Soliven v. Yamashiro et al

Filing 13

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND re 1 , 11 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/30/2014. "The court dismisses Plaintiff's Complaint with leave to amend. If she chooses to amend, she must do s o by July 11, 2014. " "Because the court is dismissing Plaintiff's claim for lack of subject matter jurisdiction, the court also denies her request for entry of default judgment. " (Motion terminated: 11 REQUEST for Entry of Default by Clerk Against Defendant, Gary Kokyu Yamashiro filed by Myrna Maneja Soliven.) (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). Myrna Maneja Soliven served by first class mail at the address of record on June 30, 2014. The Clerks Office returned the "Entry of Default by Clerk" document, lodged on June 25, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MYRNA MANEJA SOLIVEN,

)
)
Plaintiff,
)
)
vs.
)
)
GARY KOKYU YAMASHIRO; JOHN
)
DOES 1-50; JANE DOES 1-50,
)
)
Defendants.
)
_____________________________ )

Civ. No. 14-00244 SOM-KSC
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
On May 27, 2014, pro se Plaintiff Myrna Maneja Soliven
(“Plaintiff”) filed a Complaint against Gary Kokyu Yamashiro, an
Assistant Vice-President for Central Pacific Bank (“Defendant”).
The Complaint asserted, pursuant to 18 U.S.C. §§ 1001, 1341, 1343
(2006), and Haw. Rev. Stat. §§ 708-852, that Defendant falsely
executed a mortgage and schemed to defraud Plaintiff when his
employer, Central Pacific Bank, foreclosed on her property and
evicted her from her home.

See ECF No. 1 at 2.

Upon reviewing Plaintiff’s Complaint, the court
questioned whether it had subject matter jurisdiction.

On May

28, 2014, the court issued an order to show cause, instructing
Plaintiff to submit a written statement detailing why this court
had subject matter jurisdiction over her claims.

See ECF No. 5.

Plaintiff responded on June 16, 2014, submitting a
statement that attempted to explain why this court should have
jurisdiction over her Complaint.

See ECF No. 9.

Plaintiff noted

that all transactions and events relating to the controversy at
issue occurred in the state of Hawaii, and stated that both she
and Defendant are residents of the state of Hawaii.
Additionally, Plaintiff discussed new claims that were not
mentioned in her original Complaint: treble damages under 12
U.S.C. § 2607, a reference to the Regulations Relating to Housing
and Urban Development, 24 C.F.R. § 3500.10, and rights under the
First, Fourth, Fifth, and Seventh Amendments of the Constitution.
Id.

In examining whether it has subject matter jurisdiction over

the claims asserted in the Complaint, the court does not consider
matters not asserted in it.

Because Plaintiff has failed to show

why this court has jurisdiction over her Complaint, it is
dismissed with leave to amend.
Federal courts are courts of limited jurisdiction; they
may only consider claims in which there is complete diversity
between the parties, or claims regarding federal questions.

28

U.S.C. §§ 1331-32.
Diversity exists when the “matter in controversy
exceeds the sum or value of $75,000” and is between “citizens of
different States.”

28 U.S.C. § 1332.

A person is considered a

citizen of the state in which he or she 1) is domiciled, and
2) intends to remain indefinitely.

See Lew v. Moss,797 F.2d 747,

749-50 (9th Cir. 1986) (citing Owens v. Huntling, 115 F.2d 160,
162 (9th Cir. 1940)).

A federal question claim is one “arising

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under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.
Plaintiff has not demonstrated that there is complete
diversity between the parties.

Plaintiff herself has stated that

both she and Defendant are residents of Hawaii.

ECF No. 9 at 28.

She alleges nothing about intent to stay indefinitely.

Even if

she did so allege, that would make both parties citizens of the
same state.

Citizens of the same state do not have diversity of

citizenship.

See Lew, 797 F.2d at 749.

If there is no diversity

between the parties, then the court lacks diversity jurisdiction
over the claim.
This court could still exercise subject matter
jurisdiction if Plaintiff asserts claims pursuant to federal law.
Plaintiff asserts claims under 18 U.S.C. §§ 1001, 1341, 1343, and
Haw. Rev. Stat. §§ 708-852.

However, 18 U.S.C. §§ 1001, 1341,

and 1343 are all federal criminal statutes that Plaintiff lacks
standing to bring because she is a private citizen.

The cited

federal criminal statutes do not provide for private claims and
may only be prosecuted by United States attorneys, not private
citizens.

In addition, 18 U.S.C. §§ 1001, 1341, and 1343 contain

no implied civil causes of action: “[i]t is especially difficult
to find an implied civil cause of action in ‘a bare criminal
statute, with absolutely no indication that civil enforcement of
any kind was available to anyone.’”

3

Ateser v. Bopp, Nos. 92-

36869, 92-36964, 1994 WL 377872, at *2 (9th Cir. July 19, 1994)
(quoting Cort v. Ash, 422 U.S. 66, 78 (1975)).

Because Plaintiff

has no explicit or implied standing to bring a claim under the
federal criminal statutes mentioned in the Complaint, these
federal criminal claims are dismissed.
Plaintiff’s other claims are brought under state laws.
Although the court can exercise supplemental jurisdiction over
state law claims that share a common nucleus of operative fact
with federal claims, the court is not required to do so.

See

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“The
power [of supplemental jurisdiction] need not be exercised in
every case in which it is found to exist.

It has consistently

been recognized that pendent jurisdiction is a doctrine of
discretion, not of plaintiff’s right.”).

This court declines to

exercise supplemental jurisdiction over Plaintiff’s state law
claims, as the claims grounded in federal law have been
dismissed.

Plaintiff’s state law claims are dismissed.
The court dismisses Plaintiff’s Complaint with leave to

amend.

If she chooses to amend, she must do so by July 11, 2014.

However, Plaintiff should carefully consider whether she is
asserting only state law claims, in which event she should file
her Complaint in state court instead.

To the extent she relies

on federal statutes or regulations, she should consider whether
she may actually proceed under them.

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And if she seeks to allege

violations of constitutional rights, she should carefully
consider whether those rights apply to actions by individuals who
are not public employees.

For example, the Fourth Amendment does

not usually apply to employees of private banks, unless those
employees are acting in concert with public employees.
Similarly, the First Amendment prohibits the government, not
employees of private banks, from abridging enumerated freedoms.
This court will not here analyze in detail all the provisions
mentioned in Plaintiff’s response to this court’s earlier order,
but Plaintiff could avoid wasting time and effort by reviewing
the provisions she relies on to determine whether they actually
provide for claims against an employee of a bank.

Because the

court is dismissing Plaintiff’s claim for lack of subject matter
jurisdiction, the court also denies her request for entry of
default judgment.

See ECF No. 11.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 30, 2014.

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

Soliven v. Yamashiro; Civ. No. 14-00244 SOM-KSC; ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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