Mather v. First Hawaiian Bank et al

Filing 48

ORDER DENYING MOTION TO FILE AMENDED COMPLAINT; ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY re 33 , 36 - Signed by JUDGE SUSAN OKI MOLLWAY on 8/22/2014. "The court denies Mather's motion of July 11, 2014 , seeking leave to file the proposed First Amended Complaint attached thereto. The court denies the motion without a hearing pursuant to Local Rule 7.2(d). The court also denies Mather's motion of July 15, 2014, seeking to compel discovery, as there is no operative complaint in this case at this time. Mather may file a motion seeking leave to file a new First Amended Complaint in compliance with this order no later than September 12, 2014." (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). Diane E. Mather served by first class mail at the address of record on August 22, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DIANE E. MATHER, individually
and as trustee of the
HANA2008 LIVING TRUST and the
VIOLET BLACK TRUST,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
FIRST HAWAIIAN BANK, a Hawaii )
corporation,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 14-00091 SOM/RLP
ORDER DENYING MOTION TO FILE
AMENDED COMPLAINT; ORDER
DENYING PLAINTIFF’S MOTION TO
COMPEL DISCOVERY

ORDER DENYING MOTION TO FILE AMENDED COMPLAINT;
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY
I.

INTRODUCTION.
Defendant First Hawaiian Bank lent Plaintiff Diane E.

Mather $686,000 and extended to her a line of credit of up to
$20,000.

These loans were secured by mortgages on property

located on Dole Street, in Honolulu, Hawaii.

When Mather

defaulted on these loans, First Hawaiian Bank filed a state-court
foreclosure action.

The state court granted summary judgment in

favor of First Hawaiian Bank, issued a decree of foreclosure, and
certified its ruling pursuant to Rule 54(b) of the Hawaii Rules
of Civil Procedure.

A court-appointed commissioner sold the Dole

Street property at public auction, and the state court issued a
deficiency judgment against Mather.

Mather did not appeal any of

the state court’s rulings or judgments.

Mather now seeks leave to file a First Amended
Complaint in which she attempts to undo and unwind the statecourt orders and judgments.

She also attempts to add claims

against the attorneys representing First Hawaiian Bank for
actions taken in the foreclosure proceedings.

Because the

proposed First Amended Complaint seeks to assert claims that are
barred by the Rooker-Feldman doctrine and the principles of res
judicata and collateral estoppel, and because the proposed First
Amended Complaint clearly violates Rule 8(a) of the Federal Rules
of Civil Procedure, Mather’s motion seeking leave to file the
proposed complaint is denied.
Because there is no operative complaint in this case,
Mather may not seek discovery from Defendant(s) at this time.
Her motion of July 15, 2014, which seeks to compel such
discovery, is therefore denied.
II.

STANDARD.
Rule 15(a) of the Federal Rules of Civil Procedure

states that leave to amend a complaint should be freely given
“when justice so requires.”

Fed. R. Civ. P. 15(a)(2).

In

determining whether to allow amendment of a complaint, courts
consider factors such as: whether the amendment will cause undue
delay; whether the movant has demonstrated bad faith or a
dilatory motive; whether the amendment will unduly prejudice the
opposing party; whether amendment is futile; and whether the

2

movant has repeatedly failed to cure deficiencies.
Davis, 371 U.S. 178, 182 (1962).

See Foman v.

The Ninth Circuit has noted

that, of these factors, “prejudice to the opposing party carries
the greatest weight.”

Sonoma County Ass’n of Retired Employees

v. Sonoma County, 708 F.3d 1109, 1117 (9th Cir. 2013) (quoting
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003)).
III.

BACKGROUND FACTS.
Proceeding pro se, Mather proposes a First Amended

Complaint that is prolix.

Its many irrelevant allegations cause

it to cover 69 pages.
The factual background for this case is set forth in
this court’s order of June 24, 2014, and is incorporated here by
reference.

In summary, on or about September 25, 2008, First

Hawaiian Bank lent Mather $686,000.

On or about November 5,

2008, First Hawaiian Bank extended a line of credit to Mather of
up to $20,000.

Both loans were secured by mortgages on property

located on Dole Street in Honolulu.
Instead of making payments in accordance with her
obligations, Mather sought to escape those obligations by
recording a Satisfaction of Mortgage and a Release and Discharge
of Mortgage Lien in the State of Hawaii Bureau of Conveyances.
This followed Mather’s recording of a Notice of Dishonor and
Non-Response in the Bureau of Conveyances in January 2012 that

3

claimed that, if First Hawaiian Bank failed to respond to the
Notice within three days, the $686,000 note (along with another
note for a separate $224,000 loan) would be null and void and
that First Hawaiian Bank would instead owe Mather $1,459,703.35.
First Hawaiian Bank filed a special proceeding in state court to
expunge those documents.

Mather eventually stipulated to the

expunging of the instruments she had recorded.

See Stipulated

Order to Expunge Various Instruments, S.P. No. 12-1-0240 KKS
(Haw. Cir. Ct. Aug. 30, 2012), ECF No. 9-9, PageID # 392.
Mather says that, on or about November 15, 2012, she
sent an “Affidavit of Diane Mather Affidavit of Specific Negative
Treatment” to First Hawaiian Bank’s attorney, David Y. Nakashima
of the Watanabe Ing, LLP, law firm.
# 1111.

See ECF No. 33-9, PageID

In this document, Mather “denies” that Nakashima is

First Hawaiian Bank’s attorney, denies having obtained a loan
from First Hawaiian Bank, denies having mortgages on the Dole
Street property, and denies being in default.
1111-12.

Id., PageId #s

The document further claims that First Hawaiian Bank

owes Mather $3,948 for her fees and states that, if First
Hawaiian Bank does not respond to it within 10 days, those fees
will be due and payable to Mather.

Id., PageID # 1113.

On or about December 6, 2012, First Hawaiian Bank filed
a complaint in state court to foreclose on the mortgages,
alleging that Mather was in default on her loans.

4

On August 23,

2013, the state court issued its Findings of Fact, Conclusions of
Law and Order Granting Plaintiff’s Motion for Summary Judgment as
to All Claims and All Parties, Interlocutory Decree of
Foreclosure and Order of Sale.

See Civ. No. 12-1-3080 (Haw. Cir.

Ct. Aug. 23, 2013), ECF No. 9-11, PageID # 400 (“Interlocutory
Decree of Foreclosure”).

The state court determined that Mather

had defaulted on the loans and that First Hawaiian Bank was
entitled to foreclose on its security interest.
# 408.

Id., PageID

The state court ordered the Dole Street property sold via

a public auction by a court-appointed commissioner.
# 410.

Id., PageID

The state court further ruled that, pursuant to Rule

54(b) of the Hawaii Rules of Civil Procedure, the Interlocutory
Decree of Foreclosure “shall be considered as a final order and
judgment and there shall be no just reason for delay.”

Id.,

PageID # 413; see also Judgment re: Findings of Fact, Conclusions
of Law and Order Granting Plaintiff’s Motion for Summary Judgment
as to All Claims and All Parties, Interlocutory Decree of
Foreclosure and Order of Sale, Civ. No. 12-1-3080 (Haw. Cir. Ct.
Aug. 23, 2013), ECF No. 9-12.

Mather did not appeal the order or

judgment, both of which were entered before she filed the
Complaint in this action on February 25, 2014.
Mather filed a Chapter 11 bankruptcy petition.

On

December 2, 2013, the Bankruptcy Court dismissed that petition
because Mather had not filed required documents.

5

See Order

Dismissing Case with 180-Day Bar to Refiling for Failure to File
Required Documents, ECF No. 9-13, PageID # 420.
The Dole Street property was sold at public auction to
First Hawaiian Bank, and the state court confirmed the sale.

See

Order Granting Plaintiff’s Motion for Confirmation of Sale,
Directing Distribution of Proceeds, for Deficiency Judgment, Writ
of Possession and Disposal or Personal Property, Civ. No. 12-13080 (Haw. Cir. Ct. Mar. 21, 2014), ECF No. 21-3, and Judgment
re: Order Granting Plaintiff’s Motion for Confirmation of Sale,
Directing Distribution of Proceeds, for Deficiency Judgment, Writ
of Possession and Disposal or Personal Property, Civ. No. 12-13080 (Haw. Cir. Ct. Mar. 21, 2014), ECF No. 21-4.
A deficiency judgment in the amounts of $279,693.96 and
$26,414.29 plus interest was entered against Mather on May 19,
2014.

ECF No. 33-15, PageID #s 1240-42.
Mather did not appeal any of the state court

foreclosure proceeding orders and/or judgments.
IV.

ANALYSIS.
A.

The Proposed First Amended Complaint Violates Rule
8(a)(2) of the Federal Rules of Civil Procedure.

Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires a complaint to contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Mather’s proposed First Amended Complaint violates Rule 8(a)(2),
as it is neither a short nor a plain statement of her claims.
6

Instead, it is 69 pages of irrelevant statements and improper
challenges to the state-court foreclosure proceeding.

For that

reason alone, the court denies Mather’s request for leave to file
the proposed complaint.

See McHenry v. Renne, 84 F.3d 1172,

1178-80 (9th Cir. 1996) (affirming dismissal of complaint that
violated Rule 8).
In McHenry, the Ninth Circuit discussed several reasons
for dismissing complaints that violate Rule 8:
If the pleading contains prolix evidentiary
averments, largely irrelevant or of slight
relevance, rather than clear and concise
averments stating which defendants are liable
to plaintiffs for which wrongs, based on the
evidence, then this purpose is defeated.
Only by months or years of discovery and
motions can each defendant find out what he
is being sued for. The expense and burden of
such litigation promotes settlements based on
the anticipated litigation expense rather
than protecting immunity from suit.
84 F.3d at 1178.

Of additional concern is the effect that a

prolix complaint has on the court and the parties:
Prolix, confusing complaints such as the ones
plaintiffs filed in this case impose unfair
burdens on litigants and judges. As a
practical matter, the judge and opposing
counsel, in order to perform their
responsibilities, cannot use a complaint such
as the one plaintiffs filed, and must prepare
outlines to determine who is being sued for
what. Defendants are then put at risk that
their outline differs from the judge’s, that
plaintiffs will surprise them with something
new at trial which they reasonably did not
understand to be in the case at all, and that
res judicata effects of settlement or
judgment will be different from what they
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reasonably expected. “[T]he rights of the
defendants to be free from costly and
harassing litigation must be considered.”
Id. at 1179-80 (quoting Von Poppenheim v. Portland Boxing &
Wrestling Comm’n, 442 F.3d 1047, 1054 (9th Cir. 1971)).

The

Ninth Circuit further explained:
The judge wastes half a day in chambers
preparing the “short and plain statement”
which Rule 8 obligated plaintiffs to submit.
He then must manage the litigation without
knowing what claims are made against whom.
This leads to discovery disputes and lengthy
trials, prejudicing litigants in other
case[s] who follow the rules, as well as
defendants in the case in which the prolix
pleading is filed.
Id. at 1180.
All of the Ninth Circuit’s concerns in McHenry are
applicable to the proposed First Amended Complaint Mather seeks
to file.

This court has wasted valuable time attempting to

understand the claims in this case.

Like the pleading in

McHenry, Mather’s proposed complaint “is argumentative, prolix,
replete with redundancy, and largely irrelevant.”

Id. at 1177.

The court’s time could have easily been spent on other cases.
Forcing First Hawaiian Bank and its attorneys to answer and
litigate the proposed complaint would be unduly burdensome under
the circumstances, especially because Mather cannot viably assert
many of the claims she seeks to make.

8

B.

The Proposed Amended Complaint Would Be Futile.
1.

Mather Cannot Relitigate Claims As If They
Have Not Been Dismissed.

Even if the court examines the claims Mather attempts
to assert, an amendment is futile.

As the court ruled in its

order of June 24, 2014, Mather’s claims for damages under the
Truth in Lending Act (“TILA”) are time-barred.

Mather may not

now simply ignore this court’s ruling and assert claims for
damages under TILA.
Cause of Action.

See Proposed First Amended Complaint, Tenth

As the Ninth Circuit noted in Rebel Oil Co. v.

Atlantic Richfield Co., 146 F.3d 1088, 1093 (9th Cir. 1998), the
“law of the case” doctrine generally precludes a court from
reconsidering an issue that has already been decided by the same
court, or a higher court in the identical case.
2.

Mather May Not Appeal the Orders and Judgment
of the State Court to This Court, or
Relitigate Those Matters.

In the order dismissing the original Complaint, the
court expressed concern that, in attempting to amend her
Complaint, Mather not improperly attempt to appeal the statecourt foreclosure orders and judgments to this court in violation
of the Rooker-Feldman doctrine.

See D.C. Court of Appeals v.

Feldman, 460 U.S. 462, 482-86 (1983); Rooker v. Fid. Trust Co.,
263 U.S. 413, 415-16 (1923).

The court was also concerned about

the effect of issue and/or claim preclusion.

See Santos v. State

of Hawaii, 64 Haw. 648, 651-52, 646 P.2d 962, 965 (1982) (noting
9

that issue and claim preclusion prevent parties from relitigating
claims or issues that have already been decided by a competent
tribunal).

The court’s concerns were well-founded.
a.

Rooker-Feldman.

Under the Rooker-Feldman doctrine, federal courts are
divested of jurisdiction to conduct a direct review of state
court judgments even when a federal question is presented.
Bennett v. Yoshina, 140 F.3d 1218, 1223 (9th Cir. 1998.

See

Accord

Mackay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987) (“Federal
district courts, as courts of original jurisdiction, may not
serve as appellate tribunals to review errors allegedly committed
by state courts”).

The Rooker-Feldman doctrine is confined to

cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review
and rejection of those judgments.

Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 544 U.S. 280, 284 (2005).

Jurisdiction is

lacking even if a state court’s decision is challenged as
unconstitutional.

Feldman, 460 U.S. at 486; Branson v. Nott, 62

F.3d 287, 291 (9th Cir.1995) (“As courts of original
jurisdiction, federal district courts have no authority to review
the final determinations of a state court in judicial
proceedings.

This is true even when the challenge to a state

court decision involves federal constitutional issues”)

10

(citations omitted).

Litigants who believe that a state judicial

proceeding has violated their constitutional rights must appeal
that decision through their state courts and then seek review in
the Supreme Court.

See Feldman, 460 U.S. 482-483; Bennett, 140

F.3d at 1223 (noting that the rationale behind the Rooker-Feldman
doctrine “is that the only federal court with the power to hear
appeals from state courts is the United States Supreme Court”).
The Rooker-Feldman doctrine does not apply to a
“general constitutional challenge”--one that does not require
review of a final state court decision in a particular case.

See

Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1029 (9th
Cir. 2001).

The distinction between a permissible general

constitutional challenge and an impermissible appeal of a state
court determination may be subtle and difficult to make.

If the

federal constitutional claims presented to the district court are
“inextricably intertwined” with the state court’s judgment,
then a plaintiff is essentially asking this court to review the
state court's decision, which this court may not do.
b.

Id.

Issue and Claim Preclusion.

The preclusive effect in this court of a Hawaii state
court decision is determined by Hawaii law.

Pedrina v. Chun, 97

F.3d 1296, 1301 (9th Cir. 1996) (“In determining whether a prior
state court action bars a subsequent federal action, the federal
court must look to the res judicata principles of the state court

11

in which the judgment was rendered”); In re Russell, 76 F.3d 242,
244 (9th Cir. 1995) (“Because the underlying judgment was
rendered in state court, we must apply California's res judicata
and collateral estoppel principles”).
Under Hawaii law, the doctrine of res judicata applies
when: 1) the claim asserted in the action in question was or
could have been asserted in the prior action, 2) the parties in
the present action are identical to, or in privity with, the
parties in the prior action, and 3) a final judgment on the
merits was rendered in the prior action.

Pedrina, 97 F.3d at

1301 (citing Santos v. State of Hawaii, 64 Haw. 648, 646 P.2d
962, 966 (1982)); Morneau v. Stark Enters., Ltd., 56 Haw. 420,
422-23, 539 P.2d 472, 474-75 (1975) (the “judgment of a court of
competent jurisdiction is a bar to a new action in any court
between the same parties or their privies concerning the same
subject matter, and precludes the relitigation, not only of the
issues which were actually litigated in the first action, but
also of all grounds of claim and defense which might have been
properly litigated in the first action but were not litigated or
decided”).
Under Hawaii law, the doctrine of collateral estoppel
bars relitigation of an issue when: (1) the issue decided in the
prior adjudication is identical to the one presented in the
action in question; (2) there is a final judgment on the merits;

12

(3) the issue decided in the prior adjudication was essential to
the final judgment; and (4) the party against whom collateral
estoppel is asserted was a party or in privity with a party to
the prior adjudication.

Dorrance v. Lee, 90 Haw. 143, 149, 976

P.2d 904, 910 (1999).
Res judicata and collateral estoppel prevent a
multiplicity of suits, avert inconsistent results, and provide a
limit to litigation by promoting finality and judicial economy.
Dorrance, 90 Haw. at 148-49, 976 P.2d at 909-10.

Both doctrines

serve to relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudications.
They therefore further the interests of litigants, the judicial
system, and society by bringing an end to litigation when matters
have already been tried and decided on the merits.

See Kauhane

v. Acutron Co., 71 Haw. 458, 463, 795 P.2d 276, 278-79 (1990).
The doctrines permit every litigant to have an opportunity to try
its case on the merits, but they limit the litigant to one such
opportunity.

Id.

Accord Pedrina v. Chun, 906 F. Supp. 1377,

1398 (D. Haw. 1995), aff’d, 97 F.3d 1296 (9th Cir. 1996) (stating
that the res judicata doctrine protects the integrity of the
courts and promotes reliance on judicial pronouncements by
requiring that the decisions and findings of the courts be
accepted as undeniable legal truths).

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3.

Many of the Claims in the Proposed First
Amended Complaint Ask This Court to Sit as An
Appellate Court Over the State-Court
Proceedings and/or Raise Issues that Were or
Could Have Been Decided in Those Proceedings.

As discussed above, Mather may not ask this court to
review the orders and judgments in the state-court foreclosure
proceedings.

Nor may she now assert claims that either were or

should have been asserted and decided in those proceedings.
Thus, Mather may not challenge in this case First
Hawaiian Bank’s standing to foreclose on her loans in the statecourt proceedings (First Cause of action).

Any such assertion

should have been raised in the state court and appealed through
the state-court appellate process.

The state court necessarily

determined that First Hawaiian Bank had such standing when it
enforced the loan documents.

The Rooker-Feldman doctrine

prevents this court from sitting as an appellate court over that
decision.
Mather is also barred from asserting in this court her
claims for fraudulent concealment (Second Cause of Action), for a
violation of section 480-2 of Hawaii Revised Statutes (Eleventh
Cause of Action), and for an “equitable accounting” (Thirteenth
Cause of Action).

First, Mather’s claims that First Hawaiian

Bank fraudulently concealed that it was not the owner and holder
of her notes and mortgages and therefore had no legal right to
enforce those documents is barred by the state court’s
14

determination that First Hawaiian Bank was indeed the owner and
holder of her mortgages.

Mather may not appeal that

determination to this court.

Any such challenge should have been

made in the state court proceedings and/or appealed through the
state-court appellate system.
Second, Mather’s claim that First Hawaiian Bank
committed fraud in the foreclosure proceedings by representing
that it owned the notes and mortgages (Third Cause of Action) is
a claim that should have been raised in state-court proceedings.
This court cannot sit as an appellate court over that claim.
Mather now seeks to assert that First Hawaiian Bank
slandered her title to the Dole Street property (Sixth Cause of
action), that she is entitled to quiet title with respect to the
Dole Street property (Seventh Cause of Action), and that she is
entitled to a declaration that she owns the Dole Street property
because the notes and mortgages at issue were invalid (Eighth
Cause of Action).

Each of those claims would have this court

reexamine whether First Hawaiian Bank was entitled to foreclose
on the notes and mortgage.

This court cannot conduct such a

reexamination.
Mather is collaterally estopped from arguing that,
based on misrepresentations First Hawaiian Bank’s attorneys
allegedly made to the state court in the foreclosure proceedings
about First Hawaiian Bank’s ownership of her loans, the attorneys

15

violated the Fair Debt Collection Practices Act (part of the
Fourth Cause of Action) or that the attorneys and First Hawaiian
Bank violated the Racketeer Influenced and Corrupt Organizations
Act (Fifth Cause of Action).

In foreclosing on the mortgages

securing her loans, the state court necessarily determined that
First Hawaiian Bank owned the loans.

Mather may not now attempt

to assert claims based on her contention that First Hawaiian
Bank’s attorneys submitted allegedly false statements to the
court indicating that First Hawaiian Bank owned her loans or that
the attorneys and the bank had no right to foreclose on the
mortgages securing the loans.
In the Twelfth Cause of Action, Mather complains of
First Hawaiian Bank’s attempts to collect on its judgements by
obtaining garnishment orders in state court.

Again, Mather must

appeal those orders through the state’s appellate system, even if
she believes that her federal constitutional rights have been
violated by the state court’s issuance of the orders.
4.

Mather Cannot Assert Her Proposed Fair Debt
Collection Practices Act Claim.

The Fourth Cause of Action asserts violations of the
Fair Debt Collection Practices Act by First Hawaiian Bank, the
entity that the state court determined owned her note and
mortgage, as well as its attorneys, the law firm of Watanabe Ing.
The FDCPA provides damages to “any person” who suffers
“actual damage” at the hands of a “debt collector”:
16

Except as otherwise provided by this section,
any debt collector who fails to comply with
any provision of this subchapter with respect
to any person is liable to such person in an
amount equal to the sum of-(1) any actual damage sustained by such
person as a result of such failure; [or]
(2)(A) in the case of any action by an
individual, such additional damages as the
court may allow, but not exceeding $1,000[.]
15 U.S.C. § 1692k(a).
The FDCPA defines “debt collector” as:
any person who uses any instrumentality of
interstate commerce or the mails in any
business the principal purpose of which is
the collection of debts, or who regularly
collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to
be owed or due another.
See 15 U.S.C.A. § 1692a(6).
A “debt collector” does not include “any person
collecting or attempting to collect any debt owed or due or
asserted to be owed or due another to the extent such activity .
. . (ii) concerns a debt which was originated with such person.”
15 U.S.C. § 1692a(6)(F)(ii); see also De Dios v. Int’l Realty &
Invs., 641 F.3d 1071, 1074 (9th Cir. 2011) (noting that the FDCPA
excludes from the definition of “debt collector” any “person who
originated the debt, such as a creditor to whom the debt was
originally owed”); Rowe v. Educ. Credit Mgm’t Corp., 559 F.3d
1028, 1031 (9th Cir. 2009) (stating that “a ‘creditor’ is not a
‘debt collector’ under the FDCPA”); Jonak v. John Hancock Mut.
17

Life Ins. Co., 629 F. Supp. 90, 94 (D. Neb. 1985) (noting that
the definition of “debt collector” “excludes both creditors
seeking to collect their own debts and the officers and employees
of creditors collecting debts for the creditors”).

Because First

Hawaiian Bank was the original lender and owner of Mather’s loans
during the foreclosure proceedings, it cannot have been a debt
collector for purposes of the Fair Debt Collection Practices Act.
Accordingly, any claim under that act against First Hawaiian Bank
would be futile.
Mather may be asserting that Watanabe Ing violated the
Fair Debt Collection Practice Act when it did not cease
collection efforts and verify the debt after she sent it a
written communication to that effect.

In Paragraph 90, she makes

such an assertion with respect to First Hawaiian Bank.

But the

proposed First Amended Complaint lacks facts explaining such a
claim.

At best, Mather references the “Affidavit of Specific

Negative Treatment” that she sent to Watanabe Ing in November
2012.

But it is not clear whether this document qualifies as a

request that Watanabe Ing verify the debt.

The court does not

allow this unclear claim to proceed as alleged.
5.

Mather Cannot Assert Her Proposed Real Estate
Settlement Procedures Act Claim.

Mather’s proposed Ninth Cause of Action asserts a
violation of the Real Estate Settlement Procedures Act (“RESPA”).
To the extent Mather claims that First Hawaiian Bank violated 12
18

U.S.C. § 2605 by failing to disclose facts when the bank made
loans to her in 2008, that claim is time-barred.
§ 2614.

12 U.S.C.

To the extent the RESPA claim is based on an alleged

failure to respond to a qualified written request, the claim is
confusing given the prolixity of the proposed complaint.

It

appears that, in October 2012, Mather sent First Hawaiian Bank a
voluminous document, ECF No. 33-6, in which she essentially asked
for discovery (PageID #s 955-59), offered a $661,000 note in
satisfaction of her loan obligations (PageID #s 962-69), sent a
mortgage satisfaction agreement in which she stated that First
Hawaiian Bank’s failure to accept the agreement within three days
would be deemed to be acceptance of it and that any breach of it
would entitle her to liquidated damages of three times the value
of the proposed note (PageID #s 970-78), and claimed that First
Hawaiian Bank owed her $1,983,000 in liquidated damages (PageID
#s 981).

Because the factual basis of the RESPA claim asserted

in the proposed First Amended Complaint is unclear, the court
will not allow that claim to proceed as alleged.

Mather may well

be able to plead such a claim, but she does not currently state a
claim on which relief may be granted.
C.

Mather is Granted Leave to File Another Motion
Seeking Leave to File a First Amended Complaint.

When this court dismisses a complaint, it normally
gives a plaintiff a chance to file an amended complaint.

Given

Mather’s history, the court is concerned that she may be abusing
19

the court process.

Instead of filing a new version of a First

Amended Complaint, Mather may file another motion seeking leave
to file a new proposed First Amended Complaint.

She must attach

to the motion her new proposed First Amended Complaint and must
file the motion no later than September 12, 2014.

If Mather

fails to timely file that motion, the Clerk of Court is directed
to automatically close this case.

First Hawaiian Bank and/or

Watanabe Ing shall have no duty to respond to the motion or to
any proposed complaint or to answer any discovery request until
this court orders a response.

When the court receives the new

motion with the new proposed complaint, the court will schedule
and hold a telephonic status conference to discuss how to
proceed.
Mather must follow court rules with respect to any new
proposed complaint.

Violations of these rules and conditions may

result in the denial of any motion seeking leave to file a new
First Amended Complaint.
1.

The proposed First Amended Complaint must be

complete in itself; it may not incorporate by reference anything
previously filed with this court.
2.

The proposed First Amended Complaint may not seek

to relitigate matters the merits of which have been ruled on by
this court.

Those matters are law of the case.

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3.

The proposed First Amended Complaint may not

assert claims based on First Hawaiian Bank’s allegedly improper
foreclosure on the mortgages on the Dole Street property.

In

other words, if a claim is based on a fact or an issue already
decided in the state-court foreclosure proceedings, Mather may
not seek to relitigate those facts or issues, and may not claim
that the foreclosure proceedings were wrong or improper.

Any

such attempt is barred by the Rooker-Feldman doctrine and/or the
doctrines of res judicata and collateral estoppel.
4.

The proposed First Amended Complaint must comply

with Rule 8(a)(2) of the Federal Rules of Civil Procedure.

That

is, it should be short and should state in simple language what
First Hawaiian Bank and or Watanabe Ing or any other Defendant
allegedly did and what statute, law, or duty was supposedly
breached.

Mather should focus less on stating legal conclusions

and more on alleging facts as to what each Defendant allegedly
did and why it is liable for its specific actions.

To that end,

immediately after the heading identifying each cause of action by
number and subject matter, the proposed First Amended Complaint
must contain a brief factual summary (50 words or less) of the
facts that the specific cause of action is based on.
First Cause of Action.

Violation of X statute.

(Example:

“X statute

required Defendant 1 to provide Plaintiff with information
requested by Plaintiff within 2 weeks, but, despite the passage

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of a year since Plaintiff’s request, Defendant 1 has not provided
the information.”)
5.

If Mather attaches material to the proposed First

Amended Complaint, she must ensure that the attachments are
relevant to her claims.

In other words, if Mather is claiming

that she sent First Hawaiian Bank a “qualified written request”
for purposes of RESPA and she attaches documentation supporting
that claim, the documents should be limited to the “qualified
written request.”

Alternatively, if Mather refers to a lengthy

document, she should describe which part of the document is
relevant to her claim, not just attach the lengthy document and
force the court and Defendants to guess which part she is
referring to.
6.

The court suggests that Mather refrain from

“cutting and pasting” from any previously filed document, as
those documents have not properly alleged claims.
7.

If Mather asserts fraud-based claims, she is

reminded of the heightened pleading standard of Rule 9(b) of the
Federal Rules of Civil Procedure.

That is, fraud must be pled

with particularity.
8.

Mather is further reminded that, by presenting a

proposed First Amended Complaint to the court, she is certifying
under Rule 11(b) of the Federal Rules of Civil Procedure that it
is not being presented for an improper purpose and that the

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claims therein are not frivolous and will be supported by facts.
If Mather violates Rule 11 or otherwise proceeds in bad faith,
she may be subject to sanctions, such as a requirement that she
pay a fine.
V.

CONCLUSION.
The court denies Mather’s motion of July 11, 2014,

seeking leave to file the proposed First Amended Complaint
attached thereto.

The court denies the motion without a hearing

pursuant to Local Rule 7.2(d).

The court also denies Mather’s

motion of July 15, 2014, seeking to compel discovery, as there is
no operative complaint in this case at this time.

Mather may

file a motion seeking leave to file a new First Amended Complaint
in compliance with this order no later than September 12, 2014.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 22, 2014.

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

Mather, et al. v. First Hawaiian Bank, Civil No. 14-00091 SOM/RLP; ORDER
DENYING MOTION TO FILE AMENDED COMPLAINT; ORDER DENYING PLAINTIFF'S MOTION TO
COMPEL DISCOVERY

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