Caldarone v. Abercrombie et al

Filing 76

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS GERALD CLAY AND ROBERT CHAPMAN'S RENEWED MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANTS THE HONORABLE NEIL ABERCROMBIE, KEALII LOPEZ, FORMER DIRECTOR, DEPARTMENT OF CO MMERCE & CONSUMER AFFAIRS, AND THE HONORABLE RONALD IBARRA'S MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH PREJUDICE re 49 Motion for Summary Judgment; re 56 Motion to Dismiss for Lack of Jurisdiction. Signed by JUDGE LESLIE E. KOBAYASHI on 04/30/2015. Plaintiff's First Amended Complaint is HEREBY DISMISSED WITHOUT PREJUDICE as to Defendants Clay and Chapman. Plaintiff shall have until June 1, 2015 to move the Court to file his second amend ed complaint, if he so chooses. The Court emphasizes that Plaintiff may not add new parties, claims or theories of liability, unless those additions are specifically requested in the motion. The Court CAUTIONS Plaintiff that if he does not make a mot ion to amend by June 1, 2015, the Court will DIRECT the Clerk's Office to close this case. (eps)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 HAWAII
RICHARD W. CALDARONE,

)
)
Plaintiff,
)
)
vs.
)
)
GOVERNOR NEIL ABERCROMBIE, ET )
AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL 14-00523 LEK-BMK

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS GERALD
CLAY AND ROBERT CHAPMAN’S RENEWED MOTION TO DISMISS AND/OR FOR
SUMMARY JUDGMENT; AND GRANTING DEFENDANTS THE HONORABLE NEIL
ABERCROMBIE, KEALII LOPEZ, FORMER DIRECTOR, DEPARTMENT OF
COMMERCE & CONSUMER AFFAIRS, AND THE HONORABLE RONALD IBARRA’S
MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH PREJUDICE
Before the Court are: (1) Defendants Gerald Clay
(“Clay”) and Robert Chapman’s (“Chapman,” collectively “Clay
Chapman Defendants”) Renewed Motion to Dismiss and/or for Summary
Judgment, filed February 3, 2015 (“Clay Chapman Motion”); and
(2) Defendants the Honorable Neil Abercrombie (“Governor
Abercrombie”), Kealii Lopez, Former Director, Department of
Commerce & Consumer Affairs (“Director Lopez”), and the Honorable
Ronald Ibarra’s (“Judge Ibarra,” collectively “State Defendants”)
Motion to Dismiss First Amended Complaint with Prejudice, filed
February 13, 2015 (“State Motion,” collectively “Motions”).
[Dkt. nos. 49, 56.]

On March 19, 2015, pro se Plaintiff Richard

W. Caldarone (“Plaintiff” or “Caldarone”) filed his “Motion to
NOT DISMISS for lack of Jurisdiction and Summary Judgment,” which

this Court construes as his memorandum in opposition to the
Motions.

[Dkt. no. 67.]

On April 1, 2015, the Clay Chapman

Defendants filed their reply and, on April 2, 2015, the State
Defendants filed their reply.

[Dkt. Nos. 68, 69.]

The Court

finds these matters suitable for disposition without a hearing
pursuant to Rule LR7.2(d) of the Local Rules of Practice of the
United States District Court for the District of Hawai`i (“Local
Rules”).

After careful consideration of the Motions, supporting

and opposing memoranda, and the relevant legal authority, the
Clay Chapman Motion is HEREBY GRANTED IN PART AND DENIED IN PART,
and the State Motion is HEREBY GRANTED for the reasons set forth
below.
BACKGROUND
On November 18, 2014, Plaintiff filed his complaint
against the Clay Chapman Defendants, the State Defendants, and
Defendant David Louie, Attorney General (“Attorney General
Louie”) and, in January 2015, both the Clay Chapman Defendants
and the State Defendants filed motions to dismiss.
23, 32.]

[Dkt. nos. 1,

However, later that month, on January 20, 2015,

Plaintiff filed a document, which the Court construed as
Plaintiff’s First Amended Complaint.

[Dkt. nos. 35 (First

Amended Complaint), 36 (Entering Order (“EO”), filed 1/23/15
(“1/23/15 EO”)).]

As a result of the filing of the First Amended

Complaint, this Court treats the original complaint as “non-

2

existent.”

[1/23/15 EO at 2 (citing Cano v. Taylor, 739 F.3d

1214, 1220 (9th Cir. 2014)).]

That is, since he chose to file an

updated complaint, the claims in the First Amended Complaint are
the ones that the defendants must defend against.

For that

reason, the Court found that the original motions to dismiss were
moot, [id.,] as were Plaintiff’s responses to those motions [dkt.
nos. 38 (filed 1/26/15), 39 (filed 1/26/15) 41 (EO, filed
1/29/15) (denying responses as moot)].

Neither party prevailed

or suffered an adverse consequence from those motions; it is as
if none of the documents were ever filed.
Since he filed his First Amended Complaint, however,
both the Clay Chapman Defendants and the State Defendants have
filed new motions to dismiss.1

Further, in their Motions, they

request that this Court dismiss with prejudice the First Amended
Complain, meaning that Plaintiff may not amend his complaint
again because doing so would be futile based on the law, and the
facts as Plaintiff has presented them.
At the outset, the Court notes that it must interpret
the First Amended Complaint liberally since Plaintiff is not
currently represented by counsel.

1

This Court must “construe pro

It is not clear why the State Defendants have not filed
either of their motions on behalf of Attorney General Louie. The
State Defendants are clearly aware that he was named in this
case. See e.g., Mem. in Supp. of State Motion at 1 n.2. This is
of no moment since the Eleventh Amendment, which is the grounds
for dismissal for the State Defendants, see infra Discussion
Section I.B., applies equally to him.
3

se complaints liberally and may only dismiss a pro se complaint
for failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.”

Wilhelm v. Rotman, 680 F.3d 1113,

1121 (9th Cir. 2012) (citation and internal quotation marks
omitted).

However, normal court rules and procedures still apply

to Plaintiff.

See Solis v. McKessen, 465 F. App’x 709, 710 (9th

Cir. 2012) (“‘Pro se litigants must follow the same rules of
procedure that govern other litigants.’” (quoting King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987))).
I.

Nature of the Case
From what the Court gathers from the filings by the

various parties, this case relates to a foreclosure action
brought against Plaintiff by his lender, Onewest Bank, FSB
(“Onewest”), filed March 21, 2013 in the Circuit Court of the
Third Circuit, State of Hawai`i (“the Foreclosure Action”).

See,

e.g., First Amended Complaint at pg. 4 (Jurisdiction section
(referring to “Case No. 13-1-235 K”));2 Mem. in Supp. of Clay
Chapman Motion, Clay Chapman Defs.’ Separate Concise Statement of
Facts (“Clay Chapman CSOF”), filed 2/3/15 (dkt. no. 49-2), Decl.
of Counsel (“Martin Decl.”), Exh. A (Onewest Bank, FSB, v.

2

Since none of Plaintiff’s filings have page numbers, the
Court refers to the page numbers generated by the district
court’s electronic filing system. Where Plaintiff includes
paragraph numbers, the Court includes those too.
4

Caldarone et al., Civil No. 13-1-235K (Foreclosure), Order
Granting Plaintiff’s Motion to Dismiss Without Prejudice
Plaintiff’s Complaint Filed March 21, 2013 as to All Claims and
Parties and to Cancel Trial Date, Filed on October 17, 2014
(“Foreclosure Dismissal Order”)).
Most of Plaintiff’s claims in the First Amended
Complaint appear to stem from his negative feelings about the
Foreclosure Action, which Judge Ibarra dismissed on November 21,
2014, just days after Plaintiff first initiated the instant case
before this Court and two months before he filed his First
Amended Complaint.

[Foreclosure Dismissal Order at 2.]

Counsel

for the Clay Chapman Defendants further attests that no
foreclosure action is pending related to Plaintiff’s property, as
far as she knows.

[Martin Decl. at ¶ 6.]

Plaintiff does not

argue in his memorandum in opposition to the Motions, or anywhere
else, that he is presently subject to any foreclosure action.
On October 4, 2013, while the Foreclosure Action was
still pending, Plaintiff initiated another lawsuit in this
district court, Calderone v. Otting et al., CV 13-00516 DKW-BMK
(“Otting”), against the institutions and individuals involved in
making the loan at issue (“Loan”) in the Foreclosure Action,
including their counsel.

On September 22, 2014, another judge in

this district court dismissed the case with prejudice, in part,
because the court found it did not have jurisdiction over the

5

lawsuit.
9.]

[Otting, dkt. no. 89 (“Otting Dismissal Order”) at 4-

Plaintiff is currently pursuing his appeal of that dismissal

before the Ninth Circuit Court of Appeals.

See, e.g., Otting,

dkt. no. 100 (Ninth Circuit scheduling order, issued 1/14/15).
In this second-wave litigation, Plaintiff brings suit
against individuals that he did not sue in Otting, and whose
relationship to the mortgage and foreclosure is more attenuated.
The Court interprets the claims in the First Amended Complaint
as: a general state law tort claim, in the nature of invasion of
privacy or civil harassment, against numerous non-parties and
“Clay Chapman” (“Count I”); a constitutional due process claim,
in the nature of a 28 U.S.C. § 1983 claim, against the State
Defendants for aiding and abetting the lenders and foreclosing
entities in their purported fraud and predatory lending scheme
(“Count II”); and intentional infliction of emotional distress
against the State Defendants for ruling against him in the
Foreclosure Action (“Count III”).

The First Amended Complaint

seeks the following relief: general damages; special damages
amounting to approximately $106,460.00; “damages for intentional
infliction of emotional distress” in an amount of
$125,000,000.00; punitive damages of $125,000,000; attorneys’
fees and costs, and interest; and all other appropriate relief.3

3

In this Order, the Court maintains the spelling,
capitalization, emphases, and paragraph structuring from the
(continued...)
6

[First Amended Complaint at pgs. 7-8 (emphasis omitted).]
Notably, Plaintiff does not include any request for injunctive
relief.
II.

Allegations Against the State Defendants
Plaintiff alleges that, on July 22, 2012, he and his

organization, Alliance Against Foreclosure, sent Governor
Abercrombie a letter.

[First Amended Complaint at 2 at ¶ 3

(referring to letter attached with original complaint (dkt. no.
1-1)).]

In it, he requested that the governor, “‘Stop All

Foreclosures and examine Banking practices[,]’” and he enclosed a
petition with twenty pages of signatures, asking the State to
require banks to produce the original promissary note to
foreclose on a mortgage.

[Id.]

On April 15, 2013, Governor

Abercrombie sent Plaintiff a response, thanking Plaintiff and
notifying him that the petition had been forwarded to the
Department of Commerce and Consumer Affairs (“DCCA”) for followup.

[Id. at ¶ 4 (referring to letter (dkt. no. 1-2 at 1).]

Director Lopez responded by letter to Plaintiff on April 26,
2013, acknowledging Plaintiff’s concerns, but explaining that
there was currently no law requiring “showing the ‘Original Wet
ink Promissory Note’ to Foreclose.”
letter (dkt. no. 1-2 at 2-4)).]

[Id. at ¶¶ 5-7 (referring to

Director Lopez also suggested in

3

(...continued)
First Amended Complaint, except where specifically noted.
7

his letter that Plaintiff might consider pursuing legislation.
[Id. at ¶ 8.]

Plaintiff did not appreciate these responses and

alleges:
9. Plaintiff Caldarone would like to reiterate
that if Abercrombie is so ‘concerned about
injustice’ as stated in [his letter] then why did
Abercrombie allow the State of Hawaii to continue
to harass Caldarone, his family etc.
By allowing One West Bank/Ocwen to pursue him for
a ‘Trial’ in State Court?
. . . .
12. Hinged to this ‘Gross Negligence’ [against the
lenders] is the additional ‘Gross Negligence’ of
the State of Hawaii for not checking the Records
to see if Caldarone was qualified for the Loan.
Instead, the State of Hawaii automatically assumed
Caldarone was ‘guilty’ of wrong doing.
13. Plaintiff Caldarone questions why the DCCA
(Which Defendant Lopez is the director of) has ‘no
responsibility’ in over seeing the actions of
Mortgage Brokers approved by the State of Hawaii.
[Id. at pg. 3 (brackets added).]

Further, in Count II, Plaintiff

alleges:
4. The State of Hawaii with the Defendants
involved has conspired to deny Caldarone his
rights as outlined in the Constitution and as such
has orchestrated a ‘lynch mob mentality’ not only
against the Plaintiff but also against the
citizens of the State of Hawaii!”
5. And as such, the State of Hawaii has Aided and
Abetted the Predatory Lending of the Mortgage
Broker (Kurt Nielsen-former CEO of Island Home
Capital), Aided and Abetted the Fraud of the Bank
(One West/IndyMac), Elder abuse, Void of Due
Process, Breach of Contract etc.”
[Id. at pg. 6.]
8

Regarding Judge Ibarra, Plaintiff alleges, in his
section titled “Jurisdiction,” the following:
Ibarra Dismissed the Case but allowed One West
Bank to continue to sue Caldarone for a ‘Trial’.
In a letter (dated Nov. 3 to Judge Strance)
Caldarone question why he wasn’t being given a
‘Jury Trial’ under the Bill of Rights. Caldarone
also questioned why One West was allowed to
continue to sue (after the Case was Dismissed by
Ibarra) a half year before. After one year of
selling the Servicing rights to Ocwen, One West
was still allowed to sue Caldarone. Judge Ibarra
not only ‘perjured his Oath of Office’ but has
also shown he is ‘incapable of impartial
judgment’. . . . Because of the numerous Due
Process violations, the Claims against the
Plaintiff by and through the Perjury of Ibarra’s
Oath, have made the Court Constitutionally
Defective and without Lawful Jurisiction!
Therefore, Caldarone’s Case in State Court should
be immediately Dismissed with
Prejudice! . . . The Plaintiff strenuously
objects to the Unconstitutional and on going
actions of Ibarra whose rulings are ‘null and void
and have no force of law!’
[Id. at pgs. 4-5.]

He also generally alleges in “Count III”

that: “All of the Defendants have ‘perjured their Oath of
Office’.”

[Id. at pg. 7 ¶ 2.]
In essence, as to Governor Abercrombie and Director

Lopez, Plaintiff alleges that they violated their oaths of office
by not changing the law as a result of his petition, and aided
and abetted the bank and mortgagee in permitting the Loan and the
Foreclosure Action.

As to Judge Ibarra, Plaintiff alleges the

judge violated his due process rights under the constitution and
intentionally caused Plaintiff emotional distress in ruling, in
9

part, against him.
III. Allegations Against the Clay Chapman Defendants
The sole mention of Clay or Chapman is in Count I:
3. As a further direct and proximate result of
such unlawful conduct, Plaintiff has suffered the
indignity of harassment (R.C.O-Routh, Crabtree,
Olsen/Clay Chapman and also Ocwen) through phone
calls and Summons. Invasion of Privacy
(trespassing) by humiliation (of the above Co.’s)
which caused great emotional distress.
[Id. at pg. 5 ¶ 3.]

It appears that Plaintiff is bringing a

state law claim against the Clay Chapman Defendants for
purportedly harassing him in the foreclosure process.
DISCUSSION
In the Motions, the Defendants move to dismiss all
claims with prejudice.
at 2.]

[State Motion at 2; Clay Chapman Motion

The Clay Chapman Defendants further request an award of

sanctions against Plaintiff “for this vexatious litigation.”
[Mem. in Supp. of Clay Chapman Motion at 7.]
I.

The State Motion
The State Defendants argue that the First Amended

Complaint should be dismissed as to them because: (1) the Court
lacks jurisdiction pursuant to the Rooker-Feldman
doctrine;4 (2) Plaintiff’s claims are for damages and thus barred

4

“The Rooker–Feldman doctrine provides that federal
district courts lack jurisdiction to exercise appellate review
over final state court judgments.” Henrichs v. Valley View Dev.,
(continued...)
10

by the Eleventh Amendment to the United States Constitution; and
(3) the claims against Judge Ibarra are barred by absolute
judicial immunity.
A.

Claims against Judge Ibarra
The Court agrees with the State Defendants that

Plaintiff’s claims against Judge Ibarra are absolutely barred by
judicial immunity and, even if they were not, the Rooker-Feldman
doctrine divests this Court of jurisdiction as to these claims.
“Judicial immunity is recognized because ‘judges should
be at liberty to exercise their functions with independence and
without fear of consequences,’ Pierson v. Ray, 386 U.S. 547, 554
(1967), ‘from vexatious actions prosecuted by disgruntled
litigants.’

Forrester v. White, 484 U.S. 219, 225 (1988).”

Oliver v. Long, No. CV-06-2429-PCT-LOA, 2007 WL 1098527, at *4
(D. Ariz. Apr. 12, 2007).

“‘A judge will not be deprived of

immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will
be subject to liability only when he has acted in the clear
absence of all jurisdiction.’”

Ramirez v. Pasternak, 408 F.

App’x 55, 55-56 (9th Cir. 2011) (some citations and internal

4

(...continued)
474 F.3d 609, 613 (9th Cir. 2007) (some citations omitted)
(citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.
Ct. 149, 68 L. Ed. 362 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S. Ct. 1303, 75 L.
Ed. 2d 206 (1983)).
11

quotation marks omitted) (quoting Stump v. Sparkman, 435 U.S.
349, 356–57, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978)).5
All of Plaintiff’s allegations against Judge Ibarra
relate to his decisions in the Foreclosure Action.
Background Section II.

See supra

Plaintiff does not challenge, nor can he,

Judge Ibarra’s jurisdiction to consider that case.
had jurisdiction pursuant to state law.

Judge Ibarra

See Haw. Rev. Stat.

§ 603-21.7(a)(3) (giving jurisdiction to state circuit courts
for, among other things, “foreclosure of mortgages”).

Thus, the

Court CONCLUDES that Plaintiff’s claims fall squarely within
absolute judicial immunity, and GRANTS the State Motion as to
Judge Ibarra.

Therefore, the Court DISMISSES WITH PREJUDICE all

claims against Judge Ibarra.

See, e.g., Heilman v. Sanchez, 583

F. App’x 837, 839-40 (9th Cir. 2014) (holding that “the district
court did not abuse its discretion by refusing to grant leave to
amend because those aspects of the complaint could not be cured
by amendment” (citing Weilburg v. Shapiro, 488 F.3d 1202, 1205
(9th Cir. 2007))).
Even if he was not protected by judicial immunity, the
Rooker-Feldman doctrine divests the Court of its jurisdiction
over these claims.

“Essentially, the doctrine bars ‘state-court

losers complaining of injuries caused by state-court judgments

5

The citations and excerpts that Plaintiff attaches to his
memorandum in opposition are consistent with the law herein
stated, but do not apply here factually. [Dkt. no. 67-2.]
12

rendered before the district court proceedings commenced’ from
asking district courts to review and reject those judgments.”
Henrichs, 474 F.3d at 613 (quoting Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L.
Ed. 2d 454 (2005)).

“[T]his doctrine applies even where the

challenge to the state court decision involves federal
constitutional issues.”

Doe & Assocs. Law Offices v. Napolitano,

252 F.3d 1026, 1029 (9th Cir. 2001) (citation omitted).
Plaintiff points out that he did not “lose” in state
court.

[Mem. in Opp. at 2.]

However, as the Ninth Circuit has

explained, Rooker-Feldman applies more broadly than simply to
barring the “losing” party: “the clearest case for dismissal
based on the Rooker–Feldman doctrine occurs when a federal
plaintiff asserts as a legal wrong an allegedly erroneous
decision by a state court, and seeks relief from a state court
judgment based on that decision.”

Reusser v. Wachovia Bank,

N.A., 525 F.3d 855, 859 (9th Cir. 2008) (citation, internal
quotation marks, and brackets omitted).

Although Plaintiff seeks

damages and not injunctive relief, he essentially asserts redress
for a legal wrong by Judge Ibarra – the decision to continue the
Foreclosure Action – which purportedly led to Plaintiff’s
emotional distress.6

As the State Defendants argue, see Mem. in

6

To the extent he requests dismissal of the Foreclosure
Action, that claim is moot as well.
13

Supp. of State Motion at 8, if Plaintiff did not agree with Judge
Ibarra’s decisions, his proper recourse was to pursue an appeal
in state court.

Plaintiff is familiar with filing an appeal

since he has done so in Otting.

Thus, even without judicial

immunity, the claims against Judge Ibarra are barred by the
Rooker-Feldman doctrine.
B.

Claims against Governor Abercrombie and Director Lopez
Similar to Judge Ibarra, immunity bars Plaintiff’s

claims against Governor Abercrombie and Director Lopez.
Eleventh Amendment provides:

The

“The Judicial power of the United

States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any
Foreign State.”

That is, unless the state agrees to be sued, a

federal court cannot entertain a suit against it.

See, e.g.,

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984) (“[A]n unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of
another state.” (citation and internal quotation marks omitted)).
“Furthermore, a suit against a state official acting in his or
her official capacity is considered a suit against that
official’s office and is thus ‘no different from a suit against
the State itself.’”

Elmatboly v. Arizona State Univ., 297 F.

App’x 654, 655 (9th Cir. 2008) (quoting Will v. Mich. Dep’t. of

14

State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45
(1989)).

Thus, the United States Supreme Court has recognized

that Eleventh Amendment

immunity extends to state officials,

such as Governor Abercrombie and Director Lopez, when they are
sued for doing something within the confines of their jobs.
Here, Plaintiff argues that Governor Abercrombie and
Director Lopez violated his rights by refusing to change the law
based on his petition, and by allowing him to enter a loan that
he could not afford.
owe him damages.

As a result, Plaintiff alleges that they

Since these claims are for acts taken pursuant

to official duties, and are for damages, the Eleventh Amendment
clearly bars them.7

While Plaintiff argues that Governor

Abercrombie and Director Lopez violated his constitutional (and
other) rights, it would violate the Constitution for this Court
to allow him to proceed in this case against Governor Abercrombie
and Director Lopez.

Since “plaintiff can prove no set of facts

in support of his claim which would entitle him to relief,”
Rotman, 680 F.3d at 1121, the Court GRANTS the State Motion and
DISMISSES WITH PREJUDICE Plaintiff’s claims against Governor

7

The Court agrees with the State Defendants that
Plaintiff’s citation to summaries of the dissent from Alden v.
Maine, 527 U.S. 706, 760-812 (1999) (Souter, J., dissenting), and
Ex Parte Young, 209 U.S. 123 (1908), see dkt. no. 67-1, do not
support Plaintiff. See State Defendants Reply at 5.
15

Abercrombie and Director Lopez.8

Further, since the Eleventh

Amendment applies equally to Attorney General Louie, the Court
DISMISSES WITH PREJUDICE the claims against him as well.
II.

The Clay Chapman Motion
The Clay Chapman Defendants argue that dismissal of the

First Amended Complaint is warranted because Plaintiff provides
no basis for jurisdiction as to the claim against them.

The

Court agrees that it does not have jurisdiction to entertain the
claim against the Clay Chapman Defendants.

Since the only

allegation relating to Clay or Chapman is in Count I, the Court
considers only that claim as to those defendants.9

8

Though it need not reach the issue, the Court also notes
that the Rooker-Feldman doctrine might cover some, if not all, of
Plaintiff’s claims against Governor Abercrombie and Director
Lopez since they were related to issues before the state court in
the Foreclosure Action. See supra Discussion Section I.B.
9

The Clay Chapman Defendants also argue that summary
judgment is warranted because the sole allegation against them is
that they harassed Plaintiff by calling him and sending him
summonses, but the issue is moot. [Mem. in Supp. of Clay Chapman
Motion at 6-7.] Their counsel attests that their only
involvement in the Foreclosure Action was to attempt to negotiate
a stipulation for dismissal with Plaintiff’s former counsel, and
that they then filed the motion, which ultimately dismissed the
case. [Martin Decl. at ¶¶ 3-4.] They reason that Plaintiff
cannot have a claim against them because all they did was help
him. Be that as it may, there is insufficient evidence in the
record – in part because of the thin allegations against Clay and
Chapman – to determine whether, in the light most favorable to
Plaintiff, there is a genuine issue of material fact as to
whether the Clay Chapman Defendants harassed him or invaded his
privacy. See Grenning v. Miller-Stout, 739 F.3d 1235, 1238 (9th
Cir. 2014) (“Summary judgment is appropriate when, with the
evidence viewed in the light most favorable to the non-moving
(continued...)
16

As the district court explained in the Otting dismissal
order, this Court is a court of limited jurisdiction.

See Otting

Dismissal Order at 4 (citing United States v. Marks, 530 F.3d
799, 810 (9th Cir. 2008)).

Thus, for this Court to hear

Plaintiff’s case, Plaintiff must show that he is asking this
Court to resolve an issue of federal law, or there is diversity
of citizenship between himself, and Clay and Chapman.10

See 28

U.S.C. §§ 1331 (granting jurisdiction to district court for “all
civil actions arising under the Constitution, laws, or treaties
of the United States”), 1332(a)(1) (granting jurisdiction for
“all civil actions 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”).

Plaintiff has not

made this showing.
First, Count I is clearly a state law claim insofar as
Plaintiff mentions neither the constitution nor any federal
statute and the claims are all in the nature of state law claims.

9

(...continued)
party, there are no genuine issues of material fact, so that the
moving party is entitled to a judgment as a matter of law.”
(citation and internal quotation marks omitted)).
10

There is a third potential basis for jurisdiction. Where
there are some federal claims at issue, the Court may also
exercise jurisdiction over state law claims that “form part of
the same case or controversy,” that is, where the claim arises
from the same set of facts. See 28 U.S.C. § 1367(a). But where,
as here, “the district court has dismissed all claims over which
it has original jurisdiction,” a court may decline supplemental
jurisdiction. See 28 U.S.C. § 1367(c)(3).
17

[First Amended Complaint at pg. 5, ¶ 3.]

He mentions

“harassment,” “invasion of privacy,” and “trespassing,” which are
all common law tort claims or, at best, state statutory claims.
[Id.]
Second, he does not make any claim to diversity of
citizenship, and the Court doubts that diversity exists.
Plaintiff alleges that he is a “citizen of the State of Hawaii,”
[id. at pg. 2, ¶ 1,] but makes no allegation as to the Clay
Chapman Defendants.

The Clay Chapman Defendants, for their part,

argue that they are residents and citizens of Hawai`i, [Mem. in
Supp. of Clay Chapman Defendants at 6,] and the Court has no
reason to doubt that assertion, particularly since their firm is
located in Honolulu.
Since this Court has no basis for jurisdiction over the
claims against the Clay Chapman Defendants, the Court GRANTS
their motion, and DISMISSES the First Amended Complaint as to
them.

The dismissal, however, is WITHOUT PREJUDICE.

See Akhtar

v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district court
should not dismiss a pro se complaint without leave to amend
unless it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.” (citation and
internal quotation marks omitted)).

Conceivably, Plaintiff could

amend his claims to state a claim against the Clay Chapman
Defendants, over which this Court would have jurisdiction.

18

But

to do so, he must allege enough facts to clearly show what he is
claiming, and that the Clay Chapman Defendants violated his
rights under the federal constitution or federal law.

Further,

he must do more than simply allege that his constitutional rights
were violated.

See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (holding that “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice” to state a claim for relief).
To the extent that the Clay Chapman Motion seeks
sanctions, it is DENIED.

While the claim may ultimately prove to

be frivolous, the Clay Chapman Defendants have made an
insufficient showing at this time.

If they so choose, they may

bring a separate motion showing their entitlement to the
requested fees at the appropriate time.
CONCLUSION
On the basis of the foregoing, Defendants the Honorable
Neil Abercrombie, Kealii Lopez, Former Director, Department of
Commerce & Consumer Affairs, and the Honorable Ronald Ibarra’s
Motion to Dismiss First Amended Complaint with Prejudice, filed
February 13, 2015, is HEREBY GRANTED in its entirety.

Pro se

Plaintiff Richard W. Caldarone’s First Amended Complaint is
HEREBY DISMISSED WITH PREJUDICE as to Defendants Governor
Abercrombie, Director Lopez, and Attorney General Louie.

The

Court DIRECTS the Clerk of Court to terminate them as parties.

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Defendants Gerald Clay and Robert Chapman’s Renewed
Motion to Dismiss and/or for Summary Judgment, filed February 3,
2015, is HEREBY GRANTED IN PART AND DENIED IN PART.

It is DENIED

insofar as it requests dismissal with prejudice and sanctions
against Plaintiff.

It is GRANTED in all other respects.

Therefore, Plaintiff’s First Amended Complaint is HEREBY
DISMISSED WITHOUT PREJUDICE as to Defendants Clay and Chapman.
Plaintiff shall have until June 1, 2015 to move the Court to file
his second amended complaint, if he so chooses.

The Court

emphasizes that Plaintiff may not add new parties, claims or
theories of liability, unless those additions are specifically
requested in the motion.

The Court CAUTIONS Plaintiff that if he

does not make a motion to amend by June 1, 2015, the Court will
DIRECT the Clerk’s Office to close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, APRIL 30, 2015

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

CALDERONE V. ABERCROMBIE; CIVIL 14-00523 LEK-BMK; ORDER GRANTING
IN PART AND DENYING IN PART DEFENDANTS GERALD CLAY AND ROBERT
CHAPMAN’S RENEWED MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT;
AND GRANTING DEFENDANTS THE HONORABLE NEIL ABERCROMBIE, KEALII
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LOPEZ, FORMER DIRECTOR, DEPARTMENT OF COMMERCE & CONSUMER
AFFAIRS, AND THE HONORABLE RONALD IBARRA’S MOTION TO DISMISS
FIRST AMENDED COMPLAINT WITH PREJUDICE

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