizure, use or used terminals or machines that are similar to the PDS terminals at issue in this case. . . . This Court finds that, at the time of the seizures, the users of the PDS terminals staked or risked the money that they deposited into the terminals upon the outcome of the games of chance.

         [Motion for Reconsideration at 3 (quoting CV 12-00577, PJY Summary Judgment Order, 2014 WL 12694456, at *14).] Plaintiffs ask this Court to reconsider and modify the 5/15/19 Order by ruling that Plaintiffs are not barred by issue preclusion from arguing the PDS terminals are not gambling devices, but that issue preclusion bars Plaintiffs “from arguing that the promotion, at the time of the seizures, was not gambling, because that issue was previously litigated.” Id. at 4.

         DISCUSSION

         I. Timeliness

         Plaintiffs initially assert the instant motion is brought pursuant to Fed.R.Civ.P. 59(e), [Motion for Reconsideration at 4, ] which allows parties to file a motion to alter or amend a judgment “no later than 28 days after the entry of the judgment, ” and permits the Court to reconsider and amend a previous order. However, no final judgment has been entered in this action, therefore Rule 59(e) is inapplicable. See Bank of Am., N.A. v. Goldberg, CIV. NO. 19-00076 LEK-KJM, 2019 WL 2374870, at *1 (D. Hawai`i June 5, 2019) (declining to apply Rule 59(e) where no judgment was entered); Tongson v. Cty. of Maui, Civ. No. 05-00683 SOM/LEK, 2007 WL 313312, at *1 (D. Hawai`i Jan. 26, 2007) (citing Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 466-67 (9th Cir. 1989) (“Rule 59(e) clearly contemplates entry of judgment as a predicate to any motion.”)). Further, because the 5/15/19 Order only granted partial summary judgment, it is not a final order that can be reconsidered under Fed.R.Civ.P. 60(b). See Rule 60(b) (“On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding, ” (emphasis added)); Caba ...


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