Conner et al v. Office of Hawaiian Affairs et al

Filing 57

ORDER GRANTING DEFENDANTS' 45 48 MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION. Signed by JUDGE DERRICK K. WATSON on 12/31/2014. ~ The Defendants motions to dismiss (Dkt. Nos. 45 and 48) are hereby granted for la ck of subject matter jurisdiction. The Clerk of Court is directed toclose the case. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronica lly 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 Modified on 12/31/2014 - Opinion (ecs, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

DE MONT R.D. CONNER, et al.,
Plaintiffs,
vs.
OFFICE OF HAWAIIAN AFFAIRS,
et al.,

CIVIL NO. 14-00350 DKW- RLP
ORDER GRANTING
DEFENDANTS’ MOTIONS TO
DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION

Defendants.

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION
Plaintiffs pro se De Mont Conner and Rachel Kailianu Conner assert fraud
claims against the Office of Hawaiian Affairs (“OHA”), the Native Hawaiian Roll
Commission, OHA Trustees, and several other state employees, sued both in their
official and individual capacities. This Court previously denied the Conners’
motion for temporary restraining order, holding that the Conners had not
established a likelihood of success on the merits of any aspect of their complaint,
although it was not clear at that time what claims their complaint was actually
asserting. Dkt. No. 6. Defendants now move to dismiss the complaint. Because
the Conners clarified in briefing and at the December 18, 2014 hearing that their

complaint is based on fraud, a claim over which this Court lacks subject matter
jurisdiction, Defendants’ motions to dismiss are granted.
STANDARD OF REVIEW
Pursuant to Rule 12(b)(1), a defendant may move to dismiss a complaint for
lack of subject matter jurisdiction. In a motion to dismiss for lack of subject matter
jurisdiction, the plaintiff bears the initial burden of proving that subject matter
jurisdiction exists. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009).
DISCUSSION
Because they are proceeding pro se, the Court liberally construes the
Conners’ 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)). “Pro se litigants must [nonetheless] follow the same
rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567
(9th Cir. 1987). 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).
That said, “[f]ederal courts are courts of limited jurisdiction,” possessing
“‘only that power authorized by Constitution and statute.’” United States v. Marks,
2

530 F.3d 799, 810 (9th Cir. 2008) (quoting Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994)). The Conners bear the burden of establishing subject
matter jurisdiction. At the pleading stage, a plaintiff must allege sufficient facts to
show a proper basis for the Court to assert subject matter jurisdiction over the
action. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936);
Johnson v. Columbia Props. Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006);
Fed. R. Civ. P. 8(a)(1).
In general, a plaintiff in federal district court may establish subject matter
jurisdiction in one of two ways. First, he may assert “federal question
jurisdiction,” based on allegations that a defendant violated the Constitution, a
federal law, or treaty of the United States. See 28 U.S.C. § 1331 (“The district
courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”). Second, a plaintiff may
invoke the court’s “diversity jurisdiction,” which applies “where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1). As
discussed more fully below, the complaint fails to satisfy the requirements for
either federal question or diversity jurisdiction.
In order to establish federal question jurisdiction, the Conners must allege
facts that are sufficient to state a plausible claim under federal law. In the
3

opposition brief, the Conners clarified that they “have clearly stated a cause of
action, which presents a Question of Fact, to wit: Fraud and Conspiracy to commit
fraud . . . .” Opp. Br. at 3. The Conners further simplified the basis of their entire
complaint as seeking resolution of the following two-part question:
Did OHA and Kana‘iolowalu conspire to: 1.) Fabricate the number of
people who “signed up” for the Native Hawaiian Roll Call; and 2.)
Used the fabricated story to justify “taking” beneficiary trust funds for
their own benefit, and NOT to benefit the Beneficiaries.
Opp. Br. at 3. Even giving the Conners the liberal construction that they are
entitled to as pro se plaintiffs, it is plain that the gravamen of the complaint is a
claim of fraud or conspiracy to commit fraud on the part of the defendants, as well
as a breach of fiduciary duty in perpetrating the fraud in question. However, fraud,
conspiracy to commit fraud, and breach of fiduciary duty are not claims arising
under federal law. These are all claims arising under Hawai‘i state law. See, e.g.,
Avery v. GE Auto Ins. Program, 243 Fed. Appx. 268, 268 (9th Cir. 2007) (“The
district court also properly found no federal question jurisdiction because the
[plaintiffs’] action, which alleged breach of contract, breach of fiduciary duties,
bad faith, unfair and deceptive practices, fraud on the court, malice, and failure to
defend, does not arise ‘under the Constitution, laws, or treaties of the United
States.’” (quoting 28 U.S.C. § 1331)); Mather v. Nakasone, 2013 WL 4788930,
at *2 (D. Haw. Sept. 5, 2013) (holding that there was no federal question

4

jurisdiction because “breach of fiduciary duty and fraud . . . are state law claims”).
Accordingly, there is no basis for federal question jurisdiction.1
There is also no basis for diversity jurisdiction here. Although federal courts
can decide questions of state law, they may only do so “where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1). It is the
Conners’ burden to establish that there is complete diversity between the parties.
See Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001)
(explaining that § 1332(a) “requires complete diversity of citizenship; each of the
plaintiffs must be a citizen of a different state than each of the defendants”). The
complaint does not address the “citizenship” of the parties per se, but it does assert
that the Conners are “residents” of Hawai‘i and that several, if not all, of the
defendants are also “residents” of Hawai‘i. Given the lack of complete diversity of
citizenship, this Court cannot decide the Conners’ complaint that is based solely on
allegations of state law violations.

1

At the hearing, the Court advised the Conners that there did not appear to be federal question
jurisdiction. In light of the Court’s statements, the Conners admitted that fraud would not be a
basis for a federal claim, but made reference to breach of fiduciary duty as well as Fifth
Amendment “takings” as an alternative basis for their claims. The Court is not convinced by the
Conners’ belated attempts to secure a federal jurisdictional hook. Regardless of the label placed
on the Conners’ claim, the gravamen of the allegations of the complaint, as the Conners freely
admit, center on defendants’ alleged fraud or conspiracy to commit fraud.

5

Accordingly, this Court is without subject matter jurisdiction to adjudicate
the Conners’ complaint, and no amendment could cure that defect.2 The Court
expresses no opinion on the merits of the Conners’ claims or whether those claims
could be brought in another court.
CONCLUSION
The Defendants’ motions to dismiss (Dkt. Nos. 45 and 48) are hereby
granted for lack of subject matter jurisdiction. The Clerk of Court is directed to
close the case.
IT IS SO ORDERED.
DATED: December 31, 2014 at Honolulu, Hawai‘i.

De Mont Conner, et al. v. Office of Hawaiian Affairs, et al.; CV 14-00350 DKWRLP; ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS FOR
LACK OF SUBJECT MATTER JURISDICTION

2

The Court does not address any of the other bases for dismissal raised by the defendants in their
motions.

6