Roe No. 8 v. Ram

Filing 26

ORDER DENYING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, AND MOTION FOR DETERMINATION OF INSUFFICIENCY OF SERVICE OF PROCESS re 8 Motion to Dismiss for Failure to State a Claim. Signed by JUDG E LESLIE E. KOBAYASHI on 08/29/2014. (eps)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
JOHN ROE NO. 8, JOHN ROE NO. )
16, JOHN ROE NO. 17, JOHN ROE )
NO. 18, AND JOHN ROE NO. 19, )
)
Plaintiffs,
)
)
vs.
)
)
JAY RAM aka GARY WINNICK;
)
JOHN DOES 1-10; JANE DOES 1- )
10; DOE CORPORATIONS 1-10;
)
DOE PARTNERSHIPS 1-10; DOE
)
NON-PROFIT ENTITIES 1-10; and )
DOE GOVERNMENTAL ENTITIES 1- )
10,
)
)
Defendants.
)
_____________________________ )

CIVIL 14-00027 LEK-RLP

ORDER DENYING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A CLAIM, AND MOTION FOR
DETERMINATION OF INSUFFICIENCY OF SERVICE OF PROCESS
On February 12, 2014, Defendant Jay Ram, also known as
Gary Winnick (“Defendant”), filed his Motion to Dismiss First
Amended Complaint for Failure to State a Claim, and Motion for
Determination of Insufficiency of Service of Process (“Motion”).
[Dkt. no. 8.]

On July 14, 2014, Plaintiffs John Roes Nos. 8, 16,

17, 18 and 19 (“Plaintiffs”) filed their memorandum in
opposition.

[Dkt. no. 24.]

August 4, 2014.

This matter came on for hearing on

After careful consideration of the Motion,

supporting and opposing memoranda, and the arguments of counsel,
Defendant’s Motion is HEREBY DENIED for the reasons set forth
below.

BACKGROUND
On October 21, 2013, Plaintiffs filed the First Amended
Complaint (“Complaint”) in the Circuit Court of the First
Circuit, State of Hawai`i.

[Notice of Removal (dkt. no. 1).]

On

January 22, 2014, Defendant removed the action to this Court,
asserting diversity jurisdiction since Defendant is a Florida
citizen and Plaintiffs are citizens of Hawai`i, Washington, and
California.

[Id.]

In the Complaint, Plaintiffs allege that, between 1983
and 1987, Defendant either adopted, began to take care of or, in
the case of John Roe No. 19, met Plaintiffs.
(Complaint) at ¶¶ 2, 6-7, 11-12, 16, 20.]

[Id., Exh. A

From 1983 to 1987,

Defendant lived in Corning, California, and he moved with
John Roes 8, 16, 17 and 18 to Hakalau, Hawai`i in 1987, where he
operated a farm.1

Plaintiffs allege that, from approximately

1984 until 1993, Defendant isolated the boys and sexually abused
them.

[Id. at ¶¶ 1-22.]

They further allege that Defendant’s

“sexual abuse and exploitation” were “part of a larger pattern of
sexual abuse[,]” which caused Plaintiffs physical and mental
harm.

[Id. at ¶¶ 23-25.]
The Complaint alleges the following claims: sexual

assault and battery (Count I); intentional infliction of

1

It appears, though it is not clearly alleged, that John
Roe No. 19 met Defendant in Hawai`i.
2

emotional distress (Count II); grossly negligent infliction of
emotional distress (Count III); and punitive damages (Count IV).
Plaintiffs seek the following relief: general, special and
punitive damages; attorneys’ fees and costs; pre- and postjudgment interest; and all other appropriate relief.

[Id. at pg.

12.]
DISCUSSION
Defendant challenges this lawsuit on two grounds:
(1) that he was improperly served with process, and (2) that Haw.
Rev. Stat. § 657-1.8(b) (“Section (b)”), under which Plaintiffs
bring the lawsuit, is unconstitutional.

The Court rejects both

of these challenges for the reasons that follow.
I.

Service of Process
Defendant moves to dismiss the Complaint due to

insufficient process, pursuant to Fed. R. Civ. P. 12(b)(4).
[Mem. in Supp. of Motion at 30-31.]

In support of this part of

the Motion, Defendant offers the declaration of his son, Prahlad
Jamieson, who attests that he, Mr. Jamieson, never physically
received any papers from the process server on January 2, 2014
because he let them fall to the ground and never picked them up
or read them, and that the wind blew them away.

[Id., Decl. of

Prahlad Jamieson (“Jamieson Decl.”).]
One way to properly serve an individual is to “leav[e]
a copy of [the summons and the complaint] at the individual’s

3

dwelling or usual place of abode with someone of suitable age and
discretion who resides there[.]”

Fed. R. Civ. P. 4(e)(2)(B); see

also Haw. R. Civ. P. 4(d)(1)(A) (using nearly identical
language).

The Jamieson Declaration makes clear that Defendant

was properly served by this method.

First, Mr. Jamieson admits

that the property where the papers were delivered was his and
Defendant’s home, that is, Defendant’s “dwelling or usual place
of abode.”

[Jamieson Decl. at 1.]

Second, Mr. Jamieson’s four-

page declaration demonstrates that he is of “suitable age and
discretion,” as confirmed by the declaration of the process
server, Lynn Anderson, offered by Plaintiffs.

[Mem. in Opp.,

Decl. of Lynn A. Anderson (“Anderson Decl.”) at 3 (attesting that
Jamieson “looked to be about 18”).]

Third, Mr. Jamieson attests

that Ms. Anderson told him “something like, ‘I have some papers
for you.’”

[Jamieson Decl. at 2.]

While Mr. Jamieson denies

having physically received the papers from her or that he even
saw them until the next morning “strewn on the street,” under the
circumstances, Defendant was sufficiently served.
In addition, the Court affords considerable weight to
the detailed statement by Ms. Anderson,2 who describes
Defendant’s attempts to evade receipt of service, including by

2

There is nothing in the record to dispute that Ms.
Anderson was acting as an objective third-party in the matter,
and that Ms. Anderson has more than twenty years experience as a
process server. [Anderson Decl. at 1.]
4

not answering the front door, and rolling up the car window and
driving directly past her when she attempted to serve him
directly.

[Anderson Decl. at 2-3.]

In contrast to Mr. Jamieson,

Ms. Anderson attests that she gave the papers to Mr. Jamieson,
who took them, and then intentionally dropped them.

[Id. at 3.]

Fed. R. Civ. P. 4 is “a flexible rule that should be
liberally construed so long as a party receives sufficient notice
of the complaint.”

S.E.C. v. Ross, 504 F.3d 1130, 1140 (9th Cir.

2007) (citation and internal quotation marks omitted).

Not only

does Defendant have notice of the Complaint (which he admitted in
the Notice of Removal at ¶ 1), he has engaged counsel who removed
the case to this Court and now has briefed and argued this
Motion.

Moreover, this is in spite of apparent attempts to avoid

service, see Anderson Decl. at 2-3; Mem. in Opp., Decl. of
Mark Gallagher at ¶¶ 3-4 & Exh. 1 (summons returned as “refused
unclaimed, gate closed”).

The Court FINDS that Ms. Anderson’s

actions more than suffice to fulfill the requirements of Rule 4,
and thus Defendant has been sufficiently served.

See Henderson

v. United States, 517 U.S. 654, 672 (1996) (holding that “the
core function of service is to supply notice of the pendency of a
legal action, in a manner and at a time that affords the
defendant a fair opportunity to answer the complaint and present
defenses and objections” (footnote omitted)); cf. Doe v. Qi, 349
F. Supp. 2d 1258, 1275 & n.5 (N.D. Cal. 2004) (finding service

5

proper and collecting cases where the defendants or their agents
did not actually take possession of papers but were found to have
been served).

Thus, the Court DENIES the Motion as to

Defendant’s claim of insufficient service of process.
II.

Constitutional Challenge
The majority of Defendant’s memorandum in support of

the Motion focuses on his argument that Section (b) is
unconstitutional under the United States and Hawai`i
Constitutions, which the Court now considers in turn.
A.

Section (b)
Haw. Rev. Stat. § 657-7, which was most recently

amended in 1972, provides:

“Actions for the recovery of

compensation for damage or injury to persons or property shall be
instituted within two years after the cause of action accrued,
and not after, except as provided in section 657-13.”

Section

657-13 provides, inter alia, that individuals who are injured
when they are minors can bring claims within two years of
reaching age eighteen.

Defendant argues that, under these

sections, the latest any of Plaintiffs could have brought their
claims would have been 1994.3

[Mem. in Supp. of Motion at 4-5.]

3

Further, he argues that since none of Plaintiffs claim
that they had repressed memories of the abuse, the Court may not
toll accrual until discovery, as recognized in Dunlea v. Dappen,
83 Hawai`i 28, 36, 924 P.2d 196, 204 (1996) abrogated on other
grounds by Hac v. Univ. of Hawaii, 102 Hawai`i 92, 73 P.3d 46
(2003). [Mem. in Supp. of Motion at 5.]
6

On April 24, 2012, the Hawai`i Legislature approved –
effective immediately – legislation extending the statute of
limitations for damage actions brought by victims of childhood
sexual abuse.

In addition, the statute, codified at Haw. Rev.

Stat. § 657-1.8, includes a two-year window (Section (b))
allowing purported victims to bring lawsuits that would have been
barred by the prior statute of limitations.4

Section 657-1.8

provides in pertinent part, as amended on June 20, 2014:
(a) Notwithstanding any law to the contrary,
except as provided under subsection (b), no action
for recovery of damages based on physical,
psychological, or other injury or condition
suffered by a minor arising from the sexual abuse
of the minor by any person shall be commenced
against the person who committed the act of sexual
abuse more than:
(1) Eight years after the eighteenth birthday
of the minor or the person who committed the
act of sexual abuse attains the age of
majority, whichever occurs later; or
(2) Three years after the date the minor
discovers or reasonably should have
discovered that psychological injury or
illness occurring after the age of minor’s
eighteenth birthday was caused by the sexual
abuse,
whichever comes later.
. . . .
(b) For a period of four years after April 24,
2012, a victim of child sexual abuse that occurred
in this State may file a claim in a circuit court

4

Section (b) was extended another two years on June 20,

2014.
7

of this State against the person who committed the
act of sexual abuse if the victim is barred from
filing a claim against the victim’s abuser due to
the expiration of the applicable civil statute of
limitations that was in effect prior to April 24,
2012.
. . . .
(c) A defendant against whom a civil action is
commenced may recover attorney’s fees if the court
determines that a false accusation was made with
no basis in fact and with malicious intent.
A
verdict in favor of the defendant shall not be the
sole basis for a determination that an accusation
had no basis in fact and was made with malicious
intent. The court shall make an independent
finding of an improper motive prior to awarding
attorney’s fees under this section.
(d) In any civil action filed pursuant to
subsection (a) or (b), a certificate of merit
shall be filed by the attorney for the plaintiff,
and shall be sealed and remain confidential. The
certificate of merit shall include a notarized
statement by a:
(1) Psychologist licensed pursuant to chapter
465;
(2) Marriage and family therapist licensed
pursuant to chapter 451J;
(3) Mental health counselor licensed pursuant
to chapter 453D; or
(4) Clinical social worker licensed pursuant
to chapter 467E;
who is knowledgeable in the relevant facts and
issues involved in the action, who is not a party
to the action.
The notarized statement included in the
certificate of merit shall set forth in reasonable
detail the facts and opinions relied upon to
conclude that there is a reasonable basis to
believe that the plaintiff was subject to one or
8

more acts that would result in an injury or
condition specified in [subsection] (a).
(Emphasis added; brackets in original.)

Plaintiffs bring this

lawsuit under Section (b), see Complaint at pg. 3, ¶ h
(“Plaintiffs have satisfied the requirements of Hawaii Revised
Statutes, Section 657, specifically Act 68 enacted in 2012.”),
which Defendant challenges.
B.

Facial Challenges
Defendant has made clear – both in his memorandum in

support of the Motion and through his counsel at the hearing on
the Motion – that he is not bringing an “as applied” challenge to
Section (b).

The Court, therefore, limits its discussion and

disposition to the facial challenges to Section (b) as presented
in the Motion.

Defendant brings his challenge pursuant to the

United States and Hawai`i Constitutions.
1.

Federal Constitutional Challenge

The United States Supreme Court has held that “a
plaintiff can only succeed in a facial challenge by
establish[ing] that no set of circumstances exists under which
the Act would be valid, i.e., that the law is unconstitutional in
all of its applications.”

Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449 (2008) (alteration in Wash.
State Grange) (citation and internal quotation marks omitted).
Alternatively, “a facial challenge must fail where the statute
has a plainly legitimate sweep.”

Id. (citation and internal
9

quotation marks omitted).
Defendant has failed to make a sufficient showing under
either of these tests.5

The substance of his argument for facial

unconstitutionality amounts to the following:
“This is an incredibly unfair statute to any
person against whom sex abuse allegations are
made. Sex abuse allegations are easily made and
difficult to refute. All that is required is a
mere claim, based on no substantial evidence at
all but the claim itself. Such allegations make
the defendant out to be a ‘monster’ and put the
defendant in the position of having to run around
trying to secure potential witnesses from decades
past.” [Mem. in Supp. of Motion at 20.]
“This class of cases is subject to abuse, false
allegations, lack of evidence, and extremely stale
claims. Claims are easy to make - merely based on
verbal claims often decades old with no other
evidentiary support whatsoever - and hard to
refute while the alleged sex abusers are
publically humiliated and assumed to be guilty.”
[Id. at 22.]
While the Court acknowledges that there may be certain
evidentiary aspects of Defendant’s case, and others arising from
twenty-year-old incidents, that make them difficult to defend

5

The Supreme Court also recognizes a third test, finding a
statute facially unconstitutional where a “substantial number of
its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” Wash. State Grange, 552
U.S. at 449 n.6 (citation and internal quotation marks omitted).
However, it has expressly limited this overbreadth test to the
first amendment context, see United States v. Stevens, 559 U.S.
460, 473 (2010), and only finds them successful where the parties
specifically describe “the instances of arguable overbreadth[,]”
Wash. State Grange, 552 U.S. at 449 n.6 (citation omitted).
Defendant has not raised the argument, let alone shown why it
should apply in this context or how Section (b) is overbroad.
Therefore, the Court does not here analyze this test.
10

against, his arguments regarding unfairness fall far short of
establishing that Section (b) is “unconstitutional in all of its
applications.”

See Wash. State Grange, 552 U.S. at 449.

For

example, Section (b) could have the effect of reviving a claim
that ran on April 23, 2012.

Defendant makes no showing that such

a claim would produce the same purported constitutional failings
regarding staleness as with his case.

Further, all sex abuse

claims share some of the aspects that Defendant argues are unfair
and, for this very reason, § 657-1.8 includes safeguards such as
the provision penalizing false claims and the certification
requirement.

See § 657-1.8(c), (d).

The Court CONCLUDES that,

since Defendant has made an insufficient showing that Section (b)
is unconstitutional as to all of its applications, his facial
challenge under the federal constitution fails.6

6

Similarly, Defendant makes no showing that Section (b)’s
sweep is illegitimate. See Wash. State Grange, 552 U.S. at 449.
The purpose of the act that enacted § 657-1.8, Act 68, was to
respond to the facts that: “child sexual abuse is an epidemic
that unfortunately is not adequately addressed because a vast
majority of child sexual abuse victims fail to report their
sexual assaults to the authorities”; “[s]tudies have estimated
that between sixty to eighty percent of child sexual abuse
victims withhold disclosure”; and “studies examining latency in
disclosure report an average delay of three to eighteen years.”
Conf. Comm. Rep. No. 44-14, April 24, 2014, slip copy, at 2.
Defendant does not attempt to show that the sweep of the act is
too broad for its purpose, or argue that there should be a
balancing of harms between the potential class of plaintiffs and
defendants. For these reasons, the Motion fails under this test
as well.
11

Further, Defendant’s argument, based on an analysis of
what he claims to be the only four Supreme Court cases addressing
revived statutes of limitations (and a single Ninth Circuit
case), does not change this result.7

He argues, in essence, that

the cases he analyzes stand for the proposition that statutes
that revive claims and cause special hardships or oppressive
effects on a class of defendants are presumptively facially
unconstitutional.

[Mem. in Supp. of Motion at 12.]

This reading

reverses the proper presumption and stretches these cases far
beyond their holdings.

Rather, together these cases (and others)

hold that, since statutes of limitations extinguish remedies and
not claims, it is proper for a legislature to set aside a statute
of limitations so long as it does not affect a vested right, such
as a right to real or personal property (or, at best, a vested
reliance interest).
The rule is most extensively discussed in Chase
Securities Corp. v. Donaldson, 325 U.S. 304 (1945), in which the

7

The four Supreme Court cases are Campbell v. Holt, 115
U.S. 620 (1885), Chase Securities Corp. v. Donaldson, 325 U.S.
304 (1945), International Union of Electrical, Radio & Machine
Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S.
229 (1976), and Plaut v. Spendthrift Farm, Inc., 514 U.S. 211
(1995). [Mem. in Supp. of Motion at 8-16, 19-24.] The Court
questions whether these are, in fact, the only Supreme Court
cases that address or are directly relevant to the issue. See,
e.g., Gange Lumber Co. v. Rowley, 326 U.S. 295, 298 (1945)
(addressing an amendment to the Washington Industrial Insurance
Act, which the defendant argued had “been applied retroactively
to revive a claim barred by the preexisting law, to its
substantial detriment” (footnote omitted)).
12

Supreme Court reconsidered and reaffirmed the holding of Campbell
v. Holt, 115 U.S. 620 (1885).8

Defendant quotes from these cases

selectively and claims that they support his interpretation of
the rule against retroactivity.

However, the Chase Court’s

description of the holding of Campbell is quite clear:
In Campbell v. Holt, supra, this Court held
that where lapse of time has not invested a party
with title to real or personal property, a state
legislature, consistently with the Fourteenth
Amendment, may repeal or extend a statute of
limitations, even after right of action is barred
thereby, restore to the plaintiff his remedy, and
divest the defendant of the statutory bar. This
has long stood as a statement of the law of the
Fourteenth Amendment, and we agree with the court
below that its holding is applicable here and
fatal to the contentions of appellant.
Chase, 325 U.S. at 311-12 (footnote omitted).
This rule, which was expressly upheld in Chase, shows
that it is not the revival of the claim that is repugnant to the
constitution, but the taking of vested property.

It has been

reiterated by both the Supreme Court and the Ninth Circuit.

See,

e.g., Stogner v. California, 539 U.S. 607, 632 (2003) (citing
Chase for the proposition that the extension of “an expired civil

8

The other two cases, Robbins & Myers and Plaut focus on
whether Congress intended the statutes at issue to be retroactive
and whether retroactive revival, in cases that had actually been
decided on statute of limitations grounds, impinged on the
constitutional right of federal courts to make final judgments.
Thus, neither are directly on point, and their short discussions
of Chase support the Court’s reading of that case and the rules
it articulates. See Robbins & Myers, 429 U.S. at 243-44; Plaut,
514 U.S. at 229.
13

limitations period can unconstitutionally infringe upon a ‘vested
right’” (emphasis in Stogner)); Robbins & Myers, 429 U.S. at 243
(explaining that Chase “states the applicable constitutional
test”); Cassirer v. Thyssen-Bornemisza Collection Found., 737
F.3d 613, 619-20 (9th Cir. 2013) (“Campbell applies only when the
property at issue had vested and had become the
defendant’s. . . .

Accordingly, we have explained that ‘[w]here

a lapse of time has not invested a party with title to real or
personal property, a state legislature may extend a lapsed
statute of limitations without violating the fourteenth
amendment, regardless of whether the effect is seen as creating
or reviving a barred claim.’” (some alterations in Cassirer)
(quoting Starks v. S.E. Rykoff Co., 673 F.2d 1106, 1109 (9th Cir.
1982)).
Defendant does not argue that Section (b) has taken a
vested right from him.

Nor can he.

The only thing that has been

taken from him by Section (b) is his immunity from lawsuits for
alleged child sex abuse.

And that immunity was created in § 657-

7 and § 657-13 by the same legislature that took it away with the
passage of Section (b).

Chase shows that this does not violate

Defendant’s due process rights and explains why:
Statutes of limitation find their
justification in necessity and convenience rather
than in logic. They represent expedients, rather
than principles. They are practical and pragmatic
devices to spare the courts from litigation of
stale claims, and the citizen from being put to
14

his defense after memories have faded, witnesses
have died or disappeared, and evidence has been
lost. Order of Railroad Telegraphers v. Railway
Express Agency, 321 U.S. 342, 349, 64 S. Ct. 582,
586, 88 L. Ed. 788. They are by definition
arbitrary, and their operation does not
discriminate between the just and the unjust
claim, or the voidable and unavoidable delay.
They have come into the law not through the
judicial process but through legislation. They
represent a public policy about the privilege to
litigate. Their shelter has never been regarded
as what now is called a “fundamental” right or
what used to be called a “natural” right of the
individual. He may, of course, have the
protection of the policy while it exists, but the
history of pleas of limitation shows them to be
good only by legislative grace and to be subject
to a relatively large degree of legislative
control.
This Court, in Campbell v. Holt, adopted as a
working hypothesis, as a matter of constitutional
law, the view that statutes of limitation go to
matters of remedy, not to destruction of
fundamental rights. . . .
Chase, 325 U.S. at 314 (footnote omitted) (emphases added); see
also Honda Motor Co., Ltd. v. Coons, 469 U.S. 1123, 1126 (1985)
(“[S]tatutes of limitations represent a public policy decision
about the privilege to litigate.

Their shelter has never been a

fundamental or natural right, but is provided only by legislative
grace, subject to a relatively large degree of legislative
control.”).

Chase allows the Hawai`i legislature to do exactly

what it did in passing Section (b): to use its “large degree of
legislative control” to change the statute of limitations for a

15

class of cases.9
At best, Chase may stand for the proposition that,
where the extension of a statute of limitations creates “special
hardships or oppressive effects” on a class of individuals
because they have relied on the original statute of limitations
in creating a course of conduct, a statute may be
unconstitutional.

See Chase, 325 U.S. at 315.

Defendant quotes

a short section of Chase to argue that Section (b) causes him,
and those similarly situated, to experience “special hardships or
oppressive effects” and, thus, violates his due process rights.
[Mem. in Supp. of Motion at 12-13.]

However, the complete

quotation provides for a much narrower exception:
The essential holding in Campbell v. Holt, so
far as it applies to this case, is sound and
should not be overruled. The Fourteenth Amendment
does not make an act of state legislation void
merely because it has some retrospective
operation. What it does forbid is taking of life,
liberty or property without due process of law.
Some rules of law probably could not be changed
retroactively without hardship and oppression, and
this whether wise or unwise in their origin.
Assuming that statutes of limitation like other
types of legislation could be so manipulated that
their retroactive effects would offend the
9

Another line of cases, described in Chase, limits this
rule insofar as some statutes that create new causes of action
expressly tie limitations periods to the substance of those
actions. In those cases, the running of the statutes may
actually cause the rights to vest. Chase, 325 U.S. at 312 n.8
(limiting William Danzer & Co. v. Gulf & Ship Island R. Co., 268
U.S. 633 (1925), and Davis v. Mills, 194 U.S. 451 (1904)).
However, this is not the situation before the Court, and
Defendant does not argue that it is.
16

Constitution, certainly it cannot be said that
lifting the bar of a statute of limitation so as
to restore a remedy lost through mere lapse of
time is per se an offense against the Fourteenth
Amendment. Nor has the appellant pointed out
special hardships or oppressive effects which
result from lifting the bar in this class of cases
with retrospective force. This is not a case
where appellant’s conduct would have been
different if the present rule had been known and
the change foreseen. It does not say, and could
hardly say, that it sold unregistered stock
depending on a statute of limitation for shelter
from liability. The nature of the defenses shows
that no course of action was undertaken by
appellant on the assumption that the old rule
would be continued. When the action was
commenced, it no doubt expected to be able to
defend by invoking Minnesota public policy that
lapse of time had closed the courts to the case,
and its legitimate hopes have been disappointed.
But the existence of the policy at the time the
action was commenced did not, under the
circumstances, give the appellant a constitutional
right against change of policy before final
adjudication. Whatever grievance appellant may
have at the change of policy to its disadvantage,
it had acquired no immunity from this suit that
has become a federal constitutional right. . . .
Chase, 325 U.S. at 315 (emphases added).

Rather than creating

the broad rule that Defendant advocates, the Supreme Court left
open the possibility that, in certain circumstances, a party
might successfully argue that its detrimental reliance on a
statute of limitations could, essentially, create a vested
interest.

Defendant does not provide any case that invalidated a

statute based on this standard, nor any facts that he or other
similarly situated individuals detrimentally relied on the former

17

statute of limitations.10

Thus, even if there were a plausible

constitutional argument based on detrimental reliance,
Defendant’s showing is insufficient here.

For all of these

reasons, the Court REJECTS Defendant’s federal constitutional
challenge and DENIES this part of the Motion.11
2.

Hawai`i State Constitutional Challenge
Defendant requests that this Court certify the question

of whether Section (b) violates the Due Process Clause of the
Hawai`i Constitution to the Hawai`i Supreme Court.

[Mem. in

Supp. of Motion at 8, 24.]
“This court may certify a question to the Hawaii
Supreme Court when it concerns ‘law of Hawaii that is
determinative of the cause and . . . there is no clear
controlling precedent in the Hawaii judicial decisions . . . .”

10

Nor can the Court imagine a set of facts that would allow
alleged child sex offenders to evade lawsuits by arguing that in
the ensuing years they had based their conduct on a short statute
of limitations.
11

Although not binding on this Court or on Hawai`i state
courts, this Court notes that its conclusion is consistent with
other decisions addressing statutes similar to Section (b), that
create open periods for filing previously-barred child sexual
abuse claims. See Melanie H. v. Doe 1, Civil No. 04-1596WQH(WMc), slip op. at 16, 19 (rejecting argument that California’s
SB 1779, which created a one-year open window for child sex abuse
claims, “unconstitutionally vitiate[d] vested property rights”
and, quoting Chase to reject facial due process challenge);
Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1252,
1258-59 (Del. 2011) (relying on Chase and Campbell and rejecting
the same arguments as to one-year window created by 10 Del. C.
§ 8145).
18

Saiki v. LaSalle Bank Nat’l Ass’n as Tr. for Structured Asset
Inv. Loan Trust Series 2003-BC2, Civil No. 10-00085 JMS/LEK, 2011
WL 601139, at *6 (D. Hawai`i Feb. 10, 2011) (quoting Haw. R. App.
P. 13(a)).

The court, however, should not certify questions when

the answer is reasonably clear and the court can, using its best
judgment, predict how the Hawai`i Supreme Court would decide the
issue.

See id. (citing Helfand v. Gerson, 105 F.3d 530, 537 (9th

Cir. 1997); Pai`Ohana v. United States, 875 F. Supp. 680, 700 (D.
Haw. 1995)).

Since the answer here is reasonably clear, the

Court denies the request.
The Hawai`i Supreme Court, “as a general matter, has
long adhered to the proposition that (1) legislative enactments
are presumptively constitutional; (2) a party challenging a
statutory scheme has the burden of showing unconstitutionality
beyond a reasonable doubt; and (3) the constitutional defect must
be clear, manifest, and unmistakable.”

In re Guardianship of

Carlsmith, 113 Hawai`i 236, 239, 151 P.3d 717, 720 (2007)
(citation and internal quotation marks omitted).

It has also

recognized that a “facial challenge, by nature, implicates no
facts in particular as it is purely a question of law.”

Jou v.

Dai-Tokyo Royal State Ins. Co., 116 Hawai`i 159, 166, 172 P.3d
471, 478 (2007) (citations omitted).

For the same reasons as

stated above, see supra Section II.B.1., the Court concludes that
it is reasonably clear that the Hawai`i Supreme Court would hold

19

that Defendant’s bare claims of unfairness are insufficient to
show unconstitutionality beyond a reasonable doubt, and that the
purported defect is “clear, manifest, and unmistakable.”
The Court’s conclusion is bolstered by Hawai`i Supreme
Court cases discussed by both Plaintiffs and Defendant, which
found statutes, that extended indefinitely statutes of
limitations on civil claims, constitutional.

See Mem. in Supp.

of Motion at 24-30; Mem. in Opp. at 4, 6-7.12

In particular, in

Roe v. Doe, 59 Haw. 259, 581 P.2d 310 (1978), the Hawai`i Supreme
Court rejected a due process challenge to an amendment to
Hawaii’s Uniform Parentage Act, Haw. Rev. Stat. Chapter 584, that
created a three-year window, similar to Section (b), which
revived all paternity suits barred by statutes of limitations.
The Hawai`i Supreme Court applied, inter alia, Campbell, Chase
and Robbins & Myers, and found that the defendant fathers had no
vested right to immunity from paternity suits.
265-69, 581 P.2d at 315-17.

Roe, 59 Haw. at

The Hawai`i Supreme Court explained:

12

The Court notes that, in addition to the Hawai`i Supreme
Court cases, Plaintiffs’ memorandum in opposition to the Motion
cites to numerous court orders that are not readily available.
Plaintiffs’ failure to attach copies of these orders to their
memorandum violates Rule LR7.6 of the Local Rules of Practice of
the United States District Court for the District of Hawai`i, and
the Court will not consider such orders in the future. See Local
Rule LR7.6 (“If citation is made to an authority that is not
easily available through Westlaw, Lexis/Nexis, or a comparably
accessible service, two (2) courtesy copies of the authority
shall be submitted to the court concurrently with the document
containing the citation.”).
20

We are unable to accept defendants’
proposition that the expiration of a statute of
limitations confers upon a defendant any vested
right or property interest which remains
undisturbed by subsequent legislative enactments.
The right to defeat an action by the statute of
limitations has never been regarded as a
fundamental or vested right.
Id. at 269, 581 P.2d at 316-17 (some citations omitted) (citing
Chase, 325 U.S. at 314, 65 S. Ct. 1137; Campbell, 115 U.S. at
628, 6 S. Ct. 209).
Further, the Hawai`i Supreme Court expressly rejected
the exact argument made by Defendant here: “In our opinion, the
legislative revival of claims that are even decades old is not,
of itself, unconstitutional per se.”
317.

Id. at 270, 581 P.2d at

Instead, and interpreting Chase consistent with this

Court’s reading that it creates a narrow detrimental reliance
exception, the Hawai`i Supreme Court laid out the following test
and rationale:
By enacting HRS § 584-7 in its current form,
the legislature effected a change in public policy
regarding the prosecution of stale claims.
However, this new policy, which greatly extends
the applicable period of limitations, can be
sustained only so long as the putative father’s
right to due process is not violated by the
retrospective application of the statute. See
Chase Securities, supra. Therefore, we prefer to
adopt a case-by-case approach to the question of
the constitutional permissibility of the revival
of paternity claims barred by the former statute
of limitations. If a putative father, named in a
paternity proceeding, were able to demonstrate
that he had acted in specific reliance on the bar
of the statute of limitations and that special
hardships or oppressive results would follow from
21

the lifting of the bar, retrospective application
of HRS § 584-7 might not be constitutionally
permissible. Absent such a demonstration of
direct reliance and resultant hardship, it would
not be possible to say that the defendant was
deprived of any constitutional right.
Roe, 59 Haw. at 270, 581 P.2d at 318.
Although it may be a closer question as to how the
Hawai`i Supreme Court would decide an as-applied challenge to
Section (b), that issue is not before the Court.

The Court FINDS

that it is reasonably clear that the Hawai`i Supreme Court would
not find Section (b) unconstitutional on its face, and thus
DENIES the Motion as to the facial challenge under the Hawai`i
Constitution.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion to
Dismiss First Amended Complaint for Failure to State a Claim, and
Motion for Determination of Insufficiency of Service of Process,
filed February 12, 2014, is HEREBY DENIED.
IT IS SO ORDERED.

22

DATED AT HONOLULU, HAWAII, August 29, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JOHN ROE NO. 8, ET AL. VS. JAY RAM, ETC., ET AL; CIVIL 14-00027
LEK-RLP; ORDER DENYING DEFENDANT’S MOTION TO DISMISS FIRST
AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, AND MOTION FOR
DETERMINATION OF INSUFFICIENCY OF SERVICE OF PROCESS

23