Hawaii FIT Four LLC v. Ford

Filing 90

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND/OR IN THE ALTERNATIVE MOTION TO DISMISS FOR LACK OF JURISDICTION re 50 MOTION to Dismiss for Lack of Jurisdiction filed by Shayne Robert Ford.. Signed by JUDGE LESLIE E. KOBAYASHI on 10/30/2017. Ford's Motion for Summary Judgment and/or in the Alternative Motion to Dismiss for Lack of Jurisdiction, filed May 27, 2017, is HEREBY DENIED, WITHOUT PREJUDICE. (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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAWAII FIT FOUR LLC,

)
)
Plaintiff,
)
)
vs.
)
)
SHAYNE ROBERT FORD,
)
)
)
Defendant.
_____________________________ )

CIVIL 16-00607 LEK-RLP

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND/OR
IN THE ALTERNATIVE MOTION TO DISMISS FOR LACK OF JURISDICTION
Before the Court is Defendant/Counterclaimant/ThirdParty Plaintiff Shayne Robert Ford’s (“Ford”) Motion for Summary
Judgment and/or in the Alternative Motion to Dismiss for Lack of
Jurisdiction (“Motion”), filed on May 27, 2017.

[Dkt. no. 50.]

Plaintiff/Counterclaim Defendant Hawaii FIT Four LLC (“Hawaii
FIT”) filed its memorandum in opposition on August 23, 2017, and
Ford filed his reply on August 30, 2017.

[Dkt. nos. 71, 73.]

This matter came on for hearing on September 13, 2017.

On

September 28, 2017, this Court issued an entering order
containing an outline of its decision on the Motion (“9/28/17 EO
Outline”).

[Dkt. no. 83.]

9/28/17 EO Outline.

The instant Order supersedes the

For the reasons set forth below, Ford’s

Motion is hereby denied, without prejudice to the filing of a
motion for summary judgment.

BACKGROUND
Hawaii FIT filed this action on November 10, 2016,
based on diversity jurisdiction.

[Complaint at ¶ 4.]

The

Complaint alleges that:
2.
Hawaii FIT Four is a Hawaii limited
liability company. The sole member and manager of
Hawaii FIT Four is Green Island FIT LLC (“Green
Island”), a Hawaii limited liability company.
Green Island has seven members; six are citizens
of Hawaii and one is a citizen of California.
3.

Ford is a citizen of Oregon.

On February 2, 2017, Ford filed his Answer to Complaint, Filed
November 10, 2016 (“Answer”), which included a Counterclaim and a
Third-Party Complaint against Green Island.

[Dkt. no. 16.]

The

pleadings’ factual allegations and claims are summarized in the
Order Ruling on the Parties’ Motions Brought Pursuant to Fed. R.
Civ. P. 12, filed June 27, 2017 (“6/27/17 Order”).

[Dkt. no. 58

at 2-12.]
The 6/27/17 Order: dismissed Counts I, IV, V, and VI of
the Counterclaim without prejudice; dismissed the Third-Party
Complaint without prejudice; and denied Ford’s motion seeking
judgment on the pleadings on the merits of the Complaint.1

Ford

was allowed to file a motion seeking leave to file an amended
counterclaim and an amended third-party complaint.

1

[6/27/17

Hawaii FIT and Green Island filed their motions to dismiss
on February 23, 2017. [Dkt. nos. 24, 26.] Ford filed his motion
for judgment on the pleadings on March 15, 2017. [Dkt. no. 30.]
2

Order at 39-40.]
leave.

On July 7, 2017, Ford filed the motion for

[Dkt. no. 61.]

On August 8, 2017, the magistrate judge

issued an order granting Ford leave to file his proposed amended
counterclaim and denying leave to file the proposed amended
third-party complaint.

[Dkt. no. 68.]

Counterclaim on August 14, 2017.

Ford filed his Amended

[Dkt. no. 69.]

Ford’s Motion presents both a facial attack on the
sufficiency of the jurisdictional allegations in the Complaint
and a factual attack on the truth of the jurisdictional
allegations.

In his factual attack, Ford asserts that there is

no diversity of citizenship in this case because he is a Hawai`i
citizen, not an Oregon citizen as alleged in the Complaint.
DISCUSSION
I.

Preliminary Issues
A.

Timing of the Motion
At the outset, this Court must address the timing of

the Motion.

It is true that “[o]bjections to subject-matter

jurisdiction . . . may be raised at any time,” even by a party
that has lost at trial and “even if the party had previously
acknowledged the trial court’s jurisdiction.”

Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 434-35 (2011).

If

jurisdiction is found to be lacking in such circumstances, the
case must be dismissed and “many months of work on the part of
the attorneys and the court may be wasted.”
3

Id. at 435.

In

addition, it “may unfairly prejudice litigants.”

Id. at 434.

Thus, Ford’s jurisdictional challenge must be addressed, even
though he has actively litigated this action for a significant
amount of time by, inter alia, filing a Counterclaim and ThirdParty Complaint, seeking judgment on the pleadings on the
Complaint, and filing an amended counterclaim.2
Even if jurisdiction is ultimately lacking, the
circumstances of this case may warrant sanctions pursuant to this
Court’s inherent authority, on other grounds.

See, e.g., State

Farm Fire & Cas. Ins. Co. v. Ramirez, Civil No. 08–00557 SOM/LEK,
2011 WL 1135103, at *1 (D. Hawai`i Mar. 24, 2011) (concluding
that the district court had jurisdiction to consider the
plaintiff’s motion for sanctions under the court’s inherent
authority, even though the case had been dismissed for lack of
jurisdiction, but ruling that sanctions were not warranted under
the circumstances of the case).

In the memorandum in opposition

and at the hearing on the Motion, Hawaii FIT urged this Court to
award sanctions against Ford and/or his counsel.

2

Because this

Ford did not file the instant Motion until the day after
this Court issued inclinations on Hawaii FIT’s and Green Island’s
motions to dismiss. See EO: Court’s Inclination Regarding
Motions to Dismiss Scheduled for Hearing on May 30, 2017, filed
5/26/17 (dkt. no. 49). Ford’s motion for judgment on the
pleadings was also pending when he filed the instant Motion.
Ford filed his motion seeking leave to file his amended
counterclaim and amended third-party counterclaim, as well as his
Amended Counterclaim, while the instant Motion was pending.
[Dkt. nos. 61, 69.]
4

Court cannot determine whether sanctions are warranted based
solely on the filings related to the Motion, Hawaii FIT’s request
for sanctions is denied without prejudice to the filing of a
motion for sanctions.

The motion for sanctions must specify the

sanctions sought, as well as the legal authority supporting the
sanctions sought.
B.

Failure to File a Concise Statement of Facts
Although Ford seeks summary judgment in his favor based

on the alleged lack of jurisdiction, he failed to file a concise
statement of material facts, as required by Local Rule 56.1.
Because of Ford’s failure to follow the applicable rules, this
Court will only consider the Motion as a motion to dismiss.

To

the extent Ford seeks summary judgment, the Motion is denied.
The parties are reminded that any motion for summary judgment
must comply with the requirements of Local Rule 56.1.
C.

Ford’s Exhibit F
To the extent that Ford’s motion to dismiss presents a

factual challenge to the Complaint’s jurisdictional allegations,
materials beyond the Complaint can be considered.

See Savage v.

Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir.
2003).

In considering the parties’ written submissions, the

applicable standard is equivalent to the summary judgment
standard.

See Trentacosta v. Frontier Pac. Aircraft Indus.,

Inc., 813 F.2d 1553, 1559 (9th Cir. 1987).
5

Thus, only admissible

evidence can be considered.

Cf. Orr v. Bank of Am., NT & SA, 285

F.3d 764, 773 (9th Cir. 2002) (“A trial court can
only consider admissible evidence in ruling on a motion for
summary judgment.”).
The copies of Ford’s 2015 and 2016 state and federal
tax returns that are included in Exhibit F to the reply (“the
Returns”), [dkt. nos. 73-20 & 73-21,] are inadmissible.3

The

Returns are not signed by either Ford or the party who prepared
them on his behalf; Ford has not submitted any documentation from
a government entity showing that the Returns are true and
accurate copies of the tax returns filed with that entity; and
the Declaration of Shayne Robert Ford attached to the reply
(“Ford Reply Declaration”) does not contain sufficient
information to establish that the Returns are admissible.

This

Court therefore has not considered the Returns in ruling on the
Motion.
II.

Applicable Standards
Fed. R. Civ. P. 12(b)(1) authorizes a district court to

dismiss an action for “lack of subject matter jurisdiction[.]”
“Once challenged, the party asserting subject matter jurisdiction

3

Although the issues raised at the hearing related to
Ford’s “Ex Party [sic] Application to Supplement Record and for
Extension of Time to File Complete Copy of Exhibit F of Reply
[Dkt 73],” [filed 9/1/17 (dkt. no. 75),] are concerning, they did
not contribute to the ruling that Ford’s Exhibit F is
inadmissible.
6

has the burden of proving its existence.”
States, 586 F.3d 683, 685 (9th Cir. 2009).

Robinson v. United
This district court

has stated:
A Rule 12(b)(1) motion may be either facial
(attacking the sufficiency of the complaint’s
allegations to invoke federal jurisdiction) or
factual (disputing the truth of the allegations of
the complaint). Safe Air for Everyone [v. Meyer],
373 F.3d [1035,] 1039 [(9th Cir. 2004)].
In a facial attack, the court may dismiss a
complaint when its allegations are insufficient to
confer subject matter jurisdiction, and a
complaint’s factual allegations 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). But in a factual attack “[w]here the
jurisdictional issue is separable from the merits
of the case, the judge may consider the evidence
presented with respect to the jurisdictional issue
and rule on that issue, resolving factual disputes
if necessary.” Thornhill Publ’g Co., Inc. v. Gen.
Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.
1979). In such case, “no presumptive truthfulness
attaches to plaintiff’s allegations, and the
existence of disputed material facts will not
preclude the trial court from evaluating for
itself” the existence of subject matter
jurisdiction. Id.
Further, where “the jurisdictional issue and
substantive issues are so intertwined that the
question of jurisdiction is dependent on the
resolution of factual issues going to the merits,
the jurisdictional determination should await a
determination of the relevant facts on either a
motion going to the merits or at trial.”
Augustine v. United States, 704 F.2d 1074, 1077
(9th Cir. 1983). That is, if “the jurisdictional
issue and substantive claims are so intertwined
that resolution of the jurisdictional question is
dependent on factual issues going to the merits,
the district court should employ the standard
applicable to a motion for summary judgment.”
7

Autery v. United States, 424 F.3d 944, 956 (9th
Cir. 2005) (quoting Rosales v. United States, 824
F.2d 799, 803 (9th Cir. 1987)). “The Court ‘must
therefore determine, viewing the evidence in the
light most favorable to the nonmoving party,
whether there are any genuine issues of material
fact.’” Id. (quoting Suzuki Motor Corp. v.
Consumers Union of U.S., Inc., 330 F.3d 1110, 1131
(9th Cir. 2003) (en banc)); see also Roberts v.
Corrothers, 812 F.2d 1173, 1777 (9th Cir. 1987)
(“In such a case, the district court assumes the
truth of allegations in a complaint . . . unless
controverted by undisputed facts in the record.”).
Bishop v. United States, Civ. No. 16-00248 JMS-KSC, 2017 WL
1381653, at *7 (D. Hawai`i Apr. 13, 2017) (alterations in
Bishop).

In addition, in a factual attack,
once the party bringing the Rule 12(b)(1) motion
presents evidence or other affidavits before the
court challenging jurisdiction, the party opposing
the motion must present affidavits or other
evidence necessary to satisfy its burden of
establishing subject matter jurisdiction. Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004). Furthermore, when considering a
Rule 12(b)(1) motion to dismiss, the district
court may “hear evidence regarding jurisdiction”
and “resolve factual disputes where necessary.”
Robinson v. U.S., 586 F.3d 683, 685 (9th Cir.
2009).

Jason E. ex rel. Linda E. v. Dep’t of Educ., Civ. No. 12-00354
ACK-BMK, 2014 WL 6609213, at *5 (D. Hawai`i Nov. 20, 2014).
“[I]f a plaintiff’s proof (of jurisdictional
facts) is limited to written materials, it is
necessary only for these materials to demonstrate
facts which support a finding of jurisdiction in
order to avoid a motion to dismiss.’” Societe de
Conditionnement en Aluminium v. Hunter Eng’g Co.,
Inc., 655 F.2d 938, 942 (9th Cir. 1981) (quoting
Data Disc, Inc. v. Systems Tech. Assocs., Inc.,
557 F.[2]d 1280, 1285 (9th Cir. 1977)). The Ninth
Circuit has described this standard as equivalent
8

to the summary judgment standard. See Trentacosta
v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d
1553, 1559 (9th Cir. 1987) (“The requirement that
the nonmoving party present evidence outside his
pleadings in opposition to a motion to dismiss for
lack of subject matter jurisdiction is the same as
that required under Rule 56(e) that the nonmoving
party to a motion for summary judgment must set
forth specific facts, beyond his pleadings, to
show that a genuine issue of material fact
exists.”) (citations omitted). Generally, a court
has discretion to resolve factual disputes on a
factual motion to dismiss for lack of subject
matter jurisdiction. See St. Clair v. City of
Chico, 880 F.2d 199, 201 (9th Cir. 1989) (“The
district court obviously does not abuse its
discretion by looking to this extra-pleading
material in deciding the issue, even if it becomes
necessary to resolve factual disputes.”).
Nino v. United States, No. 13cv0469 WQH(BGS), 2015 WL 5032644, at
*4 (S.D. Cal. Aug. 25, 2015) (some alterations in Nino) (footnote
omitted).
III. Ford’s Facial Attack
Ford argues that the Complaint’s factual allegations
regarding his citizenship for diversity purposes are insufficient
on their face.

28 U.S.C. § 1332(a) states, in pertinent part:

“The district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is
between– (1) citizens of different States.”

Diversity is

determined by the citizenship of the parties at the time
complaint is filed.

Smith v. Sperling, 354 U.S. 91, 93, n.1

(1957).

9

Section 1332 “speaks of citizenship, not of residency.”
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
To be a citizen of a state, a natural person must
first be a citizen of the United States.
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S.
826, 828, 109 S. Ct. 2218, 104 L. Ed. 2d 893
(1989). The natural person’s state citizenship is
then determined by her state of domicile, not her
state of residence. A person’s domicile is her
permanent home, where she resides with the
intention to remain or to which she intends to
return. See Lew v. Moss, 797 F.2d 747, 749 (9th
Cir. 1986). A person residing in a given state is
not necessarily domiciled there, and thus is not
necessarily a citizen of that state. See, e.g.,
Weible v. United States, 244 F.2d 158, 163 (9th
Cir. 1957) (“Residence is physical, whereas
domicile is generally a compound of physical
presence plus an intention to make a certain
definite place one’s permanent abode, though, to
be sure, domicile often hangs on the slender
thread of intent alone, as for instance where one
is a wanderer over the earth. Residence is not an
immutable condition of domicile.”).
Id.

Ford contends that the Complaint’s jurisdictional

allegations are insufficient because Hawaii FIT did not allege
that he is a United States citizen and he is domiciled in Oregon.
In support of its allegation that there is diversity
between it and Ford, Hawaii FIT alleges that Ford is an Oregon
citizen.

[Complaint at ¶¶ 3-4.]

Based on controlling case law,

to be a citizen of Oregon for purposes of diversity jurisdiction,
Ford must also be a citizen of the United States.

The fact that

the Complaint does not expressly allege that Ford is a citizen of
United States does not render the jurisdictional allegations
insufficient.

Cf. Berkeley Research Grp., LLC v. United Potato
10

Growers of Am., Inc., No. C 16-07205 WHA, 2017 WL 952680, at *1
(N.D. Cal. Mar. 13, 2017) (“Citizenship, for diversity
jurisdiction, is synonymous with an individual’s domicile.”).
For purposes of Ford’s facial attack, the factual allegations of
the Complaint are assumed to be true and are construed in the
light most favorable to Hawaii FIT.
Contractors, 96 F.3d at 1207.

See Fed’n of African Am.

So construed, the factual

allegations of the Complaint are sufficient to support of the
asserted diversity jurisdiction.

To the extent that it raises a

facial challenge, Ford’s Motion is denied.
IV.

Ford’s Factual Attack
In his factual attack, Ford asserts that the evidence

in the record shows that, at the time the Complaint was filed, he
was a citizen of Hawai`i.

Ford states that he “moved from

Portland in the State of Oregon and established residency in the
State of Hawaii” in 1995.
(“Ford Decl.”) at ¶ 3.]

[Motion, Decl. of Shayne Robert Ford

He asserts that, “[s]ince prior to 1995,

[he has] not been a resident of the State of Oregon, but [has]
traveled to Oregon for family and business matters.”

[Id. at

¶ 4.]
Domicile may be changed by being physically
present in the new jurisdiction with the intent to
remain there. See Mississippi Band [of Choctaw
Indians], 490 U.S. [30,] 48, 109 S. Ct. 1597
[(1989)]; Kanter, 265 F.3d at 857. Thus, domicile
includes a subjective as well as an objective
component, although the subjective component may
be established by objective factors.
11

Gaudin v. Remis, 379 F.3d 631, 636-37 (9th Cir. 2004).
The court considers a number of factors (with no
single factor controlling) in determining a
person’s domicile: “current residence, voting
registration and voting practices, location of
personal and real property, location of brokerage
and bank accounts, location of spouse and family,
membership in unions and other organizations,
place of employment or business, driver’s license
and automobile registration, and payment of
taxes.” See Lew v. Moss, 797 F.2d 747, 750 (9th
Cir. 1986).
Martin v. Ampco Sys. Parking, Civil No. 12-00598 SOM/RLP, 2013 WL
5781311, at *6 (D. Hawai`i Oct. 24, 2013), reconsideration
granted in part on other grounds, 2013 WL 6624124 (Dec. 16,
2013).
Ford states that, since December 2011, he has resided
with his “significant other, Cherica Jackson,” at a home in
Kailua (“Kailua House”), which he has owned since 2003.
Decl. at ¶¶ 7-8.]

[Ford

He asserts that, at the time the Complaint was

filed, he did not intend to reside in Oregon, or anywhere else
besides Hawai`i.

[Id. at ¶¶ 5, 31.]

However, Hawaii FIT has

submitted evidence that:
-Ford owns a residence in West Linn, Oregon (“Oregon Property”);
[Mem. in Opp., Decl. of Michelle N. Comeau (“Comeau Decl.”)
at ¶¶ 5-6, Exh. 11 (Lexis Personal Report, accessed on
8/23/17, showing that Ford owns a home in West Linn,
Oregon), Exh. 12 (Lexis Personal Reports, accessed 8/23/17,
for Ford’s property assessments in Oregon and Washington);]
and
-Ford’s bank charges show that he split his time almost evenly
between Hawai`i and Oregon in 2015 and 2016, [Comeau Decl.
at ¶ 12, Exh. 18 (various documents Ford produced on 8/8/17)
at Ford 000360, Ford 000452-83, Ford 000601-34, Ford 00064212

55].
In November 2016, Ford’s sister and mother resided in
Oregon.

[Ford Decl. at ¶¶ 32-34.]

Oregon before he passed away.

Ford’s father also resided in

See Reply, Decl. of Cherica

Jackson (“Jackson Decl.”) at ¶ 6 (describing Ford’s visits to
Oregon to spend time with his father during his illness and to
assist his family after his father’s death).4
Ford is not registered to vote in Oregon, and he has
been registered to vote in Hawai`i since 2000.

[Ford Decl. at

¶¶ 13-14, Exh. B (copy of Certificate issued by the Office of the
City Clerk, City and County of Honolulu, dated 5/23/17, showing
Ford’s registration date).]

Ford does not have an Oregon

driver’s license, and he has held a Hawai`i driver’s license
since June 19, 2012.

[Ford Decl. at ¶¶ 16-17, Exh. C (copy of

Ford’s Hawai`i driver’s license).]

He was employed in Hawai`i

from 1996 until 2007 and, from approximately 2009 to the present,
he has managed rental properties, which are all located in
Hawai`i, except for one.

[Ford Decl. at ¶¶ 19-20, Exh. D (letter

dated 8/15/16 from the State of Hawai`i Department of Taxation
with his “General Excise Tax License for Hawai`i Tax ID
Number”).]

According to Ford, he does not live, and has not

4

Ford could have presented the Jackson Declaration with the
Motion. Ford is cautioned that any belatedly filed materials in
the future will be disregarded. Cf. Local Rule LR7.4 (“Any
argument raised for the first time in the reply shall be
disregarded.”).
13

lived, at the Oregon Property, which “is solely used as an
investment/rental property.”

[Ford Decl. at ¶ 29.]

At the time the Complaint was filed, Ford had an
inactive real estate sales license.
Exh. E.]

[Ford Decl. at ¶ 22,

Hawaii FIT has presented evidence that Ford had hunting

and fishing licenses in Oregon in 2008 and 2010, and the licenses
state that Ford’s home state is Oregon.

[Comeau Decl. at ¶ 8,

Exh. 14 (Lexis Personal Report, accessed 8/23/17, showing Ford’s
hunting and fishing licenses in Oregon).]

In addition, Ford

bought a boat in 2010, which he registered in Oregon, using a
Scappoose, Oregon address.

[Comeau Decl. at ¶ 9, Exh. 15 (Lexis

Personal Report, accessed 8/23/17, showing Ford’s boat
registration information).]
There are disputed issues about Ford’s residence at the
time the Complaint was filed, and it is possible that he had more
than one residence.

Accord Strabala v. Zhang, 318 F.R.D. 81, 97

(N.D. Ill. 2016) (“[A] person can have multiple residences but
only one domicile.

‘The very meaning of domicil [sic] is the

technically pre-eminent headquarters that every person is
compelled to have in order that certain rights and duties that
have been attached to it by the law may be determined.

In its

nature it is one[.]’” (quoting Williamson v. Osenton, 232 U.S.
619, 34 S. Ct. 442, 58 L. Ed. 758 (1914))).

The current

residence factor is therefore inconclusive.

Ford also had

14

significant family connections in both Hawai`i in Oregon, owned
real property in both places, and his work involved property
management in both places.

Ford has presented evidence that he

is registered to vote in Hawai`i, and not in Oregon, but he does
not state that he actually voted in Hawai`i prior to the filing
of the Complaint.

See Ford Decl. at ¶¶ 13-14.

Ford’s Hawai`i

driver’s license, real estate license, banking accounts, and
utility bills weigh in favor of a finding of domicile in
Hawai`i.5

Further, Ford has owned personal property and held

recreational licenses in Oregon in 2008 and 2010.

Although those

facts do not address the time period when the Complaint was
filed, they cast doubt upon Ford’s statement that he has not been
an Oregon resident since 1995.

See Ford Decl. at ¶ 4.

Hawaii FIT has the burden of establishing federal
jurisdiction over its claims.

See Robinson, 586 F.3d at 685.

While factual disputes relevant to a factual attack on
jurisdiction can be resolved in a motion to dismiss, id.,
disputes that turn on credibility determinations cannot, Data
Disc, 557 F.2d at 1284.
Data Disc established the standard for factual
Rule 12(b)(2) motions to dismiss for lack of

5

Exhibit 18 to the Comeau Declaration includes, inter alia:
bank statements from American Savings Bank in Honolulu, Hawai`i;
a bill from the City and County of Honolulu Board of Water
Supply; a bill from Sprint addressed to Ford at the Kailua House;
and statements for Ford’s Hawaii Airlines Bank of Hawaii credit
card.
15

personal jurisdiction. In Data Disc, the Court of
Appeals further held that a district judge need
not weigh conflicting affidavits on a 12(b)(2)
motion because “the district judge [generally] has
no basis for a determination of credibility.”
Data Disc, 557 F.[2]d at 1284. Hunter Engineering
extended this standard to factual Rule 12(b)(1)
motions.
Nino, 2015 WL 5032644, at *4 n.2 (some alterations in Nino).
In light of evidence that is both admissible and
properly before this Court, and weighing the Lew factors as a
whole, the record is insufficient to support a finding that
Ford’s domicile, at the time the Complaint was filed, was either
Oregon or Hawai`i.

A finding of Ford’s domicile based on the

current record would require credibility determinations that are
inappropriate in a motion to dismiss.

When the record is more

fully developed, it may allow a finding on domicile without a
credibility determination.

The Motion is therefore denied

without prejudice to the filing of a motion for summary judgment
addressing subject matter jurisdiction.

The parties are reminded

that any motion for summary judgment filed in this case must
comply with the requirements of Local Rule 56.1
CONCLUSION
On the basis of the foregoing, Ford’s Motion for
Summary Judgment and/or in the Alternative Motion to Dismiss for
Lack of Jurisdiction, filed May 27, 2017, is HEREBY DENIED,
WITHOUT PREJUDICE.
IT IS SO ORDERED.
16

DATED AT HONOLULU, HAWAII, October 30, 2017.

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

HAWAII FIT FOUR LLC VS. SHAYNE ROBERT FORD; CIVIL 16-00607 LEKRLP; ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND/OR
IN THE ALTERNATIVE MOTION TO DISMISS FOR LACK OF JURISDICTION

17