Shinn v. EWM Enterprises, LP et al

Filing 4

ORDER DISMISSING 1 COMPLAINT AND DENYING AS MOOT PLAINTIFF'S 2 APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS. Signed by JUDGE DERRICK K. WATSON on 5/8/2014. ~ The Court DISMISSES the complaint and DENIES Plainti ff's Application as moot. Plaintiff is GRANTED LEAVE TO AMEND his Application and complaint as set forth in this Order. By June 6, 2014, Plaintiff must: 1. File the first amended complaint; and 2. Either file an amended application to proceed in forma pauperis or pay the filing fee. Plaintiff is CAUTIONED that failure to properly comply with both of these requirements by June 6, 2014 will result in automatic dismissal of this action. ** Motions terminated: 2 MOTION for Leave to Pro ceed in forma pauperis filed by David Shinn. (ecs, )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 HAWAI`I

CIVIL NO. 14-00208 DKW-KSC

DAVID SHINN
Plaintiff,
vs.
EWM ENTERPRISES, LP.
President: Ernest W. Moody, et al.

ORDER DISMISSING COMPLAINT
AND DENYING AS MOOT
PLAINTIFF’S APPLICATION
TO PROCEED WITHOUT
PREPAYMENT OF FEES OR
COSTS

Defendants.

ORDER DISMISSING COMPLAINT AND
DENYING AS MOOT PLAINTIFF’S APPLICATION
TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS
INTRODUCTION
On May 1, 2014, Plaintiff pro se David Shinn filed a complaint and
Application to Proceed in District Court Without Prepaying Fees or Costs
(“Application”). Plaintiff’s complaint asserts claims against EWM Enterprises, LP
and EWM Investments, LLC (collectively “EWM”), several attorneys and the law
firm Carlsmith Ball, LLP (“Carlsmith Defendants”), C. Brewer and Co., Mauna Kea
Agribusiness Co., Hutchison Sugar Plantation Co., Hawaii Pacific Brokers, LLC,
and several individuals associated with these entities. Although the complaint is
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not entirely clear, Plaintiff appears to allege claims arising under state law and
relating to real property on the Island of Hawai‘i. Because the Court does not have
subject matter jurisdiction over Plaintiff’s claims as currently alleged, the Court
DISMISSES Plaintiff’s complaint with leave to amend, and DENIES Plaintiff’s
Application as moot. Plaintiff is GRANTED until June 6, 2014 to file an amended
complaint.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e), the Court subjects every in forma
pauperis proceeding to mandatory screening and orders the dismissal of the case if it
is “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or
“seeks monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (2000) (stating that
28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss
an in forma pauperis complaint that fails to state a claim).
Plaintiff is proceeding pro se, and, therefore, the Court liberally
construes his pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987)
(“The Supreme Court has instructed the federal courts to liberally construe the
‘inartful pleading’ of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364,
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365 (1982) (per curiam)). The Court also recognizes that “[u]nless it is absolutely
clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice
of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the
action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). Nevertheless,
the Court may dismiss a complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) on its own motion. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991
(9th Cir. 1987) (“A trial court may dismiss a claim sua sponte under [Rule] 12(b)(6).
Such a dismissal may be made without notice where the claimant cannot possibly
win relief.”); Ricotta v. Cal., 4 F. Supp. 2d 961, 968 n.7 (S.D. Cal. 1998) (“The
Court can dismiss a claim sua sponte for a Defendant who has not filed a motion to
dismiss under Fed. R. Civ. P. 12(b)(6).”). Claims may also be dismissed sua sponte
where the Court does not have federal subject matter jurisdiction. Franklin v.
Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984); see also Fed. R. Civ. P. 12(h)(3);
Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 593 (2004) (“[I]t is the
obligation of both the district court and counsel to be alert to jurisdictional
requirements.”).
DISCUSSION
Upon review of the complaint and documents attached thereto, the
Court finds that Plaintiff fails to establish this Court’s subject matter jurisdiction to
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hear this dispute. Plaintiff states that he seeks “adjudication regarding white collar
claim submitted to a non-responsive Circuit Court of the Third Circuit of the State of
Hawaii.” Complaint at 1. Plaintiff alleges that EWM, represented by the
Carlsmith Defendants, “is in possession, ‘white collar claim’. . . and [has] no right
title or interest in and to the property, defendant’s claim of absolute and exclusive
title is misplaced and improper.” Id. The property is identified as TMK No. (3)
9-5-008-001 (POR) Naalehu Ranch, 95-1178 Kaalualu Rd, Naalehu, Hawaii 96722.
Id. at 2. Plaintiff contests that EWM is the lawful owner of the property, and
appears to challenge a final judgment to that effect issued in state court proceeding
Civil No. 08-1-0426 (“state court case”). Plaintiff claims that he has rights in the
“subject property for [the] purpose of organic evolution farming, and for use for
cultural and religious purposes, which rights and entitlements have been continually
sustained by the Supreme Court of the United States via the royal patent 6882 HELU
9971.” Id. at 3.

Plaintiff seeks an order “declaring that Defendant[] has no right,

title or interest in and to the property,” ejectment, removal of fencing and signage
around the property, and an order requiring Defendants and two state Circuit Court
judges “to appear for trial or other deliberations on this matter.” Id. at 3-4.
Subject matter jurisdiction is conferred on federal courts either through
federal question jurisdiction pursuant to 28 U.S.C. § 1331 or through diversity
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jurisdiction pursuant to 28 U.S.C. § 1332. Peralta v. Hispanic Bus., Inc., 419 F.3d
1064, 1068 (9th Cir. 2005). A plaintiff properly invokes federal question
jurisdiction by pleading a “colorable claim arising under the Constitution or laws of
the United States.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). A claim is
not colorable if: (1) the alleged claim under the Constitution or federal statutes
appears to be immaterial and made solely for the purpose of obtaining jurisdiction;
or (2) such a claim is wholly insubstantial and frivolous. Bell v. Hood, 327 U.S.
678, 682 (1946). Diversity jurisdiction exists when there is complete diversity of
citizenship between the parties, and the amount in controversy exceeds $75,000.
28 U.S.C. § 1332(a); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Here, it is not apparent from the face of the complaint or the attached
documents that this Court has subject matter jurisdiction pursuant to either 28 U.S.C.
§ 1331 or § 1332. On the contrary, the complaint states that this Court has
“jurisdiction and venue over this matter pursuant to Section 603-21.5 and 603-36 of
the Hawaii Revised Statutes.” Complaint at 1. Because these provisions apply
only to claims brought in the courts of the State of Hawaii, and not the United States
Courts, they are inapplicable here and do not establish this Court’s authority to hear
Plaintiff’s claims.

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Instead, Plaintiff appears to assert a state law claim relating to title to
real property that does not arise under the Constitution or laws of the United States.
Accordingly, this Court does not have federal question subject matter jurisdiction
under 28 U.S.C. § 1331. Nor does the Court have diversity jurisdiction pursuant to
28 U.S.C. § 1332 because Plaintiff and several of the defendants appear to be
citizens of the State of Hawaii. See Exxon Mobil Corp. v. Allapattah Servs., 545
U.S. 546, 553 (2005) (“In a case with multiple plaintiffs and multiple defendants, the
presence in the action of a single plaintiff from the same State as a single defendant
deprives the district court of original diversity jurisdiction over the entire action.”).
Accordingly, Plaintiff fails to establish this Court’s subject matter jurisdiction. See
Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (“A party invoking the
federal court’s jurisdiction has the burden of proving the actual existence of subject
matter jurisdiction.”).
Moreover, to the extent Plaintiff seeks to collaterally attack orders or
procedural rulings in the state court case, this federal court is without jurisdiction to
review the state court’s decisions. Plaintiff seeks an order from this Court that
would effectively overrule the final judgment issued in the state court case. This
Court, however, may not exercise appellate jurisdiction over state court decisions.
Under the Rooker-Feldman doctrine (Rooker v. Fidelity Trust Co., 263 U.S. 413
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(1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983),
collectively referred to as Rooker-Feldman), “‘a losing party in state court is barred
from seeking what in substance would be appellate review of the state judgment in a
United States District Court, based on the losing party’s claim that the state
judgment itself violates the loser’s federal rights.’” Bennett v. Yoshina, 140 F.3d
1218, 1223 (9th Cir. 1998) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005–06
(1994)). The Rooker-Feldman doctrine divests federal district courts of jurisdiction
to conduct direct reviews of state court judgments even when a federal question is
presented. Jurisdiction is lacking even if the state court decision is challenged as
unconstitutional. 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 United States Supreme Court.
The Court recognizes that the Rooker-Feldman doctrine does not apply
to a general constitutional challenge 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). But Plaintiff does not bring such a challenge here.
Rather, this action is essentially an attempt by Plaintiff to have this Court review and
overturn the state court decision. The Court is without jurisdiction to act upon such
a request.
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Pursuant to Federal Rule of Civil Procedure 12(b)(1), a case must be
dismissed for lack of subject matter jurisdiction when the Court lacks a
constitutional or statutory basis to adjudicate the controversy. Fed.R.Civ.P.
12(b)(1); Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975 (9th
Cir. 2012). Where the Court does not have federal subject matter jurisdiction,
claims may be dismissed sua sponte. Franklin, 745 F.2d at 1227 n.6; Fed.R.Civ.P.
12(h)(3). Having screened the complaint, the Court DISMISSES it and DENIES
Plaintiff’s Application as moot. Plaintiff is GRANTED leave to file an amended
complaint as follows:
If Plaintiff chooses to file an amended complaint, he is CAUTIONED
that he must clearly identify the basis for this Court’s subject matter jurisdiction.
Plaintiff should also clearly alleged the following: (1) the constitutional or statutory
right Plaintiff believes was violated; (2) the name of the defendant who violated that
right; (3) exactly what that defendant did or failed to do; (4) how the action or
inaction of that defendant is connected to the violation of Plaintiff’s rights; and (5)
what specific injury Plaintiff suffered because of that defendant’s conduct. See
Rizzo v. Goode, 423 U.S. 362, 371–72 (1976). Plaintiff must repeat this process for
each person or entity that she names as a defendant. If Plaintiff fails to
affirmatively link the conduct of each named defendant with the specific injury he
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suffered, the allegation against that defendant will be dismissed for failure to state a
claim.
Plaintiff must clearly designate on the face of the document that it is the
“First Amended Complaint.” The first amended complaint must be retyped or
rewritten in its entirety and may not incorporate any part of the original complaint by
reference. Any cause of action not raised in the first amended complaint is waived.
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
CONCLUSION
On the basis of the foregoing, the Court DISMISSES the complaint and
DENIES Plaintiff’s Application as moot. Plaintiff is GRANTED LEAVE TO
AMEND his Application and complaint as set forth in this Order. By June 6, 2014,
Plaintiff must:
1.

File the first amended complaint; and

2.

Either file an amended application to proceed in forma pauperis or pay

the filing fee.

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Plaintiff is CAUTIONED that failure to properly comply with both of
these requirements by June 6, 2014 will result in automatic dismissal of this action.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI‘I, May 8, 2014.

David Shinn v EWM Enterprises, LP. et al.; Civil No 14-00208 DKW-KSC;
ORDER DISMISSING COMPLAINT AND DENYING AS MOOT PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR
COSTS

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