Soliven v. Yamashiro et al

Filing 21

ORDER GRANTING MOTION TO DISMISS re 16 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/29/2014. "The court dismisses Soliven's Amended Complaint. The Clerk of the Court is directed to enter judgment in favor of Def endants and to close this case." (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 August 29, 2014.

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

)
)
Plaintiff,
)
)
vs.
)
)
GARY KOKYU YAMASHIRO, et al. )
)
Defendants.
)
_____________________________ )

CIVIL NO. 14-00244 SOM/RLP
ORDER GRANTING MOTION TO
DISMISS

ORDER GRANTING MOTION TO DISMISS
I.

INTRODUCTION.
Defendant Gary Kokyu Yamashiro moves to dismiss

Plaintiff Myrna Maneja Soliven’s Amended Complaint, or, in the
alternative, for summary judgment.

Because Soliven fails to

state a claim against Yamashiro upon which relief can be granted,
the court dismisses Soliven’s Amended Complaint.
II.

FACTUAL BACKGROUND.
On September 29, 2011, Central Pacific Bank filed a

foreclosure action in state court against Soliven, among others.
ECF No. 17-2, PageID # 75-80.
Soliven executed a promissory note in favor of City
Bank, secured by a mortgage naming the Mortgage Electronic
Registration System (“MERS”) as the nominee for City Bank.
No. 17-2, PageID # 76-77.

On August 11, 2011, the mortgage was

assigned by Yamashiro, as Assistant Secretary for MERS, to
Central Pacific Bank.

ECF

ECF No. 17-2, PageID # 96-98.

In the foreclosure action, Soliven filed a
“Counterclaim against Plaintiff and 3rd Parties,” in which she
argued that Yamashiro, a vice president of Central Pacific Bank,
had falsely claimed to be an Assistant Secretary of MERS and
unlawfully assigned the mortgage to Central Pacific Bank.
No. 17-4, PageID # 112-13.

ECF

Soliven contended that the assignment

was void as a result of Yamashiro’s alleged conduct.

Id., PageID

# 117.
On August 30, 2013, the state court dismissed Soliven’s
counterclaim.

ECF No. 17-7, PageID # 217-19.

entered on the same date.

Final judgment was

ECF No. 17-8, PageID # 220-22.

Soliven did not file an appeal from the final judgment.

ECF No.

17-1, PageID # 74.
On May 27, 2014, Soliven filed a complaint against
Yamashiro in this court.

ECF No. 1.

The complaint was dismissed

for lack of subject matter jurisdiction, with leave to amend, on
June 30, 2014.

ECF No. 13.

On July 11, 2011, Soliven filed an Amended Complaint
against Yamashiro, contending that Yamashiro had violated 31
U.S.C. § 3729, Chapter 480 of Hawaii Revised Statutes, and Haw.
Rev. Stat. § 708-852 by having falsely claimed to be the
Assistant Secretary of MERS in assigning the mortgage to Central
Pacific Bank.

ECF No. 14.

Soliven also asserts that Yamashiro’s

alleged conduct renders the assignment illegal because a contract

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must be signed by two parties.

ECF No. 14, PageID # 47.

Yamashiro filed a motion to dismiss, or, in the
alternative, for summary judgment on July 31, 2014.

ECF No. 16.

Yamashiro contends that Soliven’s Amended Complaint must be
dismissed for lack of subject matter jurisdiction because 31
U.S.C. § 3729, the basis of Soliven’s only federal claim, does
not apply to the circumstances at issue.
59.

ECF No. 16-1, PageID #

Yamashiro also argues that Soliven’s state law claims are

barred by res judicata because Soliven litigated the same issues
in her state court counterclaim.

Id., PageID # 58.

Soliven failed to file an opposition to Yamashiro’s
motion.
In his reply, Yamashiro notes Soliven’s failure to
respond, and requests sanctions pursuant to Rule 11(c)(3) of the
Federal Rules of Civil Procedure because the Amended Complaint is
“frivolous on its face.”

ECF No. 20, PageID # 225.

The court

declines to order sanctions pursuant to Rule 11(c)(3) of the
Federal Rules of Civil Procedure.

Yamashiro does not appear to

have followed the procedure set forth in Rule 11(c)(2) for a
motion for sanctions.
III.

STANDARD.
Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court’s review is generally limited to the
contents of the complaint.

Sprewell v. Golden State Warriors,

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266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).

If matters outside the

pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.

See Keams v. Tempe Tech. Inst., Inc.,

110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).

Courts may “consider certain

materials--documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice--without converting the motion to dismiss into a
motion for summary judgment.”

United States v. Ritchie, 342 F.3d

903, 908 (9th Cir. 2003).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988; Syntex

Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Additionally, the court need not accept as true allegations that
contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell, 266 F.3d at 988.
Dismissal under Rule 12(b)(6) may be based on either:

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(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555.

The complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570.

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

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Iqbal,

556 U.S. at 677.
IV.

ANALYSIS.
A.

Soliven May Not Relitigate Matters Addressed in
State Court, or Appeal the State Court Order and
Judgment to This Court.
1.

Res Judicata.

Yamashiro argues that Soliven’s claims are barred by
res judicata.

ECF No. 16-1, PageID # 64-66.

The court agrees.

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
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)); see also Morneau v. Stark Enters., Ltd., 56
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Haw. 420, 422-23, 539 P.2d 472, 474-75 (1975) (“[t]he 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”).
The related 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; (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.
Id. 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.

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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.
Kauhane v. Acutron Co., 71 Haw. 458, 463, 795 P.2d 276, 278-79
(1990).
Soliven’s claims are barred by the doctrine of res
judicata.

All of her claims in the present action are based on

the same argument contained in her state court counterclaim that
Yamashiro did not validly assign the note and mortgage to Central
Pacific Bank as the Assistant Secretary of MERS.

In dismissing

Soliven’s counterclaim, the state court necessarily decided that
Yamashiro was authorized to act on behalf of MERS, and that
Yamashiro’s conduct did not undermine the validity of the
assignment.

Soliven may not relitigate that determination here.

Because Soliven’s claims are barred by res judicata,
Soliven’s Amended Complaint fails to state plausible claims for
relief against Yamashiro.
2.

Rooker-Feldman Doctrine.

To the extent Soliven may be seeking to appeal state
court orders and judgments in the state-court proceeding to this
court, such an effort is barred by the Rooker-Feldman doctrine.
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.

See

Bennett v. Yoshina, 140 F.3d 1218, 1223 (9th Cir. 1998); accord

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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).
If Soliven is seeking review of the state court’s
dismissal of her counterclaim, or any other state court ruling in
the foreclosure action, Soliven should have pursued an appeal
through the state’s appellate system.

This court is not

permitted to consider any appeal.
B.

Soliven Fails to State a Claim Upon Which Relief
Can Be Granted Against Yamashiro For Violation of
31 U.S.C. § 3729.

Even assuming res judicata and the Rooker-Feldman
doctrine do not apply, Soliven’s 31 U.S.C. § 3729 claim must be
dismissed because she fails to state a plausible claim for relief
under that statute.
Contrary to Soliven’s assertions, 31 U.S.C. § 3729 is
irrelevant to Yamashiro’s alleged conduct.

That section

addresses false claims against the United States Government.
Because Soliven’s allegations have no connection to a claim

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against the United States, Soliven fails to state a plausible
claim for relief under 31 U.S.C. § 3729.
C.

Soliven Fails to State a Claim Upon Which Relief
Can Be Granted Against Yamashiro For Violation of
Haw. Rev. Stat. § 708-852.

Even assuming res judicata and the Rooker-Feldman
doctrine do not apply, Soliven’s claim for relief under Haw. Rev.
Stat. § 708-852 must be dismissed for failure to state a claim.
Haw. Rev. Stat. § 708-852, contained in the Hawaii
Penal Code, covers forgery in the second degree.

Soliven, as a

private citizen, lacks standing to bring a claim against
Yamashiro under this criminal statute.

See Tia v. Criminal

Demand As Set Forth Per Investigation, Civ. No. 10-00441 DAE-BMK,
2010 WL 3001912, at *4 (D. Haw. July 30, 2010) (“[A] private
citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another.

Additionally, the violation of

criminal statutes rarely provide a private right of action.”)
(citation omitted); see also Ellis v. City of San Diego, 176 F.3d
1183, 1189 (9th Cir. 1999) (noting that the California Penal Code
“do[es] not create enforceable individual rights”).

Soliven

fails to state a plausible claim for relief under Haw. Rev. Stat.
§ 708-852.
V.

CONCLUSION.
The court dismisses Soliven’s Amended Complaint.

Clerk of the Court is directed to enter judgment in favor of

The

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Defendants and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 29, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Soliven v. Yamashiro, et al., Civ. No. 14-00244 SOM/RLP; ORDER GRANTING MOTION
TO DISMISS

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