Pang et al v. Yi

Filing 8

ORDER (1) Dismissing Plaintiffs' Complaint; And (2) Denying Plaintiffs' Motion For Temporary Restraining Order As Moot re 1 , 7 . Signed by JUDGE J. MICHAEL SEABRIGHT on 1/5/12. Plaintiffs have until 2/12/12 to file an amended complaint. (gls, )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

WELLINGTON YEE YUN PANG
AND ANDREA JANET PANG,

)
)
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Plaintiffs,
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vs.
)
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KWANG SOK YI, OWNER OF
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MAHALO REALTY INC., 725
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KAPIOLANI BLVD. #C 118
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HONOLULU, HAWAII 96813,
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Ph: [phone]
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Defendant.
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_______________________________ )

CIVIL NO. 11-00785 JMS/BMK
ORDER (1) DISMISSING
PLAINTIFFS’ COMPLAINT; AND
(2) DENYING PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER AS MOOT

ORDER (1) DISMISSING PLAINTIFFS’ COMPLAINT; AND
(2) DENYING PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER AS MOOT
I. INTRODUCTION
On December 27, 2011, Plaintiffs Wellington Yee Yun Pang and
Andrea Janet Pang (“Plaintiffs”) filed a Complaint against Defendant “Kwang Sok
Yi, Owner of Mahalo Realty Inc., 725 Kapiolani Blvd. #C 118, Honolulu, Hawaii
96813, Ph: [phone]” (“Defendant”), asserting that Defendant stole
Plaintiffs’ assets and/or identities through forgery and fraud, and attempted to kill
Plaintiffs. On January 4, 2012, Plaintiffs filed a “Motion for an [ex] Parte

Temporary Restraining Order and for Expedited Injunction Against Harassment
and Recovery Assets” (“Motion for TRO”) seeking to prevent Defendant from
contacting, threatening, or physically harming Plaintiffs.
Pursuant to Local Rule 7.2(d), the court determines these issues
without a hearing. Based on the following, the court DISMISSES the Complaint
with leave to amend, and DENIES the Motion for TRO as moot.
II. ANALYSIS
A.

The Complaint Is Dismissed with Leave to Amend
1.

Standards
Because Plaintiffs are proceeding pro se, the court liberally construes

their 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)).
The court may address a lack of subject matter jurisdiction sua sponte.
Fiedler v. Clark, 714 F.2d 77, 78 (9th Cir. 1983); Belleville Catering Co. v.
Champaign Mkt. Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003) (“[I]nquiring
whether the court has jurisdiction is a federal judge’s first duty in every case.”);
Fed. R. Civ. P. 12(h)(3). Plaintiffs bear the burden of establishing subject matter
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jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). At
the pleading stage, Plaintiffs must allege sufficient facts to show a proper basis for
the court to assert subject matter jurisdiction over the action. McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Johnson v. Columbia Props.
Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006); Fed. R. Civ. P. 8(a)(1).
Further, the court may dismiss a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6) on its own motion for failure to state a claim. See
Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court
may dismiss a claim sua sponte under [Rule] 12(b)(6). Such a dismissal may be
made without notice where the claimant cannot possibly win relief.”); Ricotta v.
California, 4 F. Supp. 2d 961, 968 n.7 (S.D. Cal. 1998) (“The Court can dismiss a
claim sua sponte for a Defendant who has not filed a motion to dismiss under Fed.
R. Civ. P. 12(b)(6).”). Additionally, a complaint that is “obviously frivolous” does
not confer federal subject matter jurisdiction and may be dismissed sua sponte.
Franklin v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984); see also Fed. R. Civ.
P. 12(h)(3); Grupo Dataflux v. Atlas Global Grp., 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.”).
“To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a
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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.” Iqbal, 129 S. Ct. at 1949.
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. at 1950.
The court may also dismiss a complaint sua sponte for failure to
comply with Federal Rule of Civil Procedure 8. Rule 8 mandates that a complaint
include a “short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that
“each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A
complaint that is so confusing that its “‘true substance, if any, is well disguised’”
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does not satisfy Rule 8. Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124,
1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431
(9th Cir. 1969)); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996)
(“Something labeled a complaint but written . . . prolix in evidentiary detail, yet
without simplicity, conciseness and clarity as to whom plaintiffs are suing for what
wrongs, fails to perform the essential functions of a complaint.”).
Put differently, a district court may dismiss a complaint for failure to
comply with Rule 8 where the complaint fails to provide defendants with fair
notice of the wrongs they have allegedly committed. See McHenry, 84 F.3d at
1178-80 (affirming dismissal of complaint where “one cannot determine from the
complaint who is being sued, for what relief, and on what theory, with enough
detail to guide discovery”); cf. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d
1097, 1105 n.4 (9th Cir. 2008) (finding dismissal under Rule 8 was in error where
“the complaint provide[d] fair notice of the wrongs allegedly committed by
defendants and [did] not qualify as overly verbose, confusing, or rambling”). Rule
8 requires more than “the-defendant-unlawfully-harmed-me accusation[s]” and “[a]
pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do.” Iqbal, 129 S. Ct. at 1949 (citations and
quotations omitted). “The propriety of dismissal for failure to comply with Rule 8
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does not depend on whether the complaint is wholly without merit.” McHenry, 84
F.3d at 1179.
2.

Application
Applying these principles, the court dismisses the Complaint for lack

of subject matter jurisdiction. In general, Plaintiff may establish the court’s subject
matter jurisdiction in one of two ways. First, Plaintiffs may assert that Defendant
violated the Constitution, a federal law, or treaty of the United States. See 28
U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”).
Alternatively, Plaintiffs may invoke the court’s “diversity jurisdiction,” which
applies “where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of different States.” 28
U.S.C. § 1332(a)(1). To premise jurisdiction on diversity, Plaintiffs must include
in the Complaint allegations regarding both the diversity of citizenship and the
proper amount in controversy. See Rilling v. Burlington N. R.R. Co., 909 F.2d 399,
400-01 (9th Cir. 1990).
Although not clear whatsoever, the Complaint appears to allege that
Defendant stole various assets from Plaintiffs and committed various misdeeds.
Yet even when liberally construed, the Complaint does not assert that Defendant
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violated the Constitution, a federal law, or treaty of the United States. Nor does the
Complaint include any allegations establishing diversity jurisdiction -- from the
face of the Complaint, it appears that Plaintiffs and Defendants are all citizens of
Hawaii. Indeed, from the court’s review, it appears that the allegations and relief
sought in the Complaint could only be provided in Hawaii state court. Thus, the
Complaint provides no basis for this court’s jurisdiction over the Complaint.
The court also dismisses the Complaint for failure to state a claim
pursuant to Rules 12(b)(6) and 8. Liberally construed, the court cannot discern the
basis of Plaintiffs’ claims against Defendant. Rather, the Complaint includes a
number of audacious conclusory statements without any factual allegations
explaining their basis. For example, the Complaint accuses Defendant of
“[s]tealing Plaintiffs Beneficiary’s names, Marriage Record, Trust Fund, Real
Properties, Stocks & Bonds;” “[giving] Bribery Money to Hawaii State Judge
Rhonda A. Nishimura” to dismiss a civil action that Plaintiffs brought; cut[ting] off
[Plaintiffs’] Public Utilities House Gas and Electricity & Public Access;” and
[trying] to Kill Beneficiary’s Family.” See Compl. 1-3. The Complaint fails to
provide any facts whatsoever explaining the basis of these conclusions and
precisely what happened between Plaintiffs and Defendant. Without any basic
factual allegations, the Complaint fails to give fair notice to Defendant of the basis
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of Plaintiffs’ claims, and fails to state a claim that is plausible on its face.1
In sum, the court DISMISSES the Complaint for lack of subject
matter jurisdiction and failure to comply with Rules 12(b)(6) and 8. Although
Plaintiffs could certainly amend the Complaint to provide more details regarding
the basis of their claims, at this time the court does not see a way that Plaintiffs
could amend the allegations in such a way that would provide the court jurisdiction
over this action. Rather, Plaintiffs appear to assert state law claims against a fellow
Hawaii citizen and such claims must be raised in Hawaii state court.
In the event that the court misunderstands the basis of Plaintiffs’
claims, however, the court grants Plaintiffs leave to file an amended complaint
should they believe that they can assert a basis for this court’s jurisdiction and can
also correct all the deficiencies outlined above. In particular, Plaintiffs should
consider whether they can state a basis for this court’s jurisdiction or whether this
action should instead be filed in Hawaii state court. If Plaintiffs choose to file an
amended complaint with this court, it:

1

The Complaint also includes a number of allegations that do not appear tied in any way
to Plaintiffs. See Compl. at 2 ¶¶ 7-8 (asserting that Defendant “Control[s] and Conspire[s] with
LAURA MURPHY President of (ACLU) American Civil Labors Union to Collect Money from
the People to go against the U.S. Gov’t. Control like Dictator,” and that Defendant “IS A
DANGEROUS PERSON [and] should not be free in this World.”). For purposes of determining
Plaintiffs’ claims, the court focuses on those allegations that are directed to harms allegedly
caused to Plaintiffs.
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(1)

must clearly state the relief sought and how there is basis for a
claim in federal court. In other words, Plaintiffs must explain
the basis of this court’s jurisdiction;

(2)

must clearly state how Defendant has injured Plaintiffs, or how
the court can provide relief against Defendant. In other words,
Plaintiffs should explain, in clear and concise allegations, what
Defendant did (or failed to do) and how those specific facts
create a plausible claim for relief in reference to a specific
statute or common-law cause of action; and

(3)

must (if a claim alleges fraud) state with “particularity the
circumstances constituting fraud” as required by Federal Rule
of Civil Procedure 9(b) (e.g., what was fraudulent, when it
occurred, and how it was fraudulent).

Plaintiffs are also notified that any amended complaint supercedes the
prior complaint and must be complete in itself without reference to prior or
superceded pleadings. E.g., King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)
(citation omitted). That is, an amended complaint, if any, must stand alone,
without reference to prior pleadings or documents in the record. Plaintiffs need
not, however, pay any additional filing fee if they file an amended complaint.
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B.

Motion for TRO
Because the court dismisses the Complaint with leave to amend, the

court DISMISSES the Motion for TRO as moot. But even if the Motion for TRO
was not mooted by the dismissal of the Complaint, the Motion for TRO is deficient
for several reasons. The court takes this opportunity to explain these deficiencies
should Plaintiffs file an Amended Complaint and seek another Motion for TRO.
First, a court may issue a TRO without written or oral notice to the
adverse party only if the party requesting the relief provides an affidavit or verified
complaint providing specific facts that “clearly show that immediate and
irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). In addition, the
movant or his attorney must certify in writing “any efforts made to give notice and
the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1)(B). Plaintiffs
have not complied with either of these requirements. As to the first requirement,
although Plaintiffs signed their Motion for TRO under penalty of perjury, the
Motion for TRO does not contain specific facts that clearly show that immediate
and irreparable injury, loss, or damage will result to Plaintiffs before Defendant
can be heard in opposition. Instead, the Motion for TRO, like the Complaint,
includes only conclusory statements that Defendant has threatened and defrauded
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Plaintiffs. As to the second requirement, Plaintiffs have not certified in writing any
efforts made to put Defendant on notice of the Motion, nor have they offered any
reason as to why notice should not be required.
Second, the Motion for TRO fails to establish why Plaintiffs are
entitled to relief. “The standard for issuing a temporary restraining order is
identical to the standard for issuing a preliminary injunction.” Brown Jordan Int’l,
Inc. v. Mind’s Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002); see
also Burgess v. Forbes, 2009 WL 416843, at *2 (N.D. Cal. Feb. 19, 2009);
Magnuson v. Akhter, 2009 WL 185577, at *1 (D. Ariz. Jan. 27, 2009). In Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), the Supreme
Court explained that “[a] plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” So long as all four parts of the
Winter test are applied, “a preliminary injunction [may] issue where the likelihood
of success is such that ‘serious questions going to the merits were raised and the
balance of hardships tips sharply in [plaintiff’s] favor.’” Alliance for Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Clear Channel Outdoor,
Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003)).
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The Motion for TRO does not explain why Plaintiffs are likely to
succeed on the merits, why they will likely suffer irreparable harm in the absence
of preliminary relief, why the balance of equities tips in their favor, and why an
injunction is in the public interest. Instead, the Motion for TRO invokes Hawaii
Revised Statutes § 604-10.5 granting Hawaii state district courts the power to
enjoin and temporarily restrain harassment, and seeks a ninety-day TRO enjoining
Defendant from “contacting, threatening or physically harming Plaintiff(s) [or]
entering or visiting the Plaintiff(s) residence including yard, garage and place of
employment.” But § 604-10.5 has no application in federal court -- the court may
only grant injunctive relief pursuant to Federal Rule of Civil Procedure 65, and a
TRO may not last more than fourteen days. See Fed. R. Civ. P. 65(b)(2). If
Plaintiffs desire the relief they seek in their Motion for TRO, then they should
consider whether this action should be more appropriately brought in Hawaii state
court.
The dismissal of Plaintiffs’ Motion for TRO is nonetheless without
prejudice -- should Plaintiffs choose to continue this action in this court, Plaintiffs
may attempt to remedy the deficiencies outlined above and file a new motion for
temporary restraining order and/or preliminary injunction.

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III. CONCLUSION
Based on the above, the court DISMISSES the Complaint and
DENIES the Motion for TRO. By February 12, 2012, Plaintiffs may file an
amended complaint. Failure to file an amended complaint by February 12, 2012
will result in dismissal of this action. If they so choose, Plaintiffs may also file a
renewed Motion for Temporary Restraining Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 5, 2012.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Pang et al. v. Kwang Sok Yi, Civ. No. 11-00785 JMS/BMK; Order (1) Dismissing Plaintiffs’
Complaint; and (2) Denying Plaintiffs’ Motion for Temporary Restraining Order as Moot

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