Mariano et al v. Bank of Hawaii et al

Filing 85

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS BANK OF HAWAII, PETER HO, RAECHELLE HESTER, SUI LUM, AND MITZI A. LEE'S MOTION TO DISMISS COMPLAINT AND JEROME ADARNA'S JOINDER THEREIN; ORDER DECLINING TO EXERCISE SUPPLEMENTAL JURIS DICTION OVER ALL REMAINING CLAIMS re 71 , 73 - Signed by JUDGE SUSAN OKI MOLLWAY on 5/13/2016. "The court grants in part and denies in part the Rule 12(b)(6) motion to dismiss filed by Defendants Bank of Hawaii, P eter Ho, Raechelle Hester, Sui Lum, and Mitzi A. Lee and the joinder therein filed by Jerome Adarna. The court dismisses the Fair Housing Act and Equal Credit Opportunity Act claims on statute of limitations grounds. Because all claims providing th is court with federal question subject matter jurisdiction have been dismissed, the court declines to exercise supplemental jurisdiction over the remaining state-law claims. Those claims are dismissed without prejudice to their being asserted in state court. In referring to the reassertion of state-law claims in state court, this court is not suggesting that the state claims are valid or timely. With respect to the timeliness of reasserting the state-law claims dismissed by the present or der, this court points Plaintiffs to 28 U.S.C. § 1367, which (assuming there is no other time bar such as an already expired limitations period) provides that the limitations period "shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." "The Clerk of Court is directed to enter judgment in favor of Defendants 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). Elvira R. Mariano and Alejandro B. Mariano, Jr. served by first class mail at the address of record on May 13, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ELVIRA R. MARIANO; ALEJANDRO
B. MARIANO, JR.; and ESTATE
OF CRISOSTOMO R. RAGUINE,
deceased,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
BANK OF HAWAII; PETER HO;
)
RICK MURPHY; RAECHELLE
)
HESTER; SUN LUM; MITZI A.
)
LEE; LORRIN A. KAU; JEROME
)
ADARNA; DEPARTMENT OF
)
COMMERCE; el al.
)
)
Defendants.
)
)
)
)
_____________________________ )

CIVIL NO. 15-00087 SOM/BMK
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS
BANK OF HAWAII, PETER HO,
RAECHELLE HESTER, SUI LUM,
AND MITZI A. LEE’S MOTION TO
DISMISS COMPLAINT AND JEROME
ADARNA’S JOINDER THEREIN;
ORDER DECLINING TO EXERCISE
SUPPLEMENTAL JURISDICTION
OVER ALL REMAINING CLAIMS

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS BANK OF
HAWAII, PETER HO, RAECHELLE HESTER, SUI LUM, AND MITZI A. LEE’S
MOTION TO DISMISS COMPLAINT AND JEROME ADARNA’S JOINDER
THEREIN; ORDER DECLINING TO EXERCISE SUPPLEMENTAL
JURISDICTION OVER ALL REMAINING CLAIMS
I.

INTRODUCTION.
Plaintiffs Elvira R. Mariano, her husband Alejandro B.

Mariano, Jr., and the Estate of Crisostomo R. Raguine, deceased,
filed a Complaint against various Defendants arising out of a
state-court action that resulted in the foreclosure of the
mortgage on their home.

Plaintiffs name as Defendants: 1) Bank

of Hawaii; 2) its President, Peter Ho; 3) its former Vice
President, Rick Murphy; 4) two of its employees, Raechelle Hester
and Sui Lum; 5) its attorney, Mitzi A. Lee; 6) the court-

appointed foreclosure commissioner, Lorrin A. Kau, 7) the
purchaser of their home at the public auction, Jerome Adarna; and
8) the State of Hawaii Department of Commerce and Consumer
Affairs.

See ECF No. 1.
In the summer of 2015, Defendants filed a number of

motions seeking dismissal of the Complaint.

The court appointed

counsel to represent Alejandro Mariano on a pro bono basis for
the limited purpose of filing a memorandum as to whether he is
asserting any federal claim in the Complaint.

On November 20,

2015, counsel for Alejandro Mariano filed a memorandum in
opposition to a motion to dismiss for lack of subject matter
jurisdiction, identifying two federal question claims asserted in
the Complaint: 1) a violation of the Fair Housing Act, 42 U.S.C.
§ 3605(a), prohibiting discrimination on the basis of handicap
with respect to residential real estate transactions; and 2) a
violation of the Equal Credit Opportunity Act, 15 U.S.C. §1691,
prohibiting discrimination in loan transactions on the basis of
an applicant receiving public assistance.
On January 22, 2016, the court granted motions to
dismiss filed by Lorrin A. Kau and the Department of Commerce &
Consumer Affairs.

See ECF No. 68.

The court denied a motion to

dismiss for lack of subject matter jurisdiction filed by
Defendants Bank of Hawaii, Peter Ho, Raechelle Hester, Sui Lum,
and Mitzi A. Lee (collectively, “Bank of Hawaii”), agreeing that
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diversity jurisdiction was lacking, but ruling that the motion
had not addressed the claims identified by Alejandro Mariano’s
counsel after the motion was filed.

The court gave Bank of

Hawaii leave to file another motion that took into account
Alejandro Mariano’s identification of claims.
3, 2016, Bank of Hawaii filed such a motion.

Id.

On February

See ECF No. 71.

Defendant Jerome Adarna filed a Joinder in Bank of Hawaii’s
motion to dismiss.

See ECF No. 73.

Pursuant to Local Rule 7.2(d), the court declines to
hold a hearing on the present motion.

Although Plaintiffs did

not file any document that clearly opposed the motion, they did
file an “Additional Statements of Facts, Testimony & Other
Information” on May 6, 2016.

The court has reviewed that

document and has determined that the federal claims asserted in
the Complaint are barred by the applicable statutes of
limitations.

Accordingly, the court dismisses the federal

question claims.

Having dismissed the claims providing the court

with subject matter jurisdiction, the court declines to exercise
supplemental jurisdiction over the remaining state-law claims
asserted in this action.
II.

FACTUAL BACKGROUND.
Although Plaintiffs’ Complaint is unclear, the court

has gleaned from it the gist of what Plaintiffs say has occurred.

3

Plaintiffs purchased real property in Aiea, Hawaii,
which they financed through a loan from Bank of Hawaii.
was secured by a mortgage on the property.
# 2.

The loan

See ECF No. 1, PageID

Plaintiffs lived in the home for close to two decades.

See

id., PageID #s 6-7.
In 2009, Plaintiffs requested a loan modification from
Bank of Hawaii.

See id., PageID # 3.

Bank of Hawaii agreed to

temporarily modify the loan, reducing the amount of Plaintiffs’
monthly mortgage payments.

See id.

In June 2010, Plaintiffs

requested a permanent loan modification.

See id.

Rather than

approve the permanent loan modification, Bank of Hawaii initiated
foreclosure proceedings in state court in May 2011.

Id.

The court takes judicial notice of an action in state
court in which Bank of Hawaii, represented by its attorney,
Defendant Mitzi A. Lee, sued Plaintiffs and sought to foreclose
Bank of Hawaii’s mortgage liens on and security interests in
Plaintiffs’ home.
0994-05.

See Bank of Hawaii v. Mariano, Civil No. 11-1-

The state court determined that Bank of Hawaii was

entitled to foreclose on the mortgage, ordered that the home be
sold, and appointed Defendant Lorrin Kau as the court’s
foreclosure commissioner to sell the home.
PageID #s 120-24.

See ECF No. 22-3,

Defendant Jerome Adarna purchased the home at

a foreclosure auction.

See ECF No. 1, PageID #s 8, 11.

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Plaintiffs claim that Bank of Hawaii discriminated
against them with respect to their permanent loan modification
application “based on [their] social status because of the Nature
of [Alejandro Mariano’s] disability when [Elvira Mariano]
reported to them that [her] husband is schizophrenic, and also .
. . for receiving social security disability income.”
PageID # 8.

ECF No. 1,

Plaintiffs say that this discrimination was the

reason Bank of Hawaii filed the state-court foreclosure action in
May 2011.

Id.; see also ECF No. 61, PageID # 308 (clarifying the

federal question claims asserted in the Complaint).
III.

STANDARD.
The standard for a motion to dismiss under Rule

12(b)(6) of the Federal Rules of Civil Procedure was set forth in
the court’s order of January 22, 2016.
357-58.
IV.

See ECF No. 68, PageID #s

That standard is incorporated herein by reference.
ANALYSIS.
This court earlier ruled that it lacks diversity

jurisdiction over the claims asserted in the Complaint, but also
ruled that the court has subject matter jurisdiction over the
claims based on federal question jurisdiction, leaving for
further adjudication whether viable federal question claims are
asserted in the Complaint.

See ECF No. 68, PageID #s 361-62.

Bank of Hawaii has moved to dismiss the only federal
question claims asserted in the Complaint on statute of

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limitations grounds.

This court agrees that, on the face of the

Complaint, the allegations demonstrate that the applicable
statutes of limitations bar the federal question claims.

The

court therefore dismisses the federal claims under Rule 12(b)(6)
of the Federal Rules of Civil Procedure.

See Von Saher v. Norton

Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir.
2009).

Because the court dismisses the claims based on the

applicable statutes of limitations, the court does not reach the
issue of whether, absent the time bar, Plaintiffs’ assertions
would state any viable federal claim.

To the extent any state-

law claims remain, the court declines to exercise supplemental
jurisdiction over them.
A.

The Fair Housing Act Claim is Time-Barred.

In his filing of November 20, 2015, Alejandro Mariano
identifies two claims that he is asserting that arise under
federal law.

See ECF No. 61, PageID # 312.

In the first,

Alejandro Mariano asserts that Bank of Hawaii discriminated
against him on the basis of his handicap (schizophrenia) with
respect to a residential real estate transaction, in violation of
42 U.S.C. § 3605(a).

Id.

Section 3605(a) states:

It shall be unlawful for any person or other
entity whose business includes engaging in
residential real estate-related transactions
to discriminate against any person in making
available such a transaction, or in the terms
or conditions of such a transaction, because
of race, color, religion, sex, handicap,
familial status, or national origin.
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Id.
Under § 3613(a)(1)(A), any civil action must be brought
“not later than 2 years after the occurrence . . . of an
allegedly discriminatory housing practice.”

See Garcia v.

Brockway, 526 F.3d 456, 461 (9th Cir. 2008) (“an aggrieved person
must bring the lawsuit within two years of either ‘the occurrence
. . . of an alleged discriminatory housing practice’” (quoting 42
U.S.C. § 3613(a)(1)(A))).
Alejandro Mariano says that Bank of Hawaii
discriminated against him with respect to the loan modification
process.

He claims that, because of his schizophrenia, Bank of

Hawaii filed the state-court foreclosure Complaint in May 2011,
rather than complete the loan modification process.
1, PageID #s 3, 8.

See ECF No.

Given that claim, the two-year limitations

period began to run on his Fair Housing Act claim in May 2011.
Because the Complaint was not filed until March 19, 2015, the
claim is barred by the two-year limitations period unless it is
equitably tolled.

See Garcia, 526 F.3d at 465.

In responding to

the motion to dismiss, Plaintiffs point to no allegations or
circumstances that would justify equitably tolling the
limitations period.

Alejandro Mariano’s Fair Housing Act claim

is therefore time-barred.

Dismissal of the Fair Housing Act

claim is proper because Plaintiffs can prove no set of facts

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establishing the timeliness of the claim.

See Von Saher, 592

F.3d at 969.
In dismissing the Fair Housing Act claim based on the
applicable limitations period, the court does not rule on whether
Mariano, but for the time bar, has asserted a viable Fair Housing
Act claim.

Instead, the court rules only that any possible claim

was asserted too late.
B.

The Equal Credit Opportunity Act Claim is TimeBarred.

Alejandro Mariano also asserts a claim under the Equal
Credit Opportunity Act, 15 U.S.C. § 1691, which prohibits
discrimination in loan transactions on the basis of an
applicant’s receipt of public assistance.

Under § 1691(a)(2), it

is “unlawful for any creditor to discriminate against any
applicant, with respect to any aspect of a credit transaction . .
. because all or part of the applicant’s income derives from any
public assistance program.”

Alejandro Mariano claims that Bank

of Hawaii discriminated against him in the loan modification
process because Alejandro Mariano receives social security
disability benefits.

Mariano says that the reason the bank

initiated foreclosure proceedings in state court in May 2011
instead of proceeding with a permanent loan modification was that
he was receiving federal financial assistance.
PageID #s 3, 8.

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See ECF No. 1,

Under 15 U.S.C. § 1691e(f), claims for violations of
§§ 1691 to 1691f are subject to a two-year statute of
limitations.

See also Ramsdell v. Bowles, 64 F.3d 5, 9 (1st Cir.

1995) (applying two-year statute of limitations to bar claims).
Like Plaintiffs’ Fair Housing Act claim, the Equal Credit
Opportunity Act claim was not timely asserted.

The Equal Credit

Opportunity Act claim accrued at the latest in May 2011, when
Bank of Hawaii filed the state-court foreclosure action rather
than approving a permanent loan modification.

Because the

Complaint was not filed until March 19, 2015, and because
Plaintiffs point to no allegations or circumstances that might
equitably toll the limitations period, the Equal Credit
Opportunity Act claim is time-barred.

Dismissal of the Equal

Credit Opportunity Act claim is proper because Plaintiffs can
prove no set of facts establishing the timeliness of the claim.
See Von Saher, 592 F.3d at 969.
In dismissing the Equal Credit Opportunity Act claim on
limitations grounds, the court does not reach the merits of that
claim, ruling only that any possible claim is untimely.
V.

THE COURT DECLINES TO EXERCISE SUPPLEMENTAL
JURISDICTION OVER THE REMAINING STATE-LAW CLAIMS.
Supplemental jurisdiction over state claims exists when

a federal claim is sufficiently substantial to confer federal
jurisdiction, and there is “a common nucleus of operative fact
between the state and federal claims.”
9

Brady v. Brown, 51 F.3d

810, 816 (9th Cir. 1995) (citing Gilder v. PGA Tour, Inc., 936
F.2d 417, 421 (9th Cir. 1991)); see also 28 U.S.C. § 1367.

This

court may decline to exercise supplemental jurisdiction over a
state law claim if: (1) the claim raises a novel or complex issue
of state law; (2) the state law claim substantially predominates
over the claim or claims over which the district court has
original jurisdiction; (3) the district court has dismissed all
claims over which it has original jurisdiction; or (4) in
exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

28 U.S.C. § 1367.

Supplemental jurisdiction is a doctrine of discretion,
not of a plaintiff’s right.

City of Chicago v. Int’l College of

Surgeons, 522 U.S. 156, 172 (1997); United Mine Workers of Amer.
v. Gibbs, 383 U.S. 715, 726 (1966); Maltzman v. Friedman, 103
F.3d 139 (9th Cir. 1996) (“the doctrine of supplemental
jurisdiction is a flexible one, giving a district court the power
to exercise supplemental jurisdiction over a claim and the
discretion whether to exercise such jurisdiction”).

When, as

here, “the federal claims are dismissed before trial, even though
not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.”

Gibbs, 383 U.S. at 726.

Although

the Supreme Court later noted that such a dismissal is not “a
mandatory rule to be applied inflexibly in all cases,” it also
recognized that, “in the usual case in which all federal-law

10

claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine--judicial
economy, convenience, fairness, and comity--will point toward
declining to exercise jurisdiction over the remaining state-law
claims.”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

(1988)
Because all of Plaintiffs’ federal claims have been
dismissed, the court declines to exercise supplemental
jurisdiction over their remaining state-law claims.
VI.

CONCLUSION.
The court grants in part and denies in part the Rule

12(b)(6) motion to dismiss filed by Defendants Bank of Hawaii,
Peter Ho, Raechelle Hester, Sui Lum, and Mitzi A. Lee and the
joinder therein filed by Jerome Adarna.

The court dismisses the

Fair Housing Act and Equal Credit Opportunity Act claims on
statute of limitations grounds.

Because all claims providing

this court with federal question subject matter jurisdiction have
been dismissed, the court declines to exercise supplemental
jurisdiction over the remaining state-law claims.

Those claims

are dismissed without prejudice to their being asserted in state
court.

In referring to the reassertion of state-law claims in

state court, this court is not suggesting that the state claims
are valid or timely.

With respect to the timeliness of

reasserting the state-law claims dismissed by the present order,

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this court points Plaintiffs to 28 U.S.C. § 1367, which (assuming
there is no other time bar such as an already expired limitations
period) provides that the limitations period “shall be tolled
while the claim is pending [in federal court] and for a period of
30 days after it is dismissed unless State law provides for a
longer tolling period.”
The Clerk of Court is directed to enter judgment in
favor of Defendants and to close this case.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, May 13, 2016.

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

Mariano, et al. v. Bank of Hawaii, et al., Civil No. 15-00087 SOM/BMK; ORDER GRANTING
IN PART AND DENYING IN PART DEFENDANTS BANK OF HAWAII, PETER HO, RAECHELLE HESTER, SUI
LUM, AND MITZI A. LEE'S MOTION TO DISMISS COMPLAINT AND JEROME ADARNA'S JOINDER
THEREIN; ORDER DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER ALL REMAINING
CLAIMS

12