Minichino v. Sutidze et al
ORDER DISMISSING SECOND AMENDED COMPLAINT 64 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/3/12. --The court grants the motion to dismiss without a hearing pursuant to Local Rule 7.2(d). Minichino is given leave to file a motion see king permission to file a Third Amended Complaint by August 24, 2012, as set forth above." (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). Marie Minichino shall be served by First Class Mail at the address of record on August 6, 2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARIE MINICHINO, and as
Trustee of Gaetano Trust,
WELLS FARGO BANK, N.A., ALL
AGENTS & OFFICERS, Public and
Private Capacities; MANANA
and DAVID SUTIDZE; WILLIAM
and JOANN CATERINA; SHAKA
PIZZA; COLDWELL BANKER,
PREVIEWS INT.; SHORE TO SHORE
REALTY, AND INC.; AKA TAGORA,
AKA MARTINEZ; AL IMAMURA,
President and Principal
Broker, Shore to Shore
Realty; ROBERT CELLA, Broker;
FIRST AMERICAN TITLE, ISLAND;
YVIENNE PETTERSON; WINDEMERE
REAL ESTATE CO.; FIRST
AMERICAN TITLE; YURIKO
SUGAMURA; BENDET, FIDELL,
SAKAI, LEE Law Corporation;
DOES 1-50, in Their Official
Capacities and Private
Capacities; and Any and All
Unknown Entities, all Jointly
CIVIL NO. 11-00370 SOM/RLP
ORDER DISMISSING SECOND
ORDER DISMISSING SECOND AMENDED COMPLAINT
On June 10, 2011, Plaintiff Marie Minichino, proceeding
pro se, filed what she called a “Verified Criminal Complaint.”
See ECF No. 1.
On June 15, 2011, Minichino filed an Application
to Proceed Without Prepayment of Fees.
See ECF No. 5.
On June 20, 2011, the court issued an “Order Dismissing
Case; Order Denying as Moot Application to Proceed In Forma
See ECF No. 6.
The court dismissed the “Verified
Criminal Complaint” because Minichino had no private right to
proceed with what were criminal claims of mail and wire fraud.
The other causes of action asserted in the “Verified
Criminal Complaint” appeared to arise under state law, and the
court declined to exercise supplemental jurisdiction over those
Minichino was given leave to file an Amended Complaint
no later than July 20, 2011.
On July 20, 2011, Minchino filed an “Amended & Verified
Complaint for Damage.”
See ECF No. 7.
On July 21, 2011,
Minichino filed another “Amended & Verified Complaint for
See ECF No. 8.
On August 3, 2011, Minichino filed
another Application to Proceed Without Prepayment of Fees.
ECF No. 10.
On August 5, 2011, the Court ordered Minichino to
inform the court which document was to serve as her Amended
See ECF No. 13.
On August 15, 2011, Minichino filed another document
titled “Amended Verified Criminal Complaint.”
See ECF No. 15.
On August 18, 2011, the court deemed the filing of
August 15, 2012, to be Minichino’s Amended Complaint.
The court then dismissed the Amended Complaint, again
ruling that Minichino had no private right to bring criminal
claims of wire and bank fraud.
The court declined to
exercise supplemental jurisdiction over the state law claims
asserted in the Amended Complaint.
The court gave Minichino
leave to file a Second Amended Complaint no later than September
The court warned Minichino that, “if she files a
Second Amended Complaint that similarly fails to allege an
adequate basis for this court’s jurisdiction, this action may be
subject to dismissal with prejudice.”
Id. at 2.
On September 15, 2011, Minichino filed a “Second
Amended & Verified Complaint for Damage.”
See ECF No. 20.
document is almost identical to the complaints Minichino filed in
That same day, Minichino filed another Application to
Proceed Without Prepayment of Fees.
See ECF No. 19.
Application was denied because Minichino had an annual income of
See ECF No. 22.
On October 3, 2011, Minichino paid the applicable
See ECF No. 28.
On June 8, 2012, Defendant Manana Sutidze filed a
motion to dismiss the “Second Amended & Verified Complaint for
See ECF No. 64.
filing on July 19, 2012.
filed on July 23, 2012.
Minichino opposed this motion in a
See ECF No. 66.
See ECF No. 68.
A Reply memorandum was
Minichino’s “Second Amended & Verified Complaint”
asserts federal question jurisdiction.
alleges no facts supporting a federal claim.
court dismisses the federal claims and declines to exercise
supplemental jurisdiction over any state law claims.
The court denies without prejudice Sutidze’s request
for attorney’s fees and costs on the present record.
Minichino’s “Second Amended & Verified Complaint” is
The court gleans the following from
Minichino alleges that she used to live at a Luakaha
Circle address and then at a Lanihou Place address.
Amended & Verified Complaint” ¶ 8.
Minichino alleges that, in
March 2009, Manana and David Sutidze fraudulently transferred
these properties from the “Gaetano Trust” to Manana Sutidze.
It appears that Minichino is claiming to have been a
trustee of the “Gaetano Trust.”
See id. ¶ 26.
as Defendants Yvienne Petterson and Coldwell Banker Realty; they
apparently listed the property for sale.
sues First American Title, an escrow company.
See id. ¶ 27.
Minichino then alleges that Wells Fargo Bank filed an
improper foreclosure action.
See id. ¶ 28.
It appears that
Minichino may have received a $677,000 loan from Wells Fargo.
See id. ¶ 36.
Minichino alleges that an attorney, Yuriko
Sugimura, committed fraud on the state court when she sought to
evict Minichino on behalf of her client, an unknown Defendant.
See id. ¶ 31.
Minichino says that the fraudulent court documents
caused her to lose her property “under a color of law.”
In other words, for purposes of 42 U.S.C. §§ 1983 and
1986, Minichino is saying that Defendants acted “under color of
law” because they used state and federal laws in a court action.
See id. ¶¶ 72-73, 92.
Minichino alleges that Wells Fargo did not properly
disclose the loan costs, but does not allege facts supporting her
allegation that the disclosure she received “was a blatant
misrepresentation, and intentional lie, and a violation of the
Federal Truth in Lending Act.”
Id. ¶ 46(d).
Minichino alleges that an unidentified “debt collector”
violated the Fair Debt Collection Practices Act by failing to
validate a debt.
Id. ¶ 114.
Minichino alleges that “many more crimes have been
committed including numerous RICO predicate acts which Plaintiff
at this time has not enough resources to battle and leaves these
unlawful actions and the other unlawful actions to the
Id. ¶ 120.
It is unclear why other Defendants have been named, as
no factual allegations pertain to them.
The court takes judicial notice of state court
litigation between Minichino and Sutidze that has resulted in a
settlement agreement that was recently enforced against
See ECF No. 69-1 (copy of July 31, 2012, state-court
Order Granting Plaintiff’s Motion to Confirm and Enforce
In relevant part, Sutidze seeks dismissal of the
“Second Amended & Verified Complaint” pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, which states: “Every
defense to a claim for relief in any pleading must be asserted in
the responsive pleading if one is required.
But a party may
assert the following defenses by motion: . . . (6) failure to
state a claim upon which relief can be granted.”
Under Rule 12(b)(6), review is generally limited to the
contents of the complaint.
Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).
If matters outside the
pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.
See Keams v. Tempe Tech. Inst., Inc.,
110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).
However, courts may “consider certain
materials--documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice--without converting the motion to dismiss into a
motion for summary judgment.”
903, 908 (9th Cir. 2003).
United States v. Ritchie, 342 F.3d
Documents whose contents are alleged
in a complaint and whose authenticity are not questioned by any
party may also be considered in ruling on a Rule 12(b)(6) motion
See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.
1994), overruled on other grounds by Galbraith v. Cnty. of Santa
Clara, 307 F.3d 1119, 1125 (9th Cir. 2002).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.
Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.
Sprewell, 266 F.3d at 988; Syntex
Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Additionally, the court need not accept as true allegations that
contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell, 266 F.3d at 988.
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.
Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
A motion to dismiss may also be granted if an
affirmative defense or other bar to relief is apparent from the
face of the complaint, such as a statute of limitations.
v. Pachtman, 424 U.S. 409 (1976).
MINICHINO ALLEGES NO CLAIM OVER WHICH THIS COURT HAS
Minichino alleges only federal question jurisdiction.
See “Second Amended & Verified Complaint” ¶ 1 (“Jurisdiction is
founded upon the existence of a Federal Question.”).
Minichino does not allege facts supporting any federal claim.
No Viable Claim is Alleged Under 42 U.S.C.
Minichino’s “Second Amended & Verified Complaint”
mentions violations of 42 U.S.C. §§ 1983, which provides in
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity . . . .
“Section 1983 imposes two essential proof requirements upon a
claimant: 1) that a person acting under color of state law
committed the conduct at issue, and 2) that the conduct deprived
the claimant of some right, privilege or immunity protected by
the Constitution or laws of the United States.”
Leer v. Murphy,
844 F.2d 628, 632-33 (9th Cir. 1988).
Minichino alleges that Defendants filed court documents
that caused her to lose her property “under a color of law.”
In other words, Minichino alleges that Defendants acted
“under color of law” because they used state and federal laws in
a court action.
See id. ¶¶ 72-73, 92.
allegations are insufficient, as “private parties are not
generally acting under color of state law, and . . .
‘[c]onclusionary allegations, unsupported by facts, [will be]
rejected as insufficient to state a claim under the Civil Rights
Price v. Hawaii, 939 F.2d 702, 708 (9th Cir. 1991)
(quoting Jones v. Comm. Redevelopment Agency, 733 F.2d 646, 649
(9th Cir. 1984)).
A person acts under color of law for § 1983 purposes
when he or she exercises power “‘possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the
authority of state law.’”
West v. Atkins, 487 U.S. 42, 49 (1988)
(quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
Although § 1983 generally applies to government officials and
employees, a private actor may act under “color of law” in
For example, a private individual may
become a state actor for purposes of § 1983 by conspiring with
state officials, by engaging in joint activity with state
officials, and/or by becoming so closely related to the state
that the person’s actions can be said to be those of the state
Price, 939 F.3d at 708.
Minicino’s conclusory allegations do not show such
At most, Minichino alleges that Yuriko
Sugimura, an attorney in private practice, acted under color of
law by filing court documents and allegedly lying on multiple
See “Second Amended & Verified Complaint” ¶¶ 31-32.
Those assertions are insufficient assertions of action under
color of state law.
See Simmons v. Sacramento County Sup. Court,
318 F.3d 1156, 1161 (9th Cir. 2003) (“Plaintiff cannot sue
Mirante’s counsel under § 1983, because he is a lawyer in private
practice who was not acting under color of state law.
Plaintiff’s conclusory allegations that the lawyer was conspiring
with state officers to deprive him of due process are
Accordingly, the § 1983 claim is dismissed.
No Viable Claim is Alleged Under 42 U.S.C.
Minichino also alleges a violation of 42 U.S.C. § 1986,
which “imposes liability on every person who knows of an
impending violation of section 1985 but neglects or refuses to
prevent the violation.”
Karim-Panahi v. Los Angeles Police
Dept., 839 F.2d 621, 626 (9th Cir. 1988).
Thus, a violation of
§ 1986 depends upon the existence of a valid § 1985 claim.
Sanchez v. City of Santa Ana, 936 F.2d 1027, 1040 (9th Cir.
Minichino does not allege how § 1985 was violated.
“Second Amended & Verified Complaint” contains legal conclusions
as to her claim of conspiracy, but no factual specificity
supporting those conclusions.
The “Second Amended & Verified
Complaint” insufficiently alleges a § 1986 claim, see KarimPanahi, 839 F.2d at 626, and the § 1986 claim is dismissed.
No Viable Truth in Lending Act Claim is Alleged.
Paragraph 46(d) of the “Second Amended & Verified
Complaint” alleges that Wells Fargo failed to properly disclose
the costs of the loan to Minichino.
This claim is insufficient
because it fails to put Wells Fargo on notice of what it may have
done that violates the Truth in Lending Act (“TILA”).
words, the “Second Amended & Verified Complaint” alleges no facts
demonstrating that Wells Fargo made an improper disclosure.
Instead, it merely states in conclusory fashion that TILA was
violated by an insufficient disclosure without any description of
which disclosure was deficient, or of what TILA provision was
Accordingly, the TILA claim is dismissed.
No Viable RICO Claim is Alleged.
The “Second Amended & Verified Complaint” claims that
Defendants violated the Racketeer Influenced and Corrupt
Organizations Act (“RICO”).
See, e.g., ¶ 72.
however, alleges no facts supporting such a claim.
appears to suggest that unnamed government entities should
enforce her rights.
See ¶ 120.
The mere mention of RICO does
not suffice to state a viable RICO claim.
Accordingly, the RICO
claim is dismissed.
No Viable FDCPA Claim is Alleged.
The “Second Amended & Verified Complaint” asserts that
an unnamed Defendant violated the Fair Debt Collection Practices
Act by failing to validate a debt.
See ¶¶ 113-14.
conclusory allegation, without more, is insufficient to state a
Accordingly, the FDCPA claim is dismissed.
The Court Declines to Exercise Supplemental
Jurisdiction Over Minichino’s State-Law Claims.
Having dismissed the claims conferring federal question
jurisdiction--the only basis of federal jurisdiction asserted by
Minichino, this court now considers whether it should exercise
supplemental jurisdiction over her remaining state law claims.
Supplemental jurisdiction, unlike federal question or diversity
jurisdiction, is not mandatory.
A court may decline to exercise
supplemental jurisdiction over a state law claim if:
claim raises a novel or complex issue of state law; (2) the state
law claim substantially predominates over the claim or claims
over which the district court has original jurisdiction; (3) the
district court has dismissed all claims over which it has
original jurisdiction; or (4) in exceptional circumstances, there
are other compelling reasons for declining jurisdiction.
U.S.C. § 1367.
Supplemental jurisdiction is a doctrine of discretion,
not of a plaintiff’s right.
City of Chicago v. Int’l College of
Surgeons, 522 U.S. 156, 172 (1997); United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966).
When, as here, “the federal
claims are dismissed before trial, even though not insubstantial
in a jurisdictional sense, the state claims should be dismissed
Gibbs, 383 U.S. at 726.
Although the Supreme Court
has stated that such a dismissal is not “a mandatory rule to be
applied inflexibly in all cases,” it has also recognized that,
“in the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine--judicial economy, convenience,
fairness, and comity--will point toward declining to exercise
jurisdiction over the remaining state-law claims.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
Having dismissed the federal claims, the court declines
to exercise supplemental jurisdiction over the remaining statelaw claims.
Minichino is Granted Leave to File a Motion
Seeking Leave to File a “Third Amended Complaint.”
Because Minichino has been granted leave to file
multiple amended complaints, Minichino is not here granted leave
to file another amended complaint.
Instead, Minichino may file a
motion seeking leave to file a Third Amended Complaint.
attach to any such motion a copy of her proposed Third Amended
The motion must be filed no later than August 24,
The court is therefore extending the Rule 16 Scheduling
Order deadline for such motions, which currently states that all
motions to amend pleadings shall be filed by July 27, 2012.
ECF No. 57.
Any motion seeking leave to file a Third Amended
Complaint may be decided on a nonhearing basis and the court,
upon examination of any proposed Third Amended Complaint, might
deny the motion without waiting for any opposition to be filed.
That is, if it is clear that any proposed Third Amended Complaint
would be subject to dismissal, the court might deny any motion
seeking leave to file a Third Amended Complaint without imposing
on Defendants the burden and expense of having to oppose the
The court stresses that a motion, not a Third Amended
Complaint, is being allowed.
Minichino shall not file an actual
Third Amended Complaint except as an attachment to a motion,
unless she obtains a court order giving her leave to file a Third
If Minichino files a Third Amended Complaint
without leave to do so, it will automatically be stricken.
In any proposed Third Amended Complaint, Minichino
should state in simple language what each particular Defendant
allegedly did and what statute, law, or duty was supposedly
That is, Minichino should refrain from stating legal
conclusions and should instead explain what each Defendant did
and why each Defendant is liable for specific actions.
the “Second Amended & Verified Complaint” is nearly
incomprehensible, the court suggests that Minichino refrain from
“cutting and pasting” from it.
If a claim was dismissed in this order, Minichino
should consider whether it would be appropriate to reassert the
identical claim and should consider whether any claim may be
barred by an applicable statute of limitation.
reminded that, by presenting a proposed Third Amended Complaint
to the court, she is certifying under Rule 11(b) of the Federal
Rules of Civil Procedure that it is not being presented for an
improper purpose and that the claims therein are not frivolous
and will be supported by facts.
If Minichino violates Rule 11 or
otherwise proceeds in bad faith, she may be subject to sanctions.
Minichino should also refrain from attempting to appeal
to this court or relitigate the state-court order enforcing the
The Court Denies Sutidze’s Request for Sanctions.
Sutidze requests attorney’s fees and costs pursuant to
Rule 11(c)(3) and the court’s inherent powers.
The court denies
that request on the present record without prejudice.
Under Rule 11(b)(1), an attorney or unrepresented party
certifies that its motion or any other paper is not “presented
for any improper purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation.”
Civ. P. (11)(b)(1).
The court may impose sanctions on its own
initiative after first ordering an attorney or the party to “show
cause why conduct specifically described in the order has not
violated Rule 11(b).”
Fed. R. Civ. P. 11(c)(3).
party must move for sanctions and adhere to the safe harbor
provision (allowing the other party to withdraw or correct the
Fed. R. Civ. P. 11(c)(1).
When the court
acts on its own initiative, monetary sanctions are limited to a
penalty payable to the court.
See 1993 Advisory Comm. Notes to
Fed. R. Civ. P. 11 (“The revision provides that a monetary
sanction imposed after a court-initiated show cause order be
limited to a penalty payable to the court”).
All Rule 11
sanctions “must be limited to what suffices to deter repetition
of the conduct or comparable conduct by others similarly
Fed. R. Civ. P. 11(c)(4).
The court may also impose sanctions, including
attorney’s fees, under its inherent power.
NASCO, Inc., 501 U.S. 32, 45 (1991).
See Chambers v.
Under the court’s inherent
power, the court may assess attorney’s fees when “the losing
party has acted in bad faith, vexatiously, wantonly, or for
Alyeska Pipeline Serv. Co. v. Wilderness
Society, 421 U.S. 240, 258-59 (1975) (citation and quotation
While the court’s inherent power is broad in that it
applies to “a whole range of litigation abuses,” the court is
required to find bad faith or “conduct tantamount to bad faith.”
Fink v. Gomez, 239 F.3d 989, 991, 994 (2001).
Sutidze’s request for attorney’s fees and costs is
denied on the present record.
This court has not issued an order
to show cause such that Rule 11 sanctions are warranted.
the court convinced on the present record that Minichino is
proceeding in bad faith.
The court is not here ruling that
Minichino is proceeding in good faith, only that it is not clear
from the current record and based on the current briefing that
she is proceeding in bad faith.
Sutidze may, of course, bring
another motion for sanctions if it is warranted.
The court grants the motion to dismiss without a
hearing pursuant to Local Rule 7.2(d).
Minichino is given leave
to file a motion seeking permission to file a Third Amended
Complaint by August 24, 2012, as set forth above.
The court denies without prejudice Sutidze’s request
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 3, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Minichino v Wells Fargo Bank, N.A., et al., Civil No. 11-00370 SOM/RLP; ORDER
DISMISSING SECOND AMENDED COMPLAINT
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