Shiraishi v. United States of America
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT WITH PREJUDICE AND DENYING PLAINTIFF'S COUNTER-MOTION FOR RE-SUBSTITUTION 20 , 38 - Signed by JUDGE J. MICHAEL SEABRIGHT on 9/27/11. ("The Clerk of the Court is d irected to enter judgment in favor of Defendant and close the file.") (emt, )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). Thom Shiraishi shall be served by first class mail at the address of record on September 28, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
CIVIL NO. 11-00323 JMS/BMK
DEFENDANT’S MOTION TO
DISMISS COMPLAINT WITH
PREJUDICE AND DENYING
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
COMPLAINT WITH PREJUDICE AND DENYING PLAINTIFF’S
COUNTER-MOTION FOR RE-SUBSTITUTION
On May 5, 2011, Plaintiff Thom Shiraishi (“Plaintiff”), proceeding
pro se, filed this Complaint against current United States Attorney Florence
Nakakuni (“Nakakuni”) in, as best as this court can construe, both her official
capacity as a former Assistant United States Attorney (“AUSA”) and her
individual capacity. Plaintiff’s Complaint asserts that Nakakuni’s alleged failure to
comply with the settlement agreement entered in Bank of Hawaii v. Shiraishi, Civ.
No. 85-0360 (D. Haw. 1985) (the “1985 Foreclosure Suit”), violated, among other
causes of action, 42 U.S.C. §§ 1983, 1985 and 1986 and the Tucker Act, 28 U.S.C.
§ 1491. Subsequently, the court substituted the United States as Defendant in
place of Nakakuni. Doc. No. 29, Order Adopting Findings & Rec.
Currently before the court is Defendant’s Motion to Dismiss
Complaint With Prejudice. In response, Plaintiff filed a Counter-Motion for ReSubstitution1 arguing that Nakakuni was not acting within the scope of
employment as a public official. For the following reasons, the court GRANTS
Defendant’s Motion to Dismiss and DENIES Plaintiff’s Counter-Motion for ReSubstitution.2
This is the second of five pro se Complaints that Plaintiff has filed in
Hawaii State Court since March 22, 2011 against judges and attorneys who were
involved in prior litigation against the Plaintiff.3 This suit seeks (1) $2,052,744 in
“general damages;” (2) $24,500 in compensatory damages; and (3) $3,000,000 in
punitive damages from Nakakuni for alleged actions she undertook --
The court construed Plaintiff’s “Motion for Re-Substitution” as a related/countermotion to Defendant’s Motion to Dismiss. Doc. No. 39.
Pursuant to Local Rule 7.2(d), the court finds these Motions suitable for disposition
without a hearing.
See Thom Shiraishi v. Edward H. Kubo, Jr., Harry Yee, Edric M. Ching, Civ. No. 1100225 DAE (dismissed without prejudice on September 9, 2011); Thom Shiraishi v. Richard L.
Puglisi, Elliot Enoki, Rachel S. Moriyama, Civ. No. 11-00425 REJ (dismissed on August 10,
2011); Thom Shiraishi v. Barry M. Kurren, Civ. No. 11-00490 AWT (dismissed on September
14, 2011); and Thom Shiraishi v. Robert E. Jones, Civ. No. 11-00549 LEK (removed on
September 9, 2011). Defendant asserts that these lawsuits are “frivolous, duplicitous and
abusive” and has filed an action seeking to declare Plaintiff a “vexatious litigant.” See Shiraishi
v. United States, Civ. No. 11-00471 LEK.
approximately twenty-five years ago -- as an AUSA in connection with the 1985
Foreclosure Suit. Doc. No. 1-1, Compl. ¶ 4.4 The 1985 Foreclosure Suit was
ultimately resolved through a written Mutual Release Settlement and
Indemnification Agreement (the “1986 Settlement Agreement”) that was signed by
all parties and filed on June 23, 1986. Doc. No. 20-5, Def.’s Mot. to Dismiss Ex.
B. On November 5, 1986, the court approved the 1986 Settlement Agreement and
dismissed the 1985 Foreclosure Suit with prejudice. Doc. No. 20-6, Def.’s Mot. to
Dismiss Ex. C.
On May 5, 2011, Plaintiff filed this Complaint in the Circuit Court of
the First Circuit, State of Hawaii. Doc. No. 1-1, Compl. Plaintiff alleges:
(1) Nakakuni failed to comply with the terms of the 1986 Settlement Agreement,
which resulted in “betrayal and breach of a legal and fiduciary duty, violation of a
citizens Civil Rights under Title 42 [U.S.C.] §§ 1983, 1985 and 1986 [and]
violation of contract rights under the Tucker Act;” (2) Nakakuni committed various
crimes, including dereliction of duty, conspiracy to breach a judicial order, and
embezzlement of $115,000 that was allegedly owed Plaintiff under the 1986
Settlement Agreement, in “an obvious retaliation for being embarrassed and
In the 1985 Foreclosure Suit, Bank of Hawaii named the United States as a codefendant because of money allegedly owed to the Farmers Home Administration and the
Internal Revenue Service. Doc. No. 20-4, Def.’s Mot. to Dismiss Ex. A ¶¶ 3-4.
humiliated in having to agree to solely fund a pro se’s demands and Mr. Ezra’s
demands;” (3) claims “against individual federal official[s] under the Bivens
Doctrine that can address the Defendant’s breach of contract, embezzlement, fraud
and demanding a trial by jury that cannot be addressed within the Federal Tort
Claims Act against the Government;” (4) the theft and embezzlement of Plaintiff’s
Social Security; and (5) that the United States Attorney and AUSAs lied in their
complaint in an effort to cover up Nakakuni’s embezzlement of the $115,000. Id.
¶¶ 4, 6-11, 22; see also Doc. No. 26, Pl.’s Mem. in Opp’n to Def.’s Mot. to
Dismiss at 9.5
On May 19, 2011, Nakakuni removed the action to this court pursuant
to the Federal Officer Removal Statute, 28 U.S.C. § 1442, and the Federal
Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679 (the
“Westfall Act”). Doc. No. 1, Notice of Removal ¶ 3. Under the Westfall Act, the
acting United States Attorney for the District of Hawaii certified that Nakakuni
“was acting within the course and scope of her employment as an Assistant United
States Attorney . . . at the time of the conduct alleged in the Complaint.” Doc. No.
Plaintiff further alleges that these wrongful acts resulted in (1) harm to his greenhouses;
(2) the inability to pay rent and tuition for his children’s private schooling; (3) his family having
to attend counseling to deal with their depression; and (4) his divorce from his wife to allow her
to have a life free from the “depression of living like the homeless.” Doc. No. 1-1, Compl. at 2326.
1-2, Enoki Certification ¶ 3.6
On May 25, 2011, Plaintiff filed a Motion for Remand. Doc. No. 8,
Pl.’s Mot. for Remand ¶ 3. On June 7, 2011, Defendant filed an Opposition to the
Motion for Remand, and Plaintiff filed a Reply on June 13, 2011. Doc. Nos. 10
and 12. On June 30, 2011, Defendant filed a Motion to Dismiss, asserting
Plaintiff’s Complaint should be dismissed for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim
upon which relief can be granted pursuant to Federal Rule of Civil Procedure
12(b)(6). Doc. No. 20, Def.’s Mot. to Dismiss at 1.
On July 12, 2011, United States Magistrate Judge Barry M. Kurren
issued a Findings and Recommendation (“F&R”) to deny Plaintiff’s Motion for
Remand. Doc. No. 24. Magistrate Judge Kurren also substituted the United States
as Defendant in place of Nakakuni. Id. at 7. On July 18, 2011, Plaintiff filed an
Objection to the F&R and Opposition to the Motion to Dismiss, and also appealed
the Order substituting the United States. Doc. Nos. 25 and 26. On July 25, 2011,
Under 28 C.F.R. § 15.4, “[t]he United States Attorney for the district where the civil
action or proceeding is brought . . . is authorized to make the statutory certification that the
Federal employee was acting within the scope of [her] office or employment with the Federal
Government at the time of the incident out of which the suit arose” for the purposes of removal
and defense of suits. Given that Nakakuni is currently the United States Attorney for the District
of Hawaii and is named as Defendant, Elliot Enoki is appropriately acting as the United States
Attorney for the District of Hawaii in this case under 28 U.S.C. § 515.
Defendant filed a Response to Plaintiff’s Objection. Doc. No. 27.
On July 27, 2011, this court issued an Order -- after de novo review -adopting the F&R and affirming the Order substituting the United States. Doc. No.
29. On August 1, 2011, Plaintiff filed an Objection to the Order adopting the F&R,
and on August 3, 2011, Plaintiff also again objected to the substitution of the
United States as the Defendant. Doc. Nos. 34 and 36.7 On August 15, 2011,
Plaintiff filed a “Motion for Re-Substitution.” Doc. No. 38. On August 25, 2011,
Defendant filed a Reply to the Opposition to the Motion to Dismiss and in
Opposition to Plaintiff’s Counter-Motion. Doc. No. 40. On September 6, 2011,
Plaintiff filed a Reply. Doc. No. 41.
In sum, currently before the court is Defendant’s Motion to Dismiss
Complaint with Prejudice and Plaintiff’s Counter-Motion for Re-Substitution.
III. STANDARDS OF REVIEW
Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss
claims over which it lacks proper subject matter jurisdiction. The court may
determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule
Because Plaintiff’s Objections filed on August 1, 2011 and August 3, 2011 were
virtually identical and challenge whether Nakakuni was acting within the scope of her
employment, the court construed both Objections as a Supplemental Opposition to Defendant’s
Motion to Dismiss.
12(b)(1) so long as “the jurisdictional issue is [not] inextricable from the merits of
a case.” Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195
(9th Cir. 2008).
“[U]nlike a Rule 12(b)(6) motion, in a Rule 12(b)(1) motion, the
district court is not confined to the four corners of the complaint -- it may consider
facts and need not assume the truthfulness of the complaint[,]” and the existence of
disputed material facts will not preclude the court from evaluating the existence of
subject matter jurisdiction. Americopters, LLC v. Fed. Aviation Admin., 441 F.3d
726, 732 n.4 (9th Cir. 2006); see also Ass’n of Am. Med. Colls. v. United States,
217 F.3d 770, 778 (9th Cir. 2000). The moving party “should prevail [on a motion
to dismiss] only if the material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law.” Casumpang v. Int’l
Longshoremen’s & Warehousemen’s Union, 269 F.3d 1042, 1060-61 (9th Cir.
2001) (citation and quotation signals omitted); Tosco Corp. v. Cmtys. for a Better
Env’t, 236 F.3d 495, 499 (9th Cir. 2001), overruled on other grounds by, Hertz
Corp. v. Friend, 130 S. Ct. 1181 (2010).
Motion to Dismiss Pursuant to Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
a claim for “failure to state a claim upon which relief can be granted[.]”
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans
Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must
accept as true all of the allegations contained in the complaint -- “is inapplicable to
legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 1949
(citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court
to infer “the mere possibility of misconduct” do not show that the pleader is
entitled to relief as required by Rule 8. Id.
Pro Se Status
When a plaintiff appears pro se, the court has an obligation to
construe the plaintiff’s complaint liberally. See Bernhardt v. Los Angeles Cnty.,
339 F.3d 920, 925 (9th Cir. 2003); Jackson v. Carey, 353 F.3d 750, 757 (9th Cir.
2003) (“Pro se complaints are held to less stringent standards than formal
pleadings drafted by lawyers.” (citation omitted)). A pro se litigant must be given
leave to amend his or her complaint unless it is “absolutely clear that the
deficiencies of the complaint could not be cured by amendment.” Lopez v. Smith,
203 F.3d 1122, 1126-30 (9th Cir. 2000). Pro se litigants, however, “must follow
the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d
565, 567 (9th Cir. 1987).
Motion to Dismiss
Defendant argues that the court lacks subject matter jurisdiction or the
Complaint fails to state a claim pursuant to (1) the doctrine of sovereign immunity;
(2) the doctrine of absolute immunity; and (3) the expiration of any applicable
statutes of limitations. The court agrees on all three grounds.
Official Capacity Claim -- Sovereign Immunity
Under the doctrine of sovereign immunity, claims asserted against an
individual acting in their official capacity constitute claims against the United
States. Because Plaintiff’s suit involves allegations against Nakakuni while
conducting her duties as an AUSA, Plaintiff’s Complaint can be construed as an
official capacity lawsuit. Such suits “generally represent only another way of
pleading an action against an entity of which an officer is an agent.” Kentucky v.
Graham, 473 U.S. 159, 165 (1985) (citing Monell v. New York City Dept. of Soc.
Serv., 436 U.S. 658, 690 n.55 (1978)). As long as the government entity receives
notice and an opportunity to respond, such suit “is, in all respects other than name,
to be treated as a suit against the entity.” Id. Therefore, when a plaintiff sues a
federal official acting in her official capacity, in reality, the complaint seeks to
impose liability on the United States. Balser v. Dept. of Justice, Office of the U.S.
Trustee, 327 F.3d 903, 907 (9th Cir. 2003).
Here, Plaintiff’s Complaint challenges actions Nakakuni took in her
official capacity as an AUSA in connection with the 1985 Foreclosure Suit.
Plaintiff’s Complaint states, “[i]t is without dispute that Ms. Nakakuni was solely
and totally responsible [for] her dereliction of duty and conspiracy with the FmHA
to defy the settlement terms she had agreed to and approved by the Court.” Doc.
No. 1-1, Notice of Removal Ex. A ¶ 8. Plaintiff further refers to Nakakuni in her
capacity as an “Assistant U.S. Attorney . . . [when] defying a federal judicial order
. . . and defrauding Plaintiff of his settlement rights.” Id. ¶ 31. Based on the
Complaint, this court construes Plaintiff’s suit as an action against Nakakuni in her
official capacity and therefore, against the United States. And, indeed, the court
has already substituted the United States as Defendant.
As a suit against the United States, the doctrine of sovereign immunity
bars Plaintiff’s action. The United States is a sovereign; therefore, it is immune
from suit unless it has expressly waived such immunity and consented to be sued
or a statutory waiver applies. United States v. Shaw, 309 U.S. 496, 500-01 (1940);
Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982). Such waiver
cannot be implied, but must be unequivocally expressed. Hutchinson, 677 F.2d at
1328. Where the United States has not consented to a suit, dismissal of the action
is required. Id. Further, it follows naturally that if the United States may not be
sued without its consent, the existence of such consent is a prerequisite for
jurisdiction. United States v. Mitchell, 463 U.S. 206, 212 (1983). In the present
case, the United States has not expressly consented to be sued, and no statutory
waiver applies.8 Therefore, dismissal of Plaintiff’s case on this ground is proper.
Upon certification under the Westfall Act, Plaintiff’s case falls under the FTCA. A
Individual Capacity Claim -- Absolute Immunity
Defendant also argues that if the court construes Plaintiff’s Complaint
as an action against Nakakuni in her individual capacity under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), the court should dismiss the
Complaint under the doctrine of absolute immunity. Doc. No. 20, Def.’s Mot. to
Dismiss at 11. Again, the court agrees.
When considering assertions of government immunity, “[t]he
presumption is that qualified rather than absolute immunity is sufficient to protect
government officials in the exercise of their duties.” Burns v. Reed, 500 U.S. 478,
486-87 (1991). To determine whether a government official is entitled to absolute
or qualified immunity, the court applies a functional analysis; that is, the court
looks at “the nature of the function performed, not the identity of the actor who
performed it.” Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005) (quoting
Kalina v. Fletcher, 522 U.S. 118, 127 (1997)). Absolute immunity properly
limited waiver of sovereign immunity exists under the FTCA, which states “[t]he United States
shall be liable, respecting the provisions of this title relating to tort claims, in the same manner
and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. To
the extent substitution of the United States could be construed as a waiver of sovereign immunity
under the FTCA, see Rodriguez v. Sarabyn, 129 F.3d 760, 764 (5th Cir. 1997), the claim
nevertheless fails. Defendant affirmatively raised the defense that any FTCA claim is barred by
a failure to exhaust administrative remedies, Doc. No. 20 at 14 n.10 (citing Gillespie v. Civiletti,
629 F.2d 637, 641 (9th Cir. 1980)), and Plaintiff admits he did not file an administrative claim.
See Doc. No. 1-1, Compl. ¶ 27. This failure to exhaust is an independent basis for dismissal.
See 28 U.S.C. § 2675(a).
applies to a “government attorney’s initiation and handling of civil litigation in a
state or federal court . . . [when] the government attorney is performing acts
‘intimately associated with the judicial phase’ of litigation.” See Fry v.
Melaragno, 939 F.2d 832, 837 (9th Cir. 1991) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976)).
In Fry, plaintiffs filed a seventy-four page complaint alleging that
various IRS employees, revenue agents, and attorneys had retaliated against them
for the plaintiffs’ exercise of their First Amendment rights. Id. at 834. Fry found
that the alleged wrongful acts, including misrepresentations in briefs and other
court filings, occurred during the adjudication of the tax litigation. Id. at 838. The
allegations were therefore “intimately associated with the judicial phase,” and the
court upheld the attorneys’ claim of absolute immunity. Id.
Here, it is unclear exactly how Nakakuni’s purported “embezzlement”
took place; however, it was allegedly committed in connection with the 1986
Settlement Agreement. As the ultimate resolution of the 1985 Foreclosure Suit, the
1986 Settlement Agreement was “intimately associated with the judicial phase” of
litigation. The 1986 Settlement Agreement was signed by all parties, including
Plaintiff and Nakakuni, and was filed with the court on June 23, 1986. Doc. No.
20-5, Ex. B 1-3. The 1986 Settlement Agreement reflects an understanding that all
parties have determined that the settlement of the claims in the “Shiraishi
litigation” would be beneficial. Id. at 3. Further, on November 3, 1986, the court
approved and entered the parties’ Stipulation for Dismissal With Prejudice of the
1985 Foreclosure Case, based on the 1986 Settlement Agreement. Doc. No. 20-6,
The Ninth Circuit has extended absolute immunity to government
attorneys in suits alleging wrongdoing with regard to post-litigation handling of a
case. Demery, M.D. v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984)
(concluding that no “meaningful distinction can be drawn . . . between a
prosecutor’s post-trial handling of a case and his handling of a case before or
during trial”); Cousins v. Lockyer, 568 F.3d 1063, 1069 (9th Cir. 2009). In
Demery, the plaintiff filed an action under 42 U.S.C. § 1983 against a California
Deputy Attorney General, alleging he conspired to deny plaintiff’s right to appeal
the revocation of his medical license. Id. at 1141-43. Specifically, plaintiff
asserted that defendant failed to notify him of his revocation of a waiver of a
medical course requirement. Id. Demery reasoned that absolute immunity was
necessary for all stages of litigation because prosecutors are particularly
susceptible to “harassment suits” as “the loser in one forum will frequently seek
another, charging the participants in the first with unconstitutional animus.” Id.
(citing Butz, 438 U.S. at 512). Further, “a defendant will often transform his
resentment at being prosecuted into the ascription of improper and malicious
actions to the state’s advocate.” Id. (citing Imbler, 424 U.S. at 425).
Similar to Demery, here the 1986 Settlement Agreement was part of
the “post-trial handling” of the 1985 Foreclosure Suit. 735 F.2d at 1144. This suit,
which challenges acts relating to a settlement agreement, is the type of harassment
the absolute immunity doctrine was designed to prevent.
This is not a case where Nakakuni’s actions are “wholly unrelated to
or outside of [her] official duties.” Bly-Magee v. California, 236 F.3d 1014, 1018
(9th Cir. 2001). Even when liberally construing Plaintiff’s pleadings, his
allegations of betrayal, breach of legal and fiduciary duty, conspiracy, fraud, and
“embezzlement” of $115,000 in conjunction with the 1985 Foreclosure Suit and
1986 Settlement Agreement are related to and within Nakakuni’s official duties.
Applying a functional analysis, courts have construed similarly egregious
allegations as being barred by absolute immunity. See, e.g., Imbler, 424 U.S. at
430 (holding a prosecutor enjoys absolute immunity from a suit alleging that he
maliciously initiated a prosecution, used perjured testimony at trial, and suppressed
material evidence at trial); Genzler v. Longanbach, 410 F.3d 630, 642 (9th Cir.
2005) (extending absolute immunity to supervisory defendants who allegedly knew
that district attorneys had granted a witness immunity in exchange for perjured
testimony favorable to the prosecution); Ashelman v. Pope, 793 F.2d 1072, 1078
(9th Cir. 1986) (holding that an alleged conspiracy between judge and prosecutor
to predetermine the outcome of a judicial proceeding does not pierce prosecutorial
absolute immunity). In short, Nakakuni is absolutely immune.
Statutes of Limitations
In the alternative, Defendant contends that the Complaint should be
dismissed under all potentially applicable statutes of limitations, including (1) a
Bivens claim; (2) the FTCA; and (3) the Tucker Act. Doc. No. 20 at 14.
Defendant argues that because Plaintiff’s Complaint alleges injury resulting from
Nakakuni’s representation in the mid-1980s, his Complaint is untimely. Id. at 15.
For a Bivens claim, the law of the forum state determines the statute of
limitations. See Van Strum v. Lawn, 940 F.2d 406, 408-09 (9th Cir. 1991). Under
Hawaii law, the statute of limitations for personal injury claims is two years after
the cause of action accrued. Haw. Rev. Stat. § 657-7 (2008). Under the FTCA, a
two-year statute of limitations also applies. 28 U.S.C. § 2401(d). A six-year
limitation period applies to claims brought under the Tucker Act. 28 U.S.C.
Further, the Court of Federal Claims possesses exclusive jurisdiction of claims arising
Further, the court can ordinarily dismiss on statute of limitations
grounds pursuant to Rule 12(b)(6) “only if the assertions of the complaint, read
with the required liberality, would not permit the plaintiff to prove that the statute
was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).
That is, a claim may be dismissed under Rule 12(b)(6) on the ground that it is
barred by the applicable statute of limitations only when “the running of the statute
is apparent on the face of the complaint.” Huynh v. Chase Manhattan Bank, 465
F.3d 992, 997 (9th Cir. 2006).
Plaintiff’s alleged injury occurred in conjunction with the 1985
Foreclosure Case and the 1986 Settlement Agreement. Even reading Plaintiff’s
pleadings liberally, nothing indicates any circumstances that could toll any statutes
of limitations or that would have caused Plaintiff’s action to accrue after 1986. In
fact, the Complaint indicates quite the opposite. Plaintiff refers to various
monetary disbursements and promissory notes dated “October 30, 1986,” which
were owed him in conjunction with the 1986 Settlement Agreement. See, e.g.,
Doc. 1-1, Ex. A ¶¶ 5-10. Plaintiff thus acknowledges that he knew he was owed
money in 1986 and that he did not receive it. His own allegations unequivocally
under the Tucker Act in excess of $10,000. See 28 U.S.C. § 1491(a)(1); Wilkins v. United States,
279 F.3d 782, 786 (9th Cir. 2002). Even if the Complaint could be construed as stating facts
supporting a Tucker Act Claim, this court lacks subject matter jurisdiction to hear such a claim.
demonstrate that his injuries accrued in 1986. Because Plaintiff’s Complaint was
filed in 2011 -- approximately twenty-five years after the causes of action accrued - his Complaint is plainly barred by the applicable statutes of limitations.
Counter-Motion for Re-Substitution -- Scope of Employment
Plaintiff challenges the court’s Order substituting the United States,
and seeks to re-substitute Nakakuni as Defendant. Doc. No. 38, Mot. for ReSubstitution at 6. Given the prior analysis and because substitution was proper
under the Westfall Act, this Counter-Motion necessarily fails.
When a plaintiff sues a federal employee for a wrongful or negligent
act, the Westfall Act empowers the Attorney General to certify that the defendant
employee was “acting within the scope of his office or employment at the time of
the incident out of which the claim arose[.]” Gutierrez De Martinez v. Lamagno,
515 U.S. 417, 420 (1995) (citing 28 U.S.C. § 2679(d)(1)). Upon certification, the
court removes the employee from the suit and substitutes the United States as
defendant. Id. The case then falls under the governance of the FTCA. Id.
The Attorney General’s certification is conclusive for purposes of
removal, although the certification is still subject to judicial review for purposes of
substitution. See, e.g., id. at 422 (stating that judicial review of the Attorney
General’s certification was warranted because substitution could cause action’s
demise); see also Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995) (citing
Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991)).
The Attorney General’s certification is “prima facie evidence that a federal
employee was acting in the scope of her employment at the time of the incident and
is conclusive unless challenged.” Billings, 57 F.3d at 800 (citing Green v. Hall,
8 F.3d 695, 698 (9th Cir. 1993)). “The party seeking review bears the burden of
presenting evidence and disproving the Attorney General’s certification by a
preponderance of the evidence.” Id.
Here, the acting U.S. Attorney for the District of Hawaii (on behalf of
the Attorney General) certified that Nakakuni was acting within the course of her
employment at the time of the alleged conduct. Doc. No. 1-2. After reviewing the
certification, this court confirms that Nakakuni was acting within the course and
scope of her employment as an AUSA under the Complaint’s allegations.
Plaintiff’s Complaint alleges claims against Nakakuni based only on actions she
took or failed to take in conjunction with her duties as an AUSA in the 1985
Foreclosure Case and 1986 Settlement Agreement. Doc. No. 1-1, Compl. ¶¶ 5, 79, 12. Plaintiff fails to provide any specific evidence that “disproves” the
certification. Billings, 57 F.3d at 800. Therefore, Plaintiff’s Counter-Motion for
Re-Substitution is DENIED.
Granting Plaintiff leave to amend would be futile. See Flowers v.
First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (“A district court . . . does
not abuse its discretion in denying leave to amend where amendment would be
futile.”); Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 356 (9th
Cir. 1996) (affirming the district court’s denial of leave to amend “[b]ecause the
proposed claim would be redundant and futile”). Given the court’s dismissal based
on jurisdictional and immunity grounds, and given the facts of this case, Plaintiff
plainly cannot amend his Complaint to overcome the multiple grounds on which
his suit is barred. Therefore, the Complaint is dismissed without leave to amend.
The court GRANTS Defendant’s Motion to Dismiss With Prejudice
and DENIES Plaintiff’s Counter-Motion for Re-Substitution. The Clerk of the
Court is directed to enter judgment in favor of Defendant and close the file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 27, 2011.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Shiraishi v. United States, Civ. No. 11-00323 JMS/BMK, Order Granting Defendant’s Motion to
Dismiss With Prejudice and Denying Plaintiff’s Counter Motion for Re-Substitution
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