United States District Court, D. Hawaii
TRACY T. YOSHIMURA, ET AL., Plaintiffs,
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
E. KOBAYASHI UNITED STATES DISTRICT JUDGE.
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. 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.
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
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”). [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. [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.
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
2019 WL 2127293, at *14.
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.
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.
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 ...