Shinn v. EWM Enterprises, LP et al

Filing 8

ORDER DISMISSING CASE. Signed by JUDGE DERRICK K. WATSON on 6/12/2014. ~ ... the Court DISMISSES the First Amended Complaint and directs the Clerk of Court to close this case. (ecs, )CERTIFICATE OF SER VICEParticipants 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,

ORDER DISMISSING CASE

vs.
EWM Enterprises, LP., et al.
Defendants.

ORDER DISMISSING CASE
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”). On May 8, 2014, the Court entered an Order dismissing the
complaint with leave to amend and denying the Application as moot. On June 4,
2014, Shinn filed a First Amended Complaint, which again fails to set forth
plausible grounds for this Court’s subject matter jurisdiction. The First Amended
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.,

1

Hutchison Sugar Plantation Co., Hawaii Pacific Brokers, LLC, and the President of
the United States.
STANDARD OF REVIEW
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,
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.
2

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 First Amended Complaint and documents attached
thereto, the Court finds that Plaintiff again fails to establish this Court’s subject
matter jurisdiction to hear this dispute. Subject matter jurisdiction is conferred on
federal courts either through federal question jurisdiction pursuant to 28 U.S.C.
§ 1331 or through diversity jurisdiction pursuant to 28 U.S.C. § 1332. Peralta v.
Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005). The First Amended
Complaint states that:
This court has jurisdiction pursuant to 28 U.S.C. § 1332 + 1331;
EWN Enterprises LP is a Nevada Corporation whose address is;
and the real property that is the subject of this complaint, Land
Commission Award 9971 to W.P. Leleiohoku, is situate on the
Island of Hawaii in the District of Ka‘u in the Hawaiian Islands
Ko Hawaii Nei Pae Aina and this conflict arising under the
constitution, laws, and treaties of the United States of America.
First Amended Complaint at 2.
First, a plaintiff properly invokes federal question jurisdiction by
pleading a “colorable claim arising under the Constitution or laws of the United
3

States.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Here, Plaintiff claims
that the United States Executive Branch and the President of the United States are
“responsible for the enforcement of all agreements made between Liliuokalani
Queen of the Kingdom of the Hawaiian Islands KHPA and the President of the
United States of America currently Barrack Obama.” First Amended Complaint at
3. Plaintiff cites the “continuing willful illegal occupation,” and the alleged
“[f]ailure of the President of USA to comply respect enforce and abide by the LEA
and end the unlawful occupation of the KHJ.” First Amended Complaint at 4. He
seeks an “order requiring the President of the United States of America to abide
enforce, comply and respect the Liliuokalani Executive agreement.” First
Amended Complaint at 4.
Plaintiff lacks a colorable federal claim. 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). It is well settled that this district court does not have jurisdiction to hear
claims challenging the legality of the overthrow of the Kingdom of Hawaii because
such claims present nonjusticiable political questions. See, e.g., Sai v. Clinton, 778
F. Supp. 2d 1 (D.D.C. 2011), aff’d sub. nom., Sai v. Obama, 2011 WL 4917030
4

(D.C. Cir. Sept. 26, 2011); Williams v. United States, 2008 WL 5225870 (D. Haw.
Dec. 15, 2008) (holding that the court lacked jurisdiction over an inmate’s civil
rights claims challenging the legality of the overthrow of the Kingdom of Hawaii
and Hawaii’s admission as a state to the United States); Algal Partners, L.P. v.
Santos, 2014 WL 1653084, at *2-3 (D. Haw. Apr. 23, 2014) (adopting reasoning in
Williams to decline jurisdiction over assertion that “the Hawaiian Kingdom
continues to exist and is under a prolonged and illegal occupation by the United
States”). See also State v. French, 883 P.2d 644, 649 (Haw. App. 1994)
(“[P]resently there is no factual (or legal) basis for concluding that the [Hawaiian]
Kingdom exists as a state in accordance with recognized attributes of a state’s
sovereign nature.”) (internal quotations omitted). Accordingly, the Court does not
have jurisdiction pursuant to 28 U.S.C. § 1331.
Second, 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). Plaintiff
and several of the defendants appear to be citizens of the State of Hawaii. Although
the First Amended Complaint states that EWM Enterprises LP is a Nevada
corporation, his certificate of service shows that the Carlsmith Defendants, C.
Brewer and Co., Mauna Kea Agribusiness Co., Hutchison Sugar Plantation Co.,
5

Hawaii Pacific Brokers, LLC, Avery Chumbley and Beverly Crudele were served
via mail at their addresses in the State of Hawaii. Plaintiff fails to establish that
these individuals and corporations are not citizens of the same state as Plaintiff.1
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 pursuant to 28 U.S.C
§ 1332.
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). As discussed above, Plaintiff fails to establish this Court’s subject
matter jurisdiction. See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996)

1

The Court takes judicial notice of the corporate defendants’ status as partnerships or corporations
incorporated in Hawaii, as noted in regulatory filings publicly available on the website of the State
Department of Commerce and Consumer Affairs, http://cca.hawaii.gov/breg.

6

(“A party invoking the federal court’s jurisdiction has the burden of proving the
actual existence of subject matter jurisdiction.”). His claims are therefore
dismissed.
Pursuant to Rule 15(a)(2), courts should “freely give leave [to amend]
when justice so requires.” Further, “requests for leave should be granted with
extreme liberality.” Moss v. U.S. Secret Service, 572 F.3d 962, 792 (9th Cir. 2009).
“Dismissal without leave to amend is improper unless it is clear . . . that the
complaint could not be saved by an amendment.” Id. However, “liberality in
granting leave to amend is subject to several limitations.” Ascon Props., Inc. v.
Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)). Those limitations include
undue prejudice to the opposing party, futility, and undue delay. Id. The district
court’s “discretion to deny leave to amend is particularly broad where plaintiff has
previously amended the complaint.” Id.
Here, the Court declines to grant Plaintiff another opportunity to amend
because amendment would be futile. Despite being given a second chance and
detailed instruction from the Court on pleading subject matter jurisdiction, Plaintiff
has failed to plausibly allege this Court’s subject matter jurisdiction. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily would
permit a pro se plaintiff to amend, leave to amend should not be granted where it
7

appears amendment would be futile.); see also Leadsinger, Inc. v. BMG Music, 512
F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to
amend for, among other reasons “repeated failure to cure deficiencies by
amendments previously allowed . . . [and] futility of amendment”). Nor does it
appear, based on the nature of Plaintiff’s claims and the parties, that Plaintiff can
overcome the jurisdictional hurdle. Accordingly, the Court, in its discretion,
declines to provide Plaintiff another opportunity to amend. See Leadsinger, Inc.,
512 F.3d at 532 (denying leave to amend because of “repeated failure to cure
deficiencies”).
CONCLUSION
On the basis of the foregoing, the Court DISMISSES the First
Amended Complaint and directs the Clerk of Court to close this case.
IT IS SO ORDERED.
DATED: June 12, 2014, at Honolulu, Hawai’i.

David Shinn v. EWM Enterprises, LP., et. al.,; Civ 14-00208 DKW-KSC; ORDER
DISMISSING CASE

8