Thoma v. Finance Factors, Limited et al

Filing 18

ORDER DISMISSING PLAINTIFF'S 1 COMPLAINT AND EMERGENCY REQUEST FOR RESTRAINING ORDER UNDER ADMIRALTY LAW: "On the basis of the foregoing, Plaintiff John Peter Thoma's Complaint and Emergency Request for Restraining Order under Adm iralty Law, filed May 16, 2011, is HEREBY DISMISSED WITHOUT PREJUDICE. Plaintiff may file an amended complaint on or before July 12, 2011. If Plaintiff amends his complaint, he may file another motion for a temporary restraining order. The Court CAUT IONS Plaintiff that, if he does not file an amended complaint by July 12, 2011, this Court will amend this order to dismiss all of Plaintiff's claims with prejudice. IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on Jun e 28, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOHN PETER THOMA,

)
)
Plaintiff,
)
)
vs.
)
)
FINANCE FACTORS, LTD., ET
)
AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 11-00316 LEK-RLP

ORDER DISMISSING PLAINTIFF’S COMPLAINT AND
EMERGENCY REQUEST FOR RESTRAINING ORDER UNDER ADMIRALTY LAW
Before the Court is pro se Plaintiff John Peter Thoma’s
(“Plaintiff”) Complaint and Emergency Request for Restraining
Order under Admiralty Law (“Motion”), filed May 16, 2011.
Defendants Finance Factors, Ltd., Eric Tsugawa, Esq., and
Christopher Muzzi, Esq. (collectively “Finance Factors
Defendants”), filed their memorandum in opposition on May 27,
2011.

Defendants the Honorable Shackley F. Raffetto, the Second

Circuit Court, State of Hawai‘i, the Honorable Ronald Ibarra, the
Third Circuit Court, State of Hawai‘i, and Robert Triantos, Esq.
(collectively “State Defendants”), filed their memorandum in
opposition on June 2, 2011.

Plaintiff filed a reply on June 13,

2011, and submitted additional documents in court on June 20,
2011.

This matter came on for hearing on June 20, 2011.

Appearing on behalf of the Finance Factors Defendants were
Eric Tsugawa, Esq., and Jason Woo, Esq., and appearing on behalf

of the State Defendants was Robyn Chun, Esq.
pro se.

Plaintiff appeared

After careful consideration of the Motion, supporting

and opposing documents, and the oral arguments, Plaintiff’s
Complaint and Emergency Request for Restraining Order under
Admiralty Law is HEREBY DISMISSED WITHOUT PREJUDICE.
BACKGROUND
I.

Plaintiff’s Motion
The Motion seeks to halt two state court foreclosure

actions initiated by Finance Factors against Plaintiff.

Finance

Factors is represented in those actions by Defendants Tsugawa and
Muzzi.

[Finance Factors Mem. in Opp., Decl. of Counsel at ¶ 3.]

The Honorable Shackley Raffetto presided over the Second Circuit
case, Civ. No. 10-14-0409(2), and the Honorable Ronald Ibarra
presided over the Third Circuit case.

Defendant Triantos is the

court-appointed receiver in the Third Circuit foreclosure action.
Plaintiff alleges that Finance Factors, as lender,
fraudulently induced him to borrow money, grant it a security
interest in his real property, and sign a Deed of Trust.
[Motion at 3.]

Plaintiff faults Finance Factors for not lending

its own money and for selling his note and/or mortgage.
5.]

[Id. at

Plaintiff also alleges that Finance Factors’ attorneys,

Defendants Tsugawa and Muzzi, “have a history of fraud,
[c]onspiracy and racketeering, trespassing by their own
admission, and claims against them for [m]illions of [d]ollars.”
2

[Id. at 2.]

The Motion does not identify the specific properties

in question or the particular conduct that was allegedly
fraudulent.

Plaintiff appears to allege claims for fraudulent

inducement, fraudulent misrepresentation, unjust enrichment, and
that the notes and/or mortgage are unconscionable and nonbinding, but Plaintiff does not provide a coherent factual
narrative corresponding to these causes of action.

[Id. at 3-5.]

The Motion asks the Court for the following relief:
(1) issuance of a restraining order against all Defendants to
prevent the sale of Plaintiff’s property; (2) a declaration that
the Second and Third Circuit judgments are void for lack of
jurisdiction; (3) an order requiring Defendants to produce the
“Original Mortgage Note” and “the Title Page that shows whether
or not the mortgage has been satisfied”; (4) an order finding
that the note has been paid, and granting Plaintiff quiet title
to the property; (5) issuance of criminal charges against “all
third party defendants” for fraud, racketeering, and conspiracy;
(6) sanctions against Defendants Tsugawa and Muzzi, including
disbarment; and (7) issuance of arrest bonds “of all public third
party defendants in these cases.”

[Id. at 8.]

Plaintiff alleges jurisdiction pursuant to 28 U.S.C.
§ 1333(1), and states that he is “standing in my unlimited
commercial liability as a Secured Party Creditor and request that
the Third Party Defendants do the same.”

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[Id. at 1.]

Plaintiff

avers generally that he has been denied due process and that
Defendants have “conspired to defraud Plaintiff of his property a
violation of [18] U.S.C 241 and 242[.]”
II.

[Id. at 2.]

Finance Factors’ Memorandum in Opposition
The Finance Factors Defendants argue that the Court

should deny the Motion because: (1) Plaintiff is not entitled to
an injunction under admiralty law; and (2) Plaintiff has not
established that he is entitled to an injunction under the four
factors set forth in Winter v. Natural Resources Defense Council,
129 S. Ct. 365, 347 (2008).
A.

Admiralty Jurisdiction
The Finance Factors Defendants argue that Plaintiff

does not assert any facts that would subject this case to the
Court’s admiralty jurisdiction.

There are no allegations

relating to admiralty or maritime issues, including vessels on
navigable waters.

They claim that there is no admiralty basis

upon which to grant the Motion, and therefore, it must be denied.
[Mem. in Opp. at 4-5.]
B.

Requirements for Temporary Restraining Order
Next, they argue that Plaintiff fails to establish the

prerequisites for a temporary restraining order or a preliminary
injunction.

According to the Finance Factors Defendants,

Plaintiff is not likely to succeed on the merits because the
Motion does not provide specific facts supporting his conclusory
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allegations.

For example, Plaintiff does not provide any of the

contested contracts or mortgages, information regarding when the
foreclosure sales occurred or are scheduled to occur, or what
conduct forms the basis for his fraud claims.

[Id. at 6.]

The Finance Factors Defendants also argue that there is
no imminent irreparable harm, and Plaintiff fails to present any
facts or argument with respect to the balance of equities or the
public interest.

[Id. at 8.]

III. State Court Defendants’ Memorandum in Opposition
The State Defendants assert that the Court should deny
the Motion because: (1) the Court does not have subject matter
jurisdiction over this matter; (2) the claims against the judges
are barred by absolute judicial immunity; and (3) the claims
against Defendant Triantos are barred by the doctrine of quasijudicial immunity.
A.

Lack of Subject Matter Jurisdiction
The State Defendants argue that the instant action is

purely a collateral attack on the two state court proceedings,
and that this Court lacks jurisdiction to review those
proceedings under the Rooker-Feldman doctrine.

The state court

foreclosure actions could not have been brought originally in
federal court, and cannot be appealed to this Court, they argue.
[Id. at 7-9.]

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B.

Judicial Immunity
Next, the State Defendants argue the claims against

Judges Raffetto and Ibarra are barred by the doctrine of absolute
judicial immunity.

The allegations against the judges arise from

their actions taken in their official capacities as state court
judges.

The judges are absolutely immune from suit for such

actions, unless committed in the clear absence of jurisdiction.
Although Plaintiff alleges the state courts were without subject
matter jurisdiction, the State Defendants explain that lack of
subject matter jurisdiction is not the same as acting “in excess
of jurisdiction” or “in the absence of jurisdiction.”
10.]

[Id. at

In this case, the State Defendants argue that the Judges

were acting within their statutorily prescribed jurisdiction over
the foreclosure of mortgages pursuant to Haw. Rev. Stat. §§ 60321.7 and 667-1.
C.

[Id. at 10-11.]

Quasi-Judicial Immunity
Finally, the State Defendants assert that the claims

against Defendant Triantos are barred by the doctrine of quasijudicial immunity because the allegations against him, albeit
vague, relate solely to his role as the court-appointed
foreclosure commissioner authorized to sell the properties.

They

argue that court-appointed foreclosure commissioners act as an
arm of the court, pursuant to court order, and serve a function
that is essential to the judicial process.
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[Id. at 11-13.]

IV.

Plaintiff’s Reply
Plaintiff references real property on the Big Island

and Maui, which appear to be the subject properties of the state
court foreclosure actions: 75-5706 Kalawa St., Units 1-12,
Kailua-Kona, HI 96740; and 310 Ohukai Rd., Units 308 & 309,
Kihei, HI, 96753.

[Dkt. no. 14-2.]

Plaintiff purports to be the “secured party creditor
and trustee third party intervener for the legal fiction
JOHN PETER THOMA.”

[Reply at 2.]

With respect to this Court’s

jurisdiction, Plaintiff states that, “I have as trustee
petitioned this court in Admiralty as the appropriate forum to
deal with my claims in commerce.”

[Id.]

He requests that the

Court not consider the oppositions filed by Defendants because
“the captions on the motions submitted address a federal district
Court not a court in Admiralty, as Plaintiff has already
contracted in Admiralty.”

[Id. at 3.]
DISCUSSION

Plaintiff is appearing pro se; consequently, this Court
will liberally construe his pleadings.

See Eldridge v. Block,

832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has
instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454
U.S. 364, 365 (1982) (per curiam))).

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I.

Admiralty Jurisdiction
At the June 20, 2011 hearing, Plaintiff persisted in

his argument that this Court, sitting in admiralty, has
jurisdiction over this action “in rem”1 pursuant to 28 U.S.C. §
1333, which states:
The district courts shall have original
jurisdiction, exclusive of the courts of the
States, of:
(1) Any civil case of admiralty or maritime
jurisdiction, saving to suitors in all cases
all other remedies to which they are
otherwise entitled.
(2) Any prize brought into the United States
and all proceedings for the condemnation of
property taken as prize.
As the Court explained at the June 20, 2011 hearing:
Admiralty jurisdiction is historically a limited
jurisdiction. . . .
The dividing line between cases maritime and
non-maritime is not always clearly marked. It is
believed that a sure guide, in matters of
contract, is to be found in the relation which the
1

To the extent Plaintiff argues that this is a proceeding
in rem, he is mistaken. “A proceeding in rem in the admiralty is
one against the vessel as the offending thing. The vessel may be
held liable even in the absence of the liability, in personam, of
the vessel owner.” Cactus Pipe & Supply Co., Inc. v. M/V
Montmartre, 756 F.2d 1103, 1112 (5th Cir. 1985) (footnote
omitted); see also Cal. v. Deep Sea Research, Inc., 523 U.S. 491,
501 (1998) (In rem jurisdiction is based on the theory that the
“thing is itself treated as the offender and made the defendant
by name or description.”). Further, despite his contrary claims,
Plaintiff, a natural born person, is not a “vessel” for purposes
of admiralty jurisdiction. See, e.g., Stewart v. Dutra Const.
Co., 543 U.S. 481, 489 (2005) (“[t]he word ‘vessel’ includes
every description of water-craft or other artificial contrivance
used, or capable of being used, as a means of transportation on
water”) (citation omitted).
8

cause of action has to a ship, the great agent of
maritime enterprise, and to the sea as a highway
of commerce.
Hawaii Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253, 1270
(D. Hawai‘i 2005)

(alteration in Hawaii Stevedores, Inc.)

(quoting Clinton v. Int’l Org. of Masters, Mates & Pilots of
America, 254 F.2d 370, 372 (9th Cir. 1958)); see also Ventura
Packers, Inc. v. F/V JEANINE KATHLEEN, 305 F.3d 913, 917 (9th
Cir. 2002) (“Though not confined to vessels, admiralty naturally
centers around them, as the great agents of maritime affairs.”).
Although unclear, it appears Plaintiff alleges both
tort and contract claims against the various Defendants.

First,

to the extent his claims sound in tort, he has not established
that this Court has admiralty jurisdiction over those claims.
“[A] party seeking to invoke federal admiralty
jurisdiction pursuant to 28 U.S.C. § 1333(1) over
a tort claim must satisfy conditions both of
location and of connection with maritime
activity.” Grubart v. Great Lakes Dredge & Dock
Company et al., 513 U.S. 527, 534, 115 S. Ct.
1043, 1048, 130 L. Ed. 2d 1024 (1995). The test
for locality is “whether the tort occurred on
navigable water or whether injury suffered on land
was caused by a vessel on navigable water.” Id.
The test for connection with a maritime activity,
also called the “nexus test,” involves two parts.
First, a court is required to “assess the general
feature of the type of incident involved, to
determine whether the incident has a potentially
disruptive impact on maritime commerce.” Id.
(quoting Sisson v. Ruby, 497 U.S. 358, 363-64 n.2,
110 S. Ct. 2892, 2896, 111 L. Ed. 2d 292 (1990)
(internal quotations omitted)). Second, the court
must determine “whether the general character of
the activity giving rise to the incident shows a
substantial relationship to traditional maritime
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commerce.” Grubart, 513 U.S. at 539, 115 S. Ct.
at 1051 (quoting Sisson, 497 U.S. at 365, 364 n.2,
110 S. Ct. at 2897, 2896 n.2).
White v. Sabatino, 526 F. Supp. 2d 1143, 1153 (D. Hawai‘i 2007).
There is no allegation that any tort occurred on or was
caused by a vessel on navigable water, or that the conduct
alleged is in any way related to traditional maritime commerce.
Second, to the extent his claims sound in contract,
Plaintiff fails to establish that this Court has admiralty
jurisdiction over those claims.

As explained by the Ninth

Circuit:
[A] contractual claim gives rise to Section 1333
admiralty jurisdiction when the underlying
contract is “maritime in nature.” Norfolk S. Ry.
Co. v. James N. Kirby, 543 U.S. 14, 26, 125 S. Ct.
385, 160 L. Ed. 2d 283 (2004). To make this
determination, we must examine a contract to
determine “whether the principal objective of a
contract is maritime commerce.” Id. at 25, 125 S.
Ct. 385. In adopting this framework, the Supreme
Court rejected the longstanding “spatial approach”
to determining the maritime nature of contracts.
Id. at 24-25, 125 S. Ct. 385. The Court instead
held that a “conceptual approach” was needed
because modern maritime commerce “is often
inseparable from some land-based obligations.”
Id. at 25, 125 S. Ct. 385. The conceptual
approach acknowledges this modern reality by
examining whether the contract references
“maritime service or maritime transactions.” Id.
at 24, 125 S. Ct. 385 (quoting N. Pac. S.S. Co. v.
Hall Brothers Marine Ry. & Shipbuilding Co., 249
U.S. 119, 125, 39 S. Ct. 221, 63 L. Ed. 510
(1919)).
ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 967
(9th Cir. 2010).

Although the various mortgages and notes that

10

are the subject of this matter are not before the Court, there is
no allegation or evidence that the mortgages, which relate to
real property, reference maritime commerce, service, or
transactions.
The Court FINDS that Plaintiff does not provide an
independent basis for admiralty jurisdiction.
II.

Subject Matter Jurisdiction
“A party invoking the federal court’s jurisdiction has

the burden of proving the actual existence of subject matter
jurisdiction.”
Cir. 1996).

See Thompson v. McCombe, 99 F.3d 352, 353 (9th

Even when liberally construed, the pleadings do not

allege any facts giving rise to federal question or diversity
jurisdiction pursuant to 28 U.S.C. §§ 1331 or 1332.

Plaintiff’s

allegations of fraud, conspiracy, unjust enrichment, and
unconscionability do not appear to state actionable federal
claims.2

Further, at the hearing, Plaintiff insisted that this

Court had jurisdiction in admiralty, and that he did not seek

2

The Motion states that Defendants have “conspired to
defraud Plaintiff of his property a violation of [18] U.S.C 241
and 242[.]” [Motion at 2.] These statutes, however, are federal
criminal statutes and there is no private civil right of action
under either section 241 or 242. Aldabe v. Aldabe, 616 F.2d
1089, 1092 (9th Cir. 1980). As such, Plaintiff lacks standing to
initiate criminal charges against Defendants because Plaintiff is
not, for instance, a United States Attorney or federal
prosecutor. See Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973). Accordingly, Plaintiff has failed to state a claim for
which relief may be granted with respect to his claims asserted
under 18 U.S.C. §§ 241 and 242, and he has not established
federal question jurisdiction pursuant to 28 U.S.C. § 1331.
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relief on any other basis.
Although Defendants have not filed a motion to dismiss
for lack of subject matter jurisdiction, the Court has an
obligation to ensure that it has jurisdiction over the claims
raised by the parties, and may raise this issue sua sponte.
Indeed, Federal Rule of Civil Procedure 12(h)(3) provides that
“[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”
See also Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S.
567, 593 (2004) (“[I]t is the obligation of both district court
and counsel to be alert to jurisdictional requirements.”);
Williams v. United Airlines, Inc., 500 F.3d 1019, 1021 (9th Cir.
2007) (“[W]e are ‘obliged to raise questions of the district
court’s subject-matter jurisdiction sua sponte.’” (quoting Hart
v. United States, 817 F.2d 78, 80 (9th Cir. 1987))).
In a case in which a pro se plaintiff has paid the
filing fee for commencing an action, this Court would not
ordinarily dismiss a complaint without giving the plaintiff an
additional opportunity to demonstrate that federal jurisdiction
exists.

Thus, this Court, if it questioned subject matter

jurisdiction even in the absence of a defendant’s motion to
dismiss, would ordinarily issue an order to show cause, directing
the plaintiff to file papers demonstrating jurisdiction and
setting a hearing on the matter.

12

See Erum v. County of Kauai,

Civil No. 08-00113 SOM-BMK, 2008 WL 611804, at *1-2 (D. Hawai‘i
Mar. 6, 2008).

In seeking a temporary restraining order,

however, Plaintiff asks this Court to issue immediate relief.

To

avoid rendering the relief moot through judicial delay, this
Court quickly assesses its jurisdiction.

See id.

The Court

FINDS that Plaintiff has not met his burden of proving the actual
existence of subject matter jurisdiction.
The Court sua sponte DISMISSES Plaintiff’s Complaint
and Emergency Request for Restraining Order under Admiralty Law
WITHOUT PREJUDICE.

Plaintiff is GRANTED leave to file an amended

complaint properly alleging this Court’s subject matter
jurisdiction by July 12, 2011.

If Plaintiff amends his

complaint, he may file another motion for a temporary restraining
order.3

If no amended complaint is filed by July 12, 2011, this

action will be dismissed with prejudice.
Given the dismissal of the Complaint for lack of
subject matter jurisdiction, the Court does not address the
merits of the Motion.
CONCLUSION
On the basis of the foregoing, Plaintiff John Peter
Thoma’s Complaint and Emergency Request for Restraining Order
3

Pursuant to Rule LR10.2(g) of the Local Rules
of the United States District Court for the District
an “application for a temporary restraining order or
injunction shall be made in a document separate from
complaint.”
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of Practice
of Hawai‘i,
preliminary
the

under Admiralty Law, filed May 16, 2011, is HEREBY DISMISSED
WITHOUT PREJUDICE.

Plaintiff may file an amended complaint on or

before July 12, 2011.

If Plaintiff amends his complaint, he may

file another motion for a temporary restraining order.

The Court

CAUTIONS Plaintiff that, if he does not file an amended complaint
by July 12, 2011, this Court will amend this order to dismiss all
of Plaintiff’s claims with prejudice.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 28, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JOHN PETER THOMA V. FINANCE FACTORS, LTD., ET AL; CIVIL NO. 1100316 LEK-RLP; ORDER DISMISSING PLAINTIFF’S COMPLAINT AND
EMERGENCY REQUEST FOR RESTRAINING ORDER UNDER ADMIRALTY LAW

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