Malinay et al v. Nishimura et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/14/13. "Because Williams is not authorized to represent the Malanays in this court, the Complaint he filed on their beh alf is dismissed. This dismissal is without prejudice. This means that, if the Malanays choose to proceed with this matter, they may sign, file, and proceed with this matter pro se. Alternatively, they may have a licensed attorney file the Amende d Complaint on their behalf. If the Malanays do not properly file an Amended Complaint by September 13, 2013, the Clerk of Court is directed to close this case." "The Clerk of Court is directed to send a copy o f this order to (1) Anthony Williams, P.O. Box 8918, Honolulu, Hawaii, 96830; (2) Henry Macasio Malinay and Marilyn Corpuz Malinay, 98-588 Kaimu Loop, Aiea, Hawaii 96701; (3) Carol A. Eblen, Esq., Johnathan C. Bolton, Esq., and Audrey M. Yap, Esq. , c/o Goodsill Anderson Quinn & Stifel LLP, 999 Bishop Street, 16th Floor, Honolulu, Hawaii 96813; and (4) Hon. Rhonda Nishimura, Circuit Court, First Circuit, 777 Punchbowl Street, Honolulu, Hawaii 96813." (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). Anthony Williams, Henry Macasio Malinay and M arilyn Corpuz Malinay shall be served by first class mail at the addresses of record on August 15, 2013. Pursuant to this order, a copy of this order shall also be served to Carol A. Eblen, Esq., Jonathan C. Bolton, Esq. and Audrey M. Yap, Esq., c/o Goodsill Anderson Quinn & Stifel LLP at 999 Bishop Street, 16th Floor, Honolulu, HI 96813 and Hon. Rhonda Nishimura at Circuit Court of the First Circuit, State of Hawaii, 777 Punchbowl Street, Honolulu, HI 96813 on August 15, 2013.

Malinay et al v. Nishimura et al

Doc. 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HENRY MACASIO MALINAY; and
MARILYN CORPUZ MALINAY,

)
)
)
Plaintiffs,
)
)
vs.
)
)
RHONDA NISHIMURA; FIRST
)
CIRCUIT COURT OF STATE OF
)
HAWAII; CAROL EBLEN;
)
JOHNATHAN BOLTON; and AUDREY )
YAP,
)
)
Defendants.
)
)
_____________________________ )

CIVIL NO. 13-00372 SOM-KSC
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
On July 26, 2013, Henry and Marilyn Malinay filed the
present action.

The Complaint in this matter was not signed by

either Henry or Marilyn Malinay.

It was instead signed by

Anthony Williams, who, while purporting to be a private attorney
general, is not a member of the bar such that he can represent
others before this court.
On August 5, 2013, the court issued an Order to Show
Cause Why Complaint Should Not Be Dismissed Because Anthony
Williams Is Not an Attorney Who Is Licensed to Practice Law
Before this Court.

See ECF No. 5.

On August 5, 2013, Williams filed a response as the
“private attorney general” for the Malanays.

See ECF No. 6.

According to exhibits attached to that document, the Malanays
gave a “Statutory Short Form Power of Attorney” to “Common Law

Dockets.Justia.com

Office of America,” including Williams.

See ECF No. 6-3.

Even

assuming that these are valid powers of attorney, Williams may
not represent the Malanays as their attorney in this matter.
The court starts by recognizing that, in all courts of
the United States, “parties may plead and conduct their own cases
personally or by counsel.”

See 28 U.S.C. § 1654.

However, the

right to proceed pro se in civil cases is a personal right.

See

C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th
Cir. 1987) (“Although a non-attorney may appear in propria
persona in his own behalf, that privilege is personal to him. . .
. He has no authority to appear as an attorney for others than
himself.” (citation omitted)).
Nor does a power of attorney that allows Person A to
act on behalf of Person B give Person A the right to act as
Person B’s attorney.

A power of attorney allows Person A to do

on behalf of Person B matters for which an attorney’s license is
not required.

Person A may sign checks or loan documents, for

example, but may not provide legal representation if not licensed
to practice law.

See In re Foster, 2012 WL 6554718, *5 (9th Cir.

B.A.P. Dec. 14, 2012) (concluding that an attorney-in-fact, as
opposed to an attorney-at-law, is not authorized to sign a
complaint or otherwise appear on behalf of a principal); Ryan v.
Hyden, 2012 WL 4793116, *4 (S.D. Cal. Oct. 9, 2012) (holding
that, even if a person was given a durable power of attorney with

2

broad language regarding claims and litigation, that power of
attorney does not validly provide the right to represent that
person as his or her attorney); United States v. Davis, 2012 WL
540562, *2 (E.D. Ky. Feb. 17, 2012) (“Even assuming that Slone
has Davis’ power of attorney, the law still would not permit her
to represent Davis as an attorney-at-law in legal proceedings.”);
Harris v. Philidelphia Police Dep’t, 2006 WL 3025882, *3 (E.D.
Pa. 2006) (“federal courts do not permit a non-attorney to engage
in the unauthorized practice of law by pursuing an action pro se
with the plaintiff’s power of attorney”); Jacox v. Dep’t of
Defense, 2007 WL 118102, *2 (M.D. Ga. 2007) (“Consistent with the
foregoing, therefore, the Court finds that 28 U.S.C. § 1654
requires pro se litigants to conduct their own cases personally
and does not authorize nonlawyers to conduct cases on behalf of
individuals.

Moreover, a power of attorney may not be used to

circumvent state law prohibitions on the unauthorized practice of
law.”); DePonceau v. Pataki, 315 F. Supp. 2d 338, 341 (W.D.N.Y.
2004) (“The fact that Castrechin and Langill have granted
DePonceau power of attorney to represent them does not authorize
him to act as their counsel on this action” as “New York law
prohibits the practice of law in this state on behalf of anyone
other than himself or herself by a person who is not an admitted
member of the bar, regardless of the authority purportedly
conferred by execution of a power of attorney.” (quotation marks

3

omitted)); Drake v. Superior Court, 26 Cal. Rptr. 829, 832 (Cal.
Ct. App. 1994) (“Long before passage of the Power of Attorney
Act, the law distinguished between an attorney in fact and an
attorney at law and emphasized that a power of attorney is not a
vehicle which authorizes an attorney in fact to act as an
attorney at law.” (footnote omitted)); People v. Bowens, 2012 WL
6944048, *5 (Ill. App. Mar. 1, 2012) (“Although there has been no
Illinois case directly addressing this issue, other jurisdictions
have plainly held that the authority bestowed upon an agent
through a power of attorney does not include empowering the
attorney-in-fact to appear and represent the principal as an
attorney-at-law because to interpret the power of attorney in
this manner would circumvent the prohibition against the
unauthorized practice of law.”); see also Johns v. County of San
Diego, 114 F.3d 874, 876 (9th Cir. 1997) (general power of
attorney could not provide the personal right to assert
constitutional claim).
Hawaii has a statute prohibiting the unauthorized
practice of law.

See Haw. Rev. Stat. § 605-14.

that statute is a misdemeanor.

Any violation of

See Haw. Rev. Stat. § 605-17.

Williams may not use a power of attorney to skirt this
prohibition.

The Hawaii Supreme Court has recognized that these

statutes were enacted to protect the public against incompetence

4

or improper activity.

See Fought & Co. v. Steel Eng’r &

Erection, Inc., 87 Haw. 37, 45 951 P.2d 487, 495 (1998).
Williams’s pleadings certainly do not demonstrate
competence to represent the Malanays.

For example, he cites to

certain provisions of the Uniform Commercial Code after his
signature that appear inapplicable to this case.
questionable arguments.

He also makes

For example, in his opposition to the

Order to Show Cause, he states, “Anyone who has taken an oath to
become a member of the bar is a traitor to the American people
and should be tried and convicted of treason against the United
States of America.”

See ECF No. 6, PageID # 22.

Williams’s representation of the Malanays in this
action also violates Local Rule 83.2, which states, “Only a
member of the bar of this court who is also an active member in
good standing of a state bar or its equivalent, or any attorney
otherwise authorized by these rules to practice before this
court, may enter an appearance for a party . . . .”
Although Williams claims that the state bar has an
illegal monopoly that violates Hawaii’s prohibition on unfair and
deceptive methods of competition (found in section 480-2 of
Hawaii Revised Statutes), he provides no legal support for that
assertion.

In fact, it appears that Williams may be the one who

is violating section 480-2 through what appears to be a violation
of section 605-14 of Hawaii Revised Statutes.

5

Williams similarly

fails to show any deprivation of a constitutional right based on
his assertion that the Malanays have a right to choose their own
counsel, as he has no right to represent them in that capacity,
even assuming he has a valid power of attorney.
Because Williams is not authorized to represent the
Malanays in this court, the Complaint he filed on their behalf is
dismissed.

This dismissal is without prejudice.

This means

that, if the Malanays choose to proceed with this matter, they
may sign, file, and proceed with this matter pro se.
Alternatively, they may have a licensed attorney file the Amended
Complaint on their behalf.

If the Malanays do not properly file

an Amended Complaint by September 13, 2013, the Clerk of Court is
directed to close this case.
Williams is ordered to immediately stop representing
the Malanays in this matter.

If Williams continues to do so, the

court will issue an order to show cause why he should not
personally be sanctioned.

The court will also strike any future

document filed by Williams on behalf of the Malanays.

Williams

should also be aware that the unauthorized practice of law is a
misdemeanor.

If the Malanays have paid any money to Williams in

the belief that he was authorized to serve as their attorney,
they may seek the return of that money, file a lawsuit against
Williams, and/or contact Hawaii’s attorney general or the Hawaii
state or federal bar associations.

6

See Haw. Rev. Stat. § 605-

15.1 (“The attorney general or any bar association in this State
may maintain an action for violations of section 605-14.”).
The Clerk of Court is directed to send a copy of this
order to (1) Anthony Williams, P.O. Box 8918, Honolulu, Hawaii,
96830; (2) Henry Macasio Malinay and Marilyn Corpuz Malinay, 98588 Kaimu Loop, Aiea, Hawaii 96701; (3) Carol A. Eblen, Esq.,
Johnathan C. Bolton, Esq., and Audrey M. Yap, Esq., c/o Goodsill
Anderson Quinn & Stifel LLP, 999 Bishop Street, 16th Floor,
Honolulu, Hawaii 96813; and (4) Hon. Rhonda Nishimura, Circuit
Court, First Circuit, 777 Punchbowl Street, Honolulu, Hawaii
96813.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 14, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Maninay, et al. v. Nishimura, et al.; Civil No. 13-00372 SOM/BMK; ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND

7