Paet v. Fernandez

Filing 12

ORDER: (1) Dismissing Plaintiff's Complaint With Leave To Amend; And (2) Dismissing As Moot; (a) "Motion For Perpetual Mandatory Injunction re: Ejectment for Squatting, Trespassing, And Destruction of Property. Motion To Show Cause Re: Resp ondents To Show Cause Why They Should Not Be Indicted," Doc. No. 2; (b) "Motion For Preventive, Prohibitory, Quia Timet And Perpetual Injunction," Doc. No. 3; (c) "Motion For Writ of Recaption," Doc. No. 9; And (d) "Amen ded Motion For Perpetual Mandatory Injunction Re: Ejectment, And Amended Motion To Show Cause Re: Respondents To Show Cause Why They Should Not Be Indicted For Multiple Crimes Committed," Doc. No. 10 re 3 , 9 , 10 , 2 . Signed by JUDGE J. MICH AEL SEABRIGHT on 3/5/13. (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

GLORIA J. PAET,

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Plaintiff,
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vs.
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MONICA FERNANDEZ, et al.,
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Defendants.
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_______________________________ )

CIVIL NO. 13-00079 JMS-KSC
ORDER: (1) DISMISSING
PLAINTIFF’S COMPLAINT
WITH LEAVE TO AMEND; AND
(2) DISMISSING AS MOOT:
(a) “MOTION FOR PERPETUAL
MANDATORY INJUNCTION RE:
EJECTMENT FOR SQUATTING,
TRESPASSING, AND
DESTRUCTION OF PROPERTY.
MOTION TO SHOW CAUSE RE:
RESPONDENTS TO SHOW
CAUSE WHY THEY SHOULD
NOT BE INDICTED,” DOC. NO. 2;
(b) “MOTION FOR PREVENTIVE,
PROHIBITORY, QUIA TIMET
AND PERPETUAL INJUNCTION,”
DOC. NO. 3;
(c) “MOTION FOR WRIT OF
RECAPTION,” DOC. NO. 9; AND
(d) “AMENDED MOTION FOR
PERPETUAL MANDATORY
INJUNCTION RE: EJECTMENT,
AND AMENDED MOTION TO
SHOW CAUSE RE:
RESPONDENTS TO SHOW
CAUSE WHY THEY SHOULD
NOT BE INDICTED FOR
MULTIPLE CRIMES
COMMITTED,” DOC. NO. 10

ORDER: (1) DISMISSING PLAINTIFF’S COMPLAINT WITH
LEAVE TO AMEND; AND (2) DISMISSING AS MOOT: (a) “MOTION
FOR PERPETUAL MANDATORY INJUNCTION RE: EJECTMENT FOR
SQUATTING, TRESPASSING, AND DESTRUCTION OF PROPERTY.
MOTION TO SHOW CAUSE RE: RESPONDENTS TO SHOW CAUSE
WHY THEY SHOULD NOT BE INDICTED,” DOC. NO. 2; (b) “MOTION
FOR PREVENTIVE, PROHIBITORY, QUIA TIMET AND PERPETUAL
INJUNCTION,” DOC. NO. 3; (c) “MOTION FOR WRIT OF RECAPTION,”
DOC. NO. 9; AND (d) “AMENDED MOTION FOR PERPETUAL
MANDATORY INJUNCTION RE: EJECTMENT, AND AMENDED
MOTION TO SHOW CAUSE RE: RESPONDENTS TO SHOW CAUSE
WHY THEY SHOULD NOT BE INDICTED FOR MULTIPLE CRIMES
COMMITTED,” DOC. NO. 10
I. INTRODUCTION
On February 19, 2013, pro se Plaintiff “Gloria (J.) of the House of
Paet” (“Plaintiff”) filed an “Admissions Statement,” Doc. No. 1, in which she
alleges that tenants Monica Fernandez, Jay Komoda and Antonio (collectively,
“Defendants”)1 as well as unnamed others, generally engaged in offensive and
destructive behavior toward Plaintiff and her residential property on Maui. The
court, construing the Admissions Statement as a Complaint, DISMISSES
Plaintiff’s Complaint and GRANTS Plaintiff leave to file an amended complaint
by April 5, 2013.2

1

The caption of the Admissions Statement names as Defendants “Monica Fernandez, et
al.,” but refers to Jay Komoda and Antonio in the body of the Admissions Statement.
2

Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition
without a hearing.
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II. BACKGROUND
Plaintiff sets forth numerous allegations of offensive behavior by
Defendants and other unnamed individuals including leaving trash and food in the
yard, denying Plaintiff and a plumber access to portions of the property, making
derogatory statements to Plaintiff, damaging the residence, collecting money from
others in exchange for use of bathroom facilities without authorization, acting in
concert to withhold rent, and gathering information on Plaintiff. Doc. No. 1,
Compl. ¶¶ 1-21.
While not entirely clear, Plaintiff appears to contend that Defendants’
conduct is criminal and the Complaint outlines incidents to be used as evidence in
a criminal proceeding.3 Plaintiff identifies the following alleged crimes:
destruction of property; causing disturbances; endangering the lives and health of
other tenants and their pets; cruelty to animals; violations of the Racketeer
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Along with the Complaint, on February 19, 2013, Plaintiff filed the following
documents: (1) “Motion for Perpetual Mandatory Injunction re: Ejectment for Squatting,
Trespassing, and Destruction of Property. Motion to Show Cause re: Respondents to show cause
why they should not be Indicted,” Doc. No. 2; (2) “Motion for Preventive, Prohibitory, Quia
Timet and Perpetual Injunction,” Doc. No. 3; and (3) Admissions Statement Re: Notice of Intent:
Invoice and Fee-Schedule,” Doc. No. 4. On March 1, 2013, Plaintiff filed: (1) “Admissions
Statement re: Code of Conduct for Judicial Employees as per United States Courts,” Doc. No. 7;
(2) Admissions Statement,” Doc. No. 8; (3) “Motion for Writ of Recaption,” Doc. No. 9;
(4) “Amended Motion for Perpetual Mandatory Injunction re: Ejectment, and Amended Motion
to Show Cause re: Respondents to Show Cause why they should not be Indicted for multiple
crimes committed,” Doc. No. 10; and (5) Admissions Statement, Doc. No. 11. While not part of
the Complaint or relevant to this court’s ruling on the viability of Plaintiff’s claims, these
documents do provide some guidance for the court’s interpretation of the Complaint.
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Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.; and
treason. Id. In addition, Plaintiff asserts that Defendants committed gross
negligence by throwing beer bottles from the second floor balcony, id. ¶ 7, and
putting electronic materials in a trash bin rather than disposing of them at the
dump. Id. ¶ 9. Plaintiff does not demand any specific relief.
III. STANDARD OF REVIEW
Plaintiff is appearing pro se; consequently, the court liberally
construes her pleadings. 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 also recognizes that “[u]nless it is absolutely
clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice
of the complaint’s deficiencies and an opportunity to amend prior to dismissal of
the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also
Lopez v. Smith, 203 F.3d 1122, 1126 (9th. Cir. 2000).
Despite the liberal pro se pleading standard, the court may dismiss a
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on its own motion.
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
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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).”); see also Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725,
727 (D.C. Cir. 1990) (holding that district court may dismiss cases sua sponte
pursuant to Rule 12(b)(6) without notice where plaintiff could not prevail on
complaint as alleged). Additionally, a paid complaint that is “obviously frivolous”
does not confer federal subject matter jurisdiction and may be dismissed sua sponte
before service of process. 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 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.”). “Federal courts are courts of
limited jurisdiction,” possessing “only that power authorized by Constitution and
statute.” United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) (quoting
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). The assumption is
that the district court lacks jurisdiction. See Kokkonen, 511 U.S. at 377.
Accordingly, a “party invoking the federal court’s jurisdiction has the burden of
proving the actual existence of subject matter jurisdiction.” Thompson v.
McCombe, 99 F.3d 352, 353 (9th Cir. 1996).
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“To survive a motion to dismiss [pursuant to Rule 12(b)(6)], 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.” 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 “begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth.” Id. Legal
conclusions must be supported by factual allegations. Id. “When there are
well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.
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IV. ANALYSIS
A.

No Diversity Jurisdiction
Plaintiff has not asserted, and apparently cannot assert, the existence

of diversity jurisdiction because it appears that the parties are all citizens of
Hawaii. And Plaintiff cannot establish diversity jurisdiction by attempting to bring
the action on behalf of the “House of Paet,” instead of herself personally. See
Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (“It is well
established that the privilege to represent oneself pro se provided by [28 U.S.C.]
§ 1654 is personal to the litigant and does not extend to other parties or entities.”).4
B.

Federal Question Jurisdiction
Federal RICO law authorizes a civil right of action. See 18 U.S.C.

§ 1964(c). Thus, construing the Complaint liberally, Plaintiff could assert a civil
RICO claim in federal court.
As pled, however, Plaintiff fails to allege facts sufficient to state a
RICO claim, under 18 U.S.C. §§ 1964(c) and 1962. Plaintiff alleges that by

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Absent diversity jurisdiction (and because the court finds no federal law claim on
which to base supplemental jurisdiction), Plaintiff cannot assert state law negligence claims.
And even if Plaintiff were to establish diversity jurisdiction, she cannot enforce state or federal
criminal law as an individual -- that is, the court lacks jurisdiction to hear allegations of criminal
conduct that are brought by private individuals rather than a governmental agency. See, e.g.,
United States v. Nixon, 418 U.S. 683, 693 (1974) (noting that the executive branch has exclusive
authority to decide whether to prosecute a case).
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admitting that some Defendants “told him not to pay rent[,]” Defendant Komoda
“appears to be in collusion to commit RICO Action as well.” Doc. No. 1, Compl. ¶
19. Plaintiff also alleges that Defendant Antonio “refused to name the bank whom
he was conspiring with” and generally characterized Defendant Antonio’s conduct
as “RICO Actions.” Id. ¶ 21.
“To prevail on a civil RICO claim, a plaintiff must prove that the
defendant engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity and, additionally, must establish that (5) the defendant caused
injury to plaintiff's business or property.” Chaset v. Fleer/Skybox Int’l., LP., 300
F.3d 1083, 1086 (9th Cir. 2002). Racketeering activity must consist of a specified
predicate act.
Plaintiff’s vague, conclusory allegations, against some or all
Defendants as well as unnamed individuals or entities, fall far short of stating a
plausible RICO claim. At a minimum, Plaintiff fails to allege any RICO predicate
offense or facts showing an alleged pattern of racketeering activity. Accordingly,
Plaintiff’s RICO claim is DISMISSED with leave to amend.
C.

Dismissal Pursuant to Federal Rule of Civil Procedure 8
Additionally, the court may dismiss Plaintiff’s Complaint for failure

to comply with Federal Rule of Civil Procedure 8. Rule 8 mandates that a
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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’” may be dismissed for failure to 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); Simmons v. Abruzzo,
49 F.3d 83, 86 (2d Cir. 1995) (stating that a district court has the power to sua
sponte dismiss a complaint for failure to comply with Rule 8 where the complaint
is so confused, ambiguous, or unintelligible that its true substance is well
disguised); 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.”); Nevijel v. N.
Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981) (“A complaint which fails to
comply with [Rule 8] may be dismissed with prejudice[.]”). Put slightly
differently, a district court may dismiss a complaint for failure to comply with Rule
8 where it fails to provide the defendants 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
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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”). “The propriety of dismissal for failure to
comply with Rule 8 does not depend on whether the complaint is wholly without
merit.” McHenry, 84 F.3d at 1179.
Plaintiff’s Complaint -- and, therefore, Plaintiff’s claims -- do not
meet the requirements of Rule 8. The Complaint does not clearly identify all of the
Defendants,5 or indicate which specific facts and claims are asserted against each
Defendant. In short, Plaintiff’s Complaint utterly fails to identify the Defendants
and provide them proper notice of the claims being asserted against them. As a
result, the Complaint does not afford Defendants a fair opportunity to assert
defenses, form an answer, or otherwise conduct discovery. See id. at 1178-80.6
Rule 8 is directed precisely to prevent such a burden. See id. at 1179 (“Prolix,

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Only Monica Fernandez is listed in the caption and it is not clear whether either the
RICO or gross negligence claim is asserted against her. Plaintiff does not provide a last name
for Antonio and does not indicate with whom Jay Komoda is acting in violation of RICO.
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The Complaint also violates Rule 8 because it requires this court to “manage the
litigation without knowing what claims are made against whom.” See McHenry v. Renne, 84
F.3d 1172, 1180 (9th Cir. 1996).
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confusing complaints such as the ones plaintiffs filed in this case impose unfair
burdens on litigants and judges.”).
Accordingly, the court DISMISSES Plaintiff’s Complaint with leave
to amend.
V. CONCLUSION
For the reasons stated above, the court DISMISSES the Complaint
with leave to amend. If Plaintiff chooses to file an amended complaint, Plaintiff
must write short, plain statements telling the court: (1) the treaty, constitutional
right, or statutory right Plaintiff believes was violated; (2) the specific basis of this
court’s jurisdiction; (3) the name of the defendant who violated that right; (4)
exactly what that defendant did or failed to do; (5) how the action or inaction of
that defendant is connected to the violation of Plaintiff’s rights; and (6) what
specific injury Plaintiff suffered because of that defendant’s conduct. Plaintiff
must repeat this process for each person or entity that she names as a defendant. If
Plaintiff fails to affirmatively link the conduct of each named defendant with the
specific injury she suffered, the allegation against that defendant will be dismissed
for failure to state a claim.
Plaintiff must clearly designate on the face of the document that it is
the “Amended Complaint.” The amended complaint must be retyped or rewritten
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in its entirety and may not incorporate any part of the Complaint by reference.
Plaintiff may include only one claim per count. Any cause of action not raised in
the amended complaint is waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987).
Plaintiff is given leave to amend as described in this Order by April 5,
2013. Failure to file an amended complaint by April 5, 2013 will result in
automatic dismissal of this action.
Because the Complaint is dismissed, the following motions are
likewise DISMISSED as moot: (1) “Motion for Perpetual Mandatory Injunction
re: Ejectment for Squatting, Trespassing, and Destruction of Property. Motion to
Show Cause re: Respondents to show cause why they should not be Indicted,”
Doc. No. 2; (2) “Motion for Preventive, Prohibitory, Quia Timet and Perpetual
Injunction,” Doc. No. 3; (3) “Motion for Writ of Recaption,” Doc. No. 9; and (4)
“Amended Motion for Perpetual Mandatory Injunction re: Ejectment, and
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Amended Motion to Show Cause re: Respondents to Show Cause why they should
not be Indicted for multiple crimes committed,” Doc. No. 10.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 5, 2013.

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

Paet v. Fernandez, et al., Civ. No. 13-00079 JMS-KSC, Order: (1) Dismissing Plaintiff’s
Complaint with Leave to Amend; and (2) Dismissing as Moot: (a) “Motion for Perpetual
Mandatory Injunction Re: Ejectment for Squatting, Trespassing, and Destruction of Property.
Motion to Show Cause Re: Respondents to show cause why they should not be Indicted,” Doc.
No. 2; (b) “Motion for Preventive, Prohibitory, Quia Timet and Perpetual Injunction,” Doc. No.
3; (c) “Motion for Writ of Recaption,” Doc. No. 9; and (d) “Amended Motion for Perpetual
Mandatory Injunction Re: Ejectment, and Amended Motion to Show Cause Re: Respondents to
show cause why they should not be Indicted for multiple Crimes committed,” Doc. No. 10

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