Sommers v. Okamoto et al

Filing 108

ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (WHICH THE COURT CONSTRUES AS A MOTION TO DISMISS), ECF NO. 79 . Summary of order:Plaintiff's Complaint is DISMISSED, with leave to ame nd. The court finds that Plaintiff fails to state a RICO claim; therefore, the Complaint is DISMISSED. Plaintiff is given leave until September 4, 2018 to file an amended complaint. Failure to file a Second Amended Complaint by September 4, 2018 will result in the automatic dismissal of this action. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 8/6/2018. (afc) WRITTEN ORDER follows hearing on Motion scheduled on 7/16/2018; Motion taken under advisement. Minutes of hearing: ECF 99 . COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants will be served on August 7, 2018 by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARIA D. SOMMERS,

Civ. No. 16-00558 JMS-KJM

Plaintiff,
vs.
LINDA KAY OKAMOTO; ROY
OKAMOTO; OKAMOTO REALTY,

ORDER REGARDING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (WHICH
THE COURT CONSTRUES AS A
MOTION TO DISMISS), ECF NO.
79

Defendants.

ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT (WHICH THE COURT CONSTRUES AS A MOTION TO
DISMISS), ECF NO. 79
I. INTRODUCTION
On October 14, 2016, pro se Plaintiff Maria D. Sommers (“Plaintiff”)
filed this civil action against Defendants Linda Kay Okamoto (“Kay”), Roy
Okamoto (“Roy”), and Okamoto Realty (collectively, “Defendants”) alleging
violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. § 1961, et seq. Compl., ECF No. 1. 1 On April 10, 2018, Defendants filed
the instant Motion for Summary Judgment (the “Motion”). ECF No. 79. Because
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On January 17, 2017, Plaintiff filed a two-page document titled “First Amended
Complaint” that amends only the amount of requested damages and punitive damages — treble
damages of ten million dollars and punitive damages of ten million dollars — against each
Defendant. ECF No. 22. Because Plaintiff is pro se, the court construes the two documents
together as Plaintiff’s Complaint.

the court determines that Defendants could have made the same arguments in a
Motion to Dismiss as opposed to a Motion for Summary Judgment, the court
construes Defendants’ Motion as a Motion to Dismiss. And so construed,
Plaintiff’s Complaint is DISMISSED, with leave to amend.
II. BACKGROUND
A.

Factual Background
As alleged in the Complaint, Kay owns Okamoto Realty and Roy is

Kay’s husband. Compl. ¶¶ 2-4. The Complaint alleges that on or about May 25,
2016, Roy ignored “NO trespassing” signs on Plaintiff’s property located at 1539
Pakali Place, Lanai City, Hawaii (the “subject property”), entered the home, and
sifted through Plaintiff’s tenant’s belongings, thereby allegedly committing
robbery, theft, and criminal trespassing. Id. ¶ 5. The Complaint alleges that
Plaintiff holds “the title deed to the house” and that she “gave no authorization for
defendants to enter her property.” Id. ¶¶ 6, 8. The Complaint further alleges that
Roy and Kay conspired to intimidate and harass Plaintiff’s tenant in an attempt to
force him to leave the premises, went to the tenant’s work place, offered the tenant
a “bribe” of $2,500 to vacate Plaintiff’s property, and threatened to change the
locks if the tenant refused to leave. Id. ¶¶ 6, 7. Roy and Kay allegedly “run[] the
only real estate enterprise, firm on the island” and use that enterprise to “bull[y]
people off their land with threats of foreclosures and forfeitures.” Id. ¶ 9. The
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Complaint alleges that by these actions, Defendants have committed civil RICO
violations.
Although not clear, Plaintiff appears to allege the following offenses
as RICO “racketeering” activities: 1) running a real estate business monopoly on
the island of Lanai; 2) extortion; 3) bribery; 4) breaking and entering; 5) trespass;
6) robbery; 7) intimidation; 8) bullying; and 9) conspiracy to commit fraud.2
B.

Procedural Background
Defendants filed the Motion on April 10, 2018. ECF No. 79. On

April 11, 2018, the court entered an order stating the Motion would be heard on
July 16, 2018 at 10:00 a.m., and that Plaintiff’s opposition to the Motion was due
by June 18, 2018. ECF No. 81. The court also provided Plaintiff with a notice to
pro se litigants, setting forth the general nature of a motion for summary judgment
and Plaintiff’s obligation under Federal Rule of Civil Procedure 56. Id.
Plaintiff filed no Opposition to the Motion. Defendants filed a Reply
on June 25, 2018. ECF No. 96. Plaintiff failed to appear for the July 16, 2018
hearing.

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Although Plaintiff also mentions the Fifth, Seventh, Ninth, and Fourteenth
Amendments to the United States Constitution in her Complaint, there is no state action alleged
that could give rise to a claim under 42 U.S.C. § 1983. See Tsao v. Desert Palace, Inc., 698 F.3d
1128 (9th Cir. 2012) (setting forth four tests to determine whether a private party’s actions can
be deemed state action under § 1983).
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III. STANDARDS OF REVIEW
Although brought as a Motion for Summary Judgment, the
appropriate vehicle to address the issues raised here is a Motion to Dismiss under
Federal Rule of Civil Procedure 12(b)(6). The court reaches this conclusion for
several reasons. First, the Motion fails to adequately address a glaring legal
deficiency in the RICO claim — many of the alleged offenses do not qualify (as a
matter of law) as racketeering activity under RICO. Second, the Motion fails to
address some of the offenses that do qualify as racketeering activities in the context
of specific allegations in the Complaint. Third, the specific offense that is
addressed (trespassing), does not qualify as a RICO racketeering activity. And
fourth, the Motion can be determined solely on the sufficiency of the Complaint’s
allegations.
“A court may convert a motion for summary judgment into a [Rule]
12(b)(6) motion to dismiss a complaint for failure to state a claim without notice to
either party.” Scafe v. Pataki, 2009 WL 2707317, at *6 (E.D.N.Y. Aug. 26, 2009)
(recognizing that “[c]onversion is appropriate when the court does not examine
extrinsic evidence, but instead bases its decision solely on the pleadings”); see also
Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968)
(“Where appropriate, a trial judge may dismiss for failure to state a cause of action
upon motion for summary judgment.”); Fields v. Wise Media, LLC, 2013 WL
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3812001, at *4 (N.D. Cal. July 19, 2013) (“Although defendant’s motion is styled
as a motion for summary judgment based on factual matters, . . . [a]s to arguments
defendant raises based solely on the sufficiency of the allegations in the complaint,
this order will consider those arguments as a motion to dismiss for failure to state a
claim.”); Pascual v. Aurora Loan Servs., LLC, 2012 WL 2355531, at *2 (D. Haw.
June 19, 2012) (construing summary judgment motion as a motion to dismiss);
Sutor v. FEMA, 2009 WL 2004375, at *3 n.4 (E.D. Pa. July 9, 2009); Cabrita
Point Dev., Inc. v. Evans, 2008 WL 5455405, at *6 (D.V.I. Dec. 31, 2008)
(dismissing at summary judgment a claim under the Rule 12(b)(6) standard
because an element was insufficiently pled).
Under Rule 12(b)(6), the court may dismiss a complaint for failure to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Dismissal
is appropriate where a complaint lacks a “cognizable legal theory” or if its factual
allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep’t of
Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court assumes that all
factual allegations are true and draws reasonable inferences from them. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Further, pursuant to Rule 12(b)(6), a court may dismiss a claim sua
sponte and without notice where the claimant “cannot possibly win relief.”
Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (internal
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quotation marks and citation omitted); Omar v. Sea-Land Serv., Inc., 813 F.2d 986,
991 (9th Cir. 1987); see also Barnard v. U.S. Gov’t, 635 F. App’x 388, 388 (9th
Cir. 2016) (determining that district court properly dismissed complaint sua sponte
because the “claims lacked any arguable basis in law or fact”); Baker v. Dir., U.S.
Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990) (holding that district court
may dismiss cases sua sponte pursuant to Rule 12(b)(6) without notice where
plaintiff could not prevail on complaint as alleged).
Because Plaintiff is proceeding pro se, the court construes her
pleadings liberally and affords her the benefit of any doubt. Akhtar v. Mesa, 698
F.3d 1202, 1212 (9th Cir. 2012); 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)). In giving liberal interpretation to a pro se
complaint, however, the court may not supply essential elements of a claim that
were not initially pled. Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135,
1140 (9th Cir. 2011).
IV. DISCUSSION
RICO provides a civil remedy, which specifies in part that “[a]ny
person injured in his business or property by reason of a violation of [18 U.S.C.

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§ 1962] may sue therefor in any appropriate United States district court and shall
recover threefold the damages he sustains and the cost of the suit[.]” 18 U.S.C.
§ 1964(c). “To prevail on a civil RICO claim, a plaintiff must prove that the
defendant engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity and, additionally, must establish that (5) the defendant caused
injury to plaintiff’s business or property.” Chaset v. Fleer/Skybox Int’l., LP, 300
F.3d 1083, 1086 (9th Cir. 2002) (citing 18 U.S.C. §§ 1962(c), 1964(c)); see also
Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 361 (9th Cir.
2005) (reiterating elements of a civil RICO claim). “A plaintiff must show that the
defendant’s RICO violation was not only a ‘but for’ cause of his injury, but that it
was a proximate cause as well.” Oki Semiconductor Co. v. Wells Fargo Bank, Nat.
Ass’n, 298 F.3d 768, 773 (9th Cir. 2002) (citing Holmes v. Sec. Inv’r Prot. Corp.,
503 U.S. 258, 268-69 (1992)) (other citation omitted). “Some ‘direct relationship’
between the injury asserted and the injurious conduct is necessary.” Id. (quoting
Holmes, 503 U.S. at 269).
“‘[T]o conduct or participate, directly or indirectly, in the conduct of
such enterprise’s affairs,’ § 1962(c), one must participate in the operation or
management of the enterprise itself.” Reves v. Ernst & Young, 507 U.S. 170, 185
(1993). “[O]ne must have some part in directing those affairs.” Id. at 179. An
“enterprise,” for purposes of RICO, includes “any individual, partnership,
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corporation, association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). A
“pattern” under RICO “requires at least two acts of racketeering activity.” 18
U.S.C. § 1961(5). “Racketeering activity” includes a list of various state and
federal offenses specifically enumerated in 18 U.S.C.
§ 1961.
As an initial matter, Plaintiff’s Complaint alleges the violation of
various laws that do not qualify as “racketeering activity” under § 1961. For
example, the following offenses (even if proven) cannot form the predicate
racketeering acts under RICO: (1) a violation of the Sherman Act relating to
monopolies; (2) breaking and entering; (3) trespass; (4) intimidation; and
(5) bullying. See 18 U.S.C. § 1961.
Further, Plaintiff cannot prove a state bribery offense3 against either
Kay or Roy Okamoto. Under state law, a person commits the offense of bribery
if “[t]he person confers, or offers or agrees to confer, directly or indirectly, any
pecuniary benefit upon a public servant with the intent to influence the public
servant’s vote, opinion, judgment, exercise of discretion, or other action in the
public servant’s official capacity.” Hawaii Revised Statutes (“HRS”) § 710-1040.
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A robbery, bribery, or extortion offense under state law punishable by imprisonment
for more than one year qualifies as racketeering activity under § 1961.
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“Public servant” is defined as “any officer or employee of any branch of
government, whether elected, appointed, or otherwise employed, and any person
participating as advisor, consultant, or otherwise, in performing a governmental
function, but the term does not include jurors or witnesses.” HRS §§ 710-1000;
710-1040(c). Roy Okamoto’s alleged offer of $2,500 to Plaintiff’s tenant was not
a bribe — the Complaint does not allege that Plaintiff’s tenant was a public official
or that the offer related to a public servant’s official capacity.
There is also clearly no plausible allegation of a robbery. According
to the Complaint, Roy Okamoto entered the house and “sifted through the tenant’s
belongings,” Compl. at 2, but there is no allegation that he used force, or
threatened to use force against another person. See HRS §§ 708-840 and 708-841.
Likewise, the Complaint fails to allege the basis for a state extortion
offense. The Complaint mentions extortion only once, and makes no attempt to
explain how any of the Defendants’ actions constitute extortion under HRS
§§ 707-764 to 707-766.
Finally, the Complaint provides no basis for the court to conclude that
Okamoto Realty was an enterprise, or that Defendants, through a pattern of
racketeering activity, caused injury to Plaintiff’s business or property.
///
///
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V. CONCLUSION
Based on the foregoing, the court finds that Plaintiff fails to state a
RICO claim; therefore, the Complaint is DISMISSED. Where a complaint is
dismissed, leave to amend generally is granted unless further amendment would be
futile. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir.
2011). Here, because of Plaintiff’s pro se status, the court finds that it is in the
interests of justice to permit her an opportunity to amend the Complaint to state a
RICO claim, if possible. See, e.g., Akhtar, 698 F.3d at 1212.
Plaintiff is given leave until September 4, 2018 to file an amended
complaint. If Plaintiff chooses to amend, she must comply with the Federal Rules
of Civil Procedure and the Local Rules for the United States District Court for the
District of Hawaii. And the amended complaint must be designated as a “Second
Amended Complaint.”
An amended complaint generally supersedes prior complaints. See
Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015); Local
Rule 10.3 (requiring that an amended complaint be complete in itself without
reference to any prior pleading). That is, an amended complaint may not
incorporate any part of the original Complaint, but rather, specific Defendants must
be renamed in the caption, and any specific allegations must be retyped or
rewritten in their entirety. See Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir.
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2012) (en banc) (“[C]laims dismissed with prejudice [need not] . . . be repled in
a[n] amended complaint to preserve them for appeal . . . [b]ut . . . claims [that are]
voluntarily dismissed [are] . . . waived if not repled.”).
Failure to file a Second Amended Complaint by September 4, 2018
will result in the automatic dismissal of this action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 6, 2018.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Sommers v. Okamoto, et al., Civ. No. 16-00558 JMS-KJM, Order Regarding Defendants’
Motion For Summary Judgment (Which the Court Construes as a Motion to Dismiss), ECF No.
79

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