Ogeone v. United States of America

Filing 121

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S COUNTER-MOTION FOR SUMMARY JUDGMENT re 87 , 92 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/25/2014. (emt, )CERTIFICATE OF SERV ICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Galina Ogeone shall be served by first class mail at the address of record on November 26, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GALINA OGEONE,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
____________________________

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CIVIL NO. 13-00166 SOM/RLP
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S
COUNTER-MOTION FOR SUMMARY
JUDGMENT

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING
PLAINTIFF’S COUNTER-MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Plaintiff Galina Ogeone originally brought this action

in state court against Dr. Ruth Yang of Kalihi-Palama Health
Center (“KPHC”) for negligence and breach of contract.

Ogeone

alleges that she received inadequate dental services from Dr.
Yang and that KPHC did not fully refund her money after it
promised to do so.
Because KPHC is a federally funded health center, the
United States (the “Government”) took the place of Dr. Yang as
Defendant and removed the case to federal court.

This court

dismissed all negligence claims, leaving for adjudication only
the contract-based claim.
The Government now moves for summary judgment, claiming
that there is no contract between the United States and Ogeone.
In the alternative, the Government claims that, even if a

contract existed, the contract terms have already been fulfilled.
In responding to the Government’s summary judgment motion, Ogeone
requests summary judgment in her own favor.

There is some

evidence in the record going to each of the elements of a
contract.

This evidence creates at least a triable issue as to

the existence of a contract.

Moreover, there are genuine issues

of fact as to whether the Government fulfilled the terms of its
purported contract with Ogeone.

The court therefore denies both

parties’ summary judgment motions.
II.

FACTUAL BACKGROUND.
Ogeone, proceeding pro se, commenced this action in

state court on December 21, 2012.

See ECF No. 1-1.

In her

complaint, Ogeone alleges that Dr. Yang, a dentist at KPHC, did
inadequate work on crowns for Ogeone’s teeth.

Id., PageID # 6.

Dissatisfied with the dental work, Ogeone asked for, and says she
received, a promise that KPHC would fully refund what she had
paid.

Id.

Ogeone claims that she paid $3,450 for her dental

work but was refunded only $2,000.

Id.

Dr. Yang’s employer, KPHC, is a federally funded
community health center.

See ECF No. 87-1, PageID # 680.

The

Government, taking the place of Dr. Yang as Defendant, removed
this case to this court.

See ECF No. 1, 3.

On September 30,

2013, this court dismissed all negligence claims, leaving for

2

adjudication only Ogeone’s claim that she had been promised a
full refund.

See ECF No. 56, PageID # 473.

Moving for summary judgment on the claim for breach of
contract, the Government asserts that there was no valid contract
between the parties.

See ECF No. 87-1, PageID # 685.

The

Government argues that, without a valid contract, this court
lacks subject matter jurisdiction over the case given the
Government’s sovereign immunity.

Id., PageID # 682.

Alternatively, the Government argues that, even if there was a
contract, the Government fulfilled its terms.
93.

Id., PageID # 691-

Ogeone seeks summary judgment in her own favor.

See ECF No.

92.
III.

SUMMARY JUDGMENT STANDARD.
When the jurisdictional issue and substantive claims

“are so intertwined that resolution of the jurisdiction question
is dependent on factual issues going to the merits, the district
court should employ the standard applicable to a motion for
summary judgment.”
(9th Cir. 1987).

Rosales v. United States, 824 F.2d 799, 803
The “resolution of the jurisdiction facts is

akin to a decision on the merits.”
704 F.2d 1074, 1077 (9th Cir. 1983).

Augustine v. United States,
Thus, “the moving party

should prevail only if the material jurisdictional facts are not
in dispute and the moving party is entitled to prevail as a
matter of law.”

Id.

If the summary judgment standard is not

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met, then the “ jurisdictional facts must be determined at trial
by the trier of fact.”

Id.

Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).

Fed.

See Addisu v. Fred Meyer, Inc., 198 F.3d 1130,

1134 (9th Cir. 2000).

Movants must support their position that a

material fact is or is not genuinely disputed by either “citing
to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for the purposes of the motion only), admissions, interrogatory
answers, or other materials”; or “showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact.”

Fed. R. Civ. P. 56(c).

One of

the principal purposes of summary judgment is to identify and
dispose of factually unsupported claims and defenses.

Celotex

Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.

See id. at 323.

The burden initially falls on

the moving party to identify for the court those “portions of the
materials on file that it believes demonstrate the absence of any

4

genuine issue of material fact.”

T.W. Elec. Serv., Inc. v. Pac.

Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)
(citing Celotex Corp., 477 U.S. at 323).

“When the moving party

has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to
the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The nonmoving party may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
Elec. Serv., 809 F.2d at 630.

T.W.

At least some “‘significant

probative evidence tending to support the complaint’” must be
produced.

Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.

Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134
(“A scintilla of evidence or evidence that is merely colorable or
not significantly probative does not present a genuine issue of
material fact.”).
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.

T.W. Elec. Serv., 809 F.2d at 631.

Inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.

Id.

When “direct evidence”

produced by the moving party conflicts with “direct evidence”

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produced by the party opposing summary judgment, “the judge must
assume the truth of the evidence set forth by the nonmoving party
with respect to that fact.”
IV.

Id.

ANALYSIS.
A.

There Are Triable Issues as to Whether a Valid
Contract Existed Between the Parties.

Because the Government is generally immune from suit,
this court has subject matter jurisdiction over the Government as
a defendant only if sovereign immunity has been waived.
United States v. Dalm, 494 U.S. 596 (1990).

See

There must be a

waiver of sovereign immunity with respect to each and every claim
brought against the Government.

See Weber v. Dep’t of Veterans

Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (holding that a
“person attempting to sue a federal agency or officer must
demonstrate that the claim being asserted is covered by a
specific statutory authorization to sue the United States”); Orff
v. United States, 358 F.3d 1137, 1142 (9th Cir. 2004) (holding
that “[a]ny claim for which sovereign immunity has not been
waived must be dismissed for lack of jurisdiction”); Balser v.
Dep’t of Justice, Office of U.S. Tr., 327 F.3d 903, 907 (9th Cir.
2003) (stating that “[a] court lacks subject matter jurisdiction
over a claim against the United States if it has not consented to
be sued on that claim”).
Now that all negligence claims have been dismissed,
this court examines whether sovereign immunity has been waived
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with respect to the remaining breach of contract claim.

The

“Little Tucker Act,” codified as 28 U.S.C. § 1346, provides such
a waiver for a breach of contract claim:
The district courts shall have original
jurisdiction . . . of . . . any other civil
action or claim against the Untied States,
not exceeding $10,000 in amount, founded
either upon the Constitution, or any Act of
Congress, or any regulation of an executive
department, or upon any express or implied
contract with the United States.
28. U.S.C. § 1346 a(2) (emphasis added).

Thus, to qualify for a

Little Tucker Act waiver, a plaintiff’s claim “must be for money
damages against the United States,” and a plaintiff must show
that the “source of substantive law he relies upon can fairly be
interpreted as mandating compensation by the Federal Government
for the damages sustained.”

Matsuo v. United States, 416 F.

Supp. 2d 982 (D. Haw. 2006).
In its Motion for Summary Judgment, the Government
asserts that there is no Little Tucker Act waiver here because
Ogeone cannot establish that there was a contract.
87-1, PageID # 684-85.

See ECF No.

According to the Government, a contract

within the meaning of the Little Tucker Act requires a
manifestation of mutual assent between the parties,
consideration, and actual authority by a Government
representative to bind the Government to the contract.
No. 87-1, PageID # 685.

See ECF

This court concludes that there are

triable questions of fact as to whether the alleged agreement
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between Ogeone and KPHC employees satisfies these requirements.
That is, the issue of subject matter jurisdiction intersects the
merits of Ogeone’s contract claim.

Just as the existence of a

contract is a prerequisite for subject matter jurisdiction, a
contract is a prerequisite for Ogeone to prevail on the merits of
her contract claim.

When jurisdictional and merits-based issues

intersect, a court may try the issues together.

See Augustine,

704 F.2d at 1077.
1) There is a Question of Fact as to the Mutual
Assent Requirement.
A manifestation of mutual assent occurs when parties
attach substantially the same meaning to their manifestations
such that each party knows or has reason to know the meaning
attached by the other.

See Local Motion, Inc. v. Niescher, 105

F.3d 1278, 1280 (9th Cir. 1997).

An objective standard is used

to determine the existence of mutual assent, and a “‘party’s
words or acts are judged under a standard of reasonableness in
determining whether he or she has manifested an objective
intention to agree.’”

Constantino v. U.S. Bank, N.A., No. 09-

00066, 2011 WL 4435388, at *4 (D. Haw. 2011) (quoting Standard
Mgt., Inc. v. Kekona, 53 P.3d 264, 273 (Haw. App. 2001)); see
also Boskoff v. Yano, 217 F. Supp. 2d 1077, 1088 (D. Haw. 2001).
In her “Response to Government’s Motion for Summary
Judgment of 09-02-2014,” Ogeone asserts that Dr. Yang promised to
perform the dental procedure for $690 per crown and to “refund
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money if plaintiff was not satisfied with her dental services.”1
ECF No. 92, PageID # 737.

According to Ogeone, when she

requested a refund, the director of KPHC, Dr. Keith Larson,
agreed to give her a full refund.

ECF No. 1-1, PageID # 7.

By

both parties’ accounts, KPHC then refunded $2000 to Ogeone.

See

ECF No. 92, PageID # 737, ECF No. 87-1, PageID # 689.
The Government argues that Ogeone has failed to show
that there was mutual assent between the parties.
87-1, PageID # 689-91.

See ECF No.

The Government argues that KPHC’s refund

of $2000 “establishes only the subsequent conduct of the
parties,” not a mutual intent to enter into any contract.
PageID # 689-90.

Id.,

This court must interpret the facts in the

light most favorable to Ogeone in deciding the present motion.
Viewed in that light, KPHC’s refund of $2000 provides some
evidence that Dr. Larson thought there was some agreement.

This

coincides with Ogeone’s assertion that Dr. Larson actually did
agree to give her a refund.

At the very least, there is a

1

Although Ogeone asserts facts without attesting to them as
required by Rule 56 of the Federal Rules of Civil Procedure, the
court, for purposes of deciding the present motions, considers
Ogeone’s assertions to the extent it appears that, at trial,
Ogeone could offer admissible evidence supporting the assertions.
See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)
(holding that, at the summary judgment stage, the court does “not
focus on the admissibility of the evidence’s form,” but “on the
admissibility of its contents”). Because Ogeone herself could
presumably testify to the matters asserted based on personal
knowledge, the court considers her unsworn assertions.
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triable question of fact as to whether there was a manifestation
of mutual intent.
2) There is a Question of Fact as to Whether There
Was Valid Consideration.
“Consideration” is generally defined as a bargained-for
exchange in which one party receives some benefit or the other
party suffers a detriment.

See Douglass v. Pflueger Hawaii,

Inc., 110 Haw. 520, 534 (2006) (citing Gibson v. Neighborhood
Health Clinics, Inc., 121 F. 3d 1126, 1130 (7th Cir. 1997)); see
also Restatement (Second) of Contracts § 71 (1981) (stating that
“[t]o constitute consideration, a performance or a return promise
must be bargained for”).
When money is paid on a contract and the return
consideration fails, that money may be recovered back.

See Bank

of Am. Nat’l. Trust & Sav. Ass’n v. Hayden, 231 F.2d 595, 601
(9th Cir. 1956) (stating that “[t]he law implies a promise to
return or refund money paid upon a consideration which has
entirely failed”).

When money is paid for goods or services,

there is “an implied promise to restore money which the defendant
in equity and good conscience should not retain.”

Id.

The Government argues that Ogeone fails to provide
evidence establishing consideration for any agreement.
87-1, PageID # 690.

ECF No.

Specifically, the Government asserts that

Ogeone “did not relinquish any rights, services, or goods in
order to attain” the refund.

Id.
10

However, both parties agree

that Ogeone made some payment for dental work.
PageID # 737, ECF No. 87-1, PageID # 689.
for a service is valid consideration.

See ECF No. 92,

An exchange of money

It appears that KPHC then

continued to hold Ogeone’s payment, requiring her to seek a
refund.

See ECF No. 92, PageID # 738.

KPHC’s alleged retention

of Ogeone’s money could be viewed as a continuing detriment to
Ogeone, constituting consideration.

Viewing in the light most

favorable to Ogeone her assertions that KPHC provided
unsatisfactory dental services and that she asked for a refund,
the court concludes that there is at least a triable issue as to
whether Ogeone gave consideration for any promise to refund
Ogeone’s money.
3) KPHC Employees Had Authority To Enter Into A
Contract On Behalf Of The Government.
Courts have held that “[a]uthority to bind the
[g]overnment is generally implied when such authority is
considered to be an integral part of the duties assigned to a
[g]overnment employee.”

H. Landau & Co. v. United States, 886

F.2d 322, 324 (Fed. Cir. 1989) (quoting J. Cibinic & R. Nash,
Formation of Government Contracts 43 (1982)); see also United
States v. Bissett-Berman Corp., 481 F.2d 764, 768-69 (9th Cir.
1973) (holding that an agent acting with implied actual authority
binds the government to a contract).
The Government argues that Ogeone fails to provide any
evidence that Dr. Yang or Dr. Larson had “actual authority to
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enter into a contract on behalf of the Government.”
1, PageID # 690.

ECF No. 87-

According to the Government, “[a] contract with

the United States is only valid if the Government representative
has the actual authority to bind the Government into a contract.”
Id., PageID # 687.
The ability to enter into agreements for the rendering
of dental services and for disbursing refunds when the services
are inadequate is a matter that appears to be part of duties
integral to the operation of a health clinic.

Even if Dr. Yang

did not have the authority to enter into such an agreement, Dr.
Larson, as director of KPHC, appears to have had such authority,
as he allegedly authorized a refund of $2000 to Ogeone.

This

alleged action indicates that Dr. Larson could bind the alleged
refund agreement.
Ogeone offers at least some evidence of the necessary
elements for a valid contract.

Such evidence suffices to defeat

the jurisdictional portion of the Government’s motion.
B.

There Is A Genuine Dispute Of Fact As To Whether
the Government Fulfilled The Terms Of the Alleged
Contract.

The Government argues that, even if there was a valid
contract between the parties, it is entitled to summary judgment
because it fulfilled the terms of the contract.
PageID # 691-93.

ECF No. 87-1,

The Government asserts that Ogeone paid a total

12

of $2,000 for dental services, and that she was refunded that
entire amount at her request.

Id., PageID # 692.

Although Ogeone agrees that she was refunded $2,000,
she contends that she paid $3,450.

ECF No. 92, PageID # 737.

Ogeone provides the affidavit of her daughter, Svetlana Ogeone,
who attests that she accompanied her mother to KPHC and paid
“around $4000 cash” for the dental services.

ECF No. 52-8,

PageID # 444.
While such evidence precludes summary judgment for the
Government, it does not suffice to entitle Ogeone to summary
judgment.

There is, instead, a genuine dispute as to whether the

terms of the alleged contract to refund Ogeone’s money were
fulfilled.
V.

CONCLUSION.
Genuine disputes of fact preclude summary judgment to

either party.2

2

On October 9, 2014, Plaintiff submitted a second brief
responding to Defendant’s Motion for Summary Judgment. See ECF
No. 104. Pursuant to Local Rule 7.4, Plaintiff is only allowed
to submit a motion and reply unless the court gives her leave to
submit supplemental briefing. Because Plaintiff did not receive
leave of the court to submit further supplemental briefing, the
court strikes her “Reply to Defendant’s Reply Memorundum [sic] in
Support of Defendant’s Motion for Summary Judgment of September
30, 2014.” Even if the court considered the unauthorized brief,
the court’s ruling would be the same, as the unauthorized brief
either repeats arguments raised in earlier briefs or rehashes
matters from other stages of the litigation that are not in issue
on the summary judgment motions.
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The court decides these matters without a hearing, as
allowed by Local Rule 7.2(d).

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 25, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Ogeone v. United States of America, Civ. No. 13-00166 SOM/RLP;
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING
PLAINTIFF’S COUNTER-MOTION FOR SUMMARY JUDGMENT.

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