Puana v. Kealoha
Filing
414
ORDER GRANTING DEFENDANT MINH-HUNG "BOBBY" NGUYEN'S MOTION TO DISMISS THIRD AMENDED COMPLAINT FOR DAMAGES [DOC. 307 ] re 330 - Signed by JUDGE LESLIE E. KOBAYASHI on 12/19/2022. On the basis of the for egoing, the Court GRANTS Nguyen's Motion to Dismiss Third Amended Complaint for Damages [Doc. 307], filed June 29, 2022. Count II against Nguyen and the portion of Count III against Nguyen stemming from the 2011 UED charge are DISMISSED WITH P REJUDICE. Count I, the portion of Count III stemming from the 2013 mailbox theft charge, and Count IV remain against Nguyen. (eta)COURT'S CERTIFICATE OF SERVICE - Katherine P. Kealoha and Lou is M. Kealoha have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF) on December 19, 2022. Registered Participants of CM/ECF received the document electronically to the email addresses listed on the Notice of Electronic Filing (NEF).
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UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
GERARD K. PUANA, RICKY L.
HARTSELL, AS TRUSTEE OF THE
FLORENCE M. PUANA TRUST;
CIV. NO. 16-00659 LEK-WRP
Plaintiffs,
vs.
KATHERINE P. KEALOHA, LOUIS M.
KEALOHA, MINH-HUNG NGUYEN, MINHHUNG "BOBBY" NGUYEN; DANIEL
SELLERS, NIALL SILVA, WALTER
CALISTRO, DRU AKAGI, JOHN
AND/OR JANE DOES 1-50, DEREK
WAYNE HAHN,
Defendants.
ORDER GRANTING DEFENDANT MINH-HUNG “BOBBY” NGUYEN’S MOTION TO
DISMISS THIRD AMENDED COMPLAINT FOR DAMAGES [DOC. 307]
Before the Court is Defendant Minh-Hung “Bobby”
Nguyen’s (“Nguyen”) Motion to Dismiss Third Amended Complaint
for Damages [Doc. 307] (“Motion”), filed on June 29, 2022.
[Dkt. no. 330.]
On August 12, 2022, Plaintiffs Gerard K. Puana
(“Puana”) and Ricky L. Hartsell as Trustee of the Florence M.
Puana Trust (collectively “Plaintiffs”) filed their memorandum
in opposition to the Motion.
[Dkt. no. 351.]
the Motion was held on September 2, 2022.
The hearing on
[Dkt. no. 358.]
Motion is hereby granted for the reasons set forth below.
The
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BACKGROUND
Plaintiffs’ operative complaint is their Third Amended
Complaint for Damages, filed on May 13, 2022 (“Third Amended
Complaint”).
[Dkt. no. 307.]
Because the background of the
case was explained in detail in the Court’s Order Granting in
Part and Denying in Part the Motions to Dismiss, filed on
February 28, 2022 (“2/28/22 Order”), [dkt. no. 289,1] and the
factual allegations discussed in the 2/28/22 Order are realleged in the Third Amended Complaint, the Court does not
repeat the background here.
The new factual allegations pled in
the Third Amended Complaint are discussed as relevant to the
Motion.
Plaintiffs allege the following claims against Nguyen:
a malicious prosecution claim under 42 U.S.C. § 1983
(“Count I”);2 a pattern of racketeering activity claim in
violation of 18 U.S.C. § 1962(c) (“Civil RICO Claim” and
“Count II”); an intentional infliction of emotional distress
claim (“IIED Claim” and “Count III”); and a defamation claim
(“Count IV”).
1
Nguyen moves to dismiss with prejudice Count II
The 2/28/22 Order is also available at 587 F. Supp. 3d
1035.
Nguyen’s Motion asserts that only Counts II, III, and IV
are alleged against him. See, e.g., Motion, Mem. in Supp. at 1.
Plaintiffs do not contest Nguyen’s contention in their
memorandum in opposition. But, the Third Amended Complaint
alleges Count I against all of the defendants. See, e.g., Third
Amended Complaint at ¶ 187.
2
2
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and the portion of Count III that is based on the 2011 unlawful
entry of a dwelling (“UED”) charge because Plaintiffs have had
three opportunities to allege sufficient facts and they have
failed to plead such allegations.
DISCUSSION
I.
Civil RICO Claim – Count II
The Court previously dismissed the Civil RICO Claim
because Plaintiffs failed to adequately allege at least two
predicate acts and, even if they did, they failed to
sufficiently allege that the acts were continuous.
Order, 587 F. Supp. 3d at 1052–53.
See 2/28/22
Plaintiffs again fail to
allege either at least two predicate acts or continuity.
The
first predicate act that Plaintiffs allege as to Nguyen relates
to the 2013 mailbox theft charge against Puana.
In the 2/28/22
Order, the Court found that “Plaintiffs sufficiently allege that
members of the [Criminal Intelligence Unit (‘CIU’)], including
Nguyen, violated [18 U.S.C.] § 1512(c) in the 2013 mailbox theft
case against Puana.”
587 F. Supp. 3d at 1052; see also id. at
1046 (describing the 2013 mailbox theft case).
The Third
Amended Complaint realleges sufficient facts to allege a first
predicate act by Nguyen stemming from the 2013 mailbox theft.
See Third Amended Complaint at ¶ 91 (“On June 22, 2013, Nguyen
falsely identified . . . Puana as the person who stole the
mailbox . . . .”).
3
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Plaintiffs, however, fail to allege a second predicate
act.
They allege “several [Honolulu Police Department] officers
including, but not limited to, Nguyen, [Walter] Calistro,
[Daniel] Sellers, [Dru] Akagi, [Derek] Hahn and [Niall] Silva
mishandled evidence, fabricated evidence, falsified reports,
otherwise failed to perform investigative and normal police
duties in a capable and professional manner in order to ensure
that . . . Puana would be prosecuted . . . .”
Compliant at ¶ 97.]
[Third Amended
The broad allegations in paragraph 97
against Nguyen are insufficient to plead a second predicate act.
As to the circumstances regarding the 2011 UED charge against
Puana, Plaintiffs still do not allege how Nguyen assisted
Katherine Kealoha (“Katherine”) in entering Puana’s residence.
See id. at ¶ 55 (“Katherine Kealoha arrived and unlawfully
entered the premises with the assistance of Defendant[]
Nguyen . . . .”).
Other than paragraph 55 in the Third Amended
Complaint, no other facts are alleged as to how Nguyen was
involved in the 2011 UED events.
Thus, two predicate acts have
not been alleged.
Moreover, even if Plaintiffs adequately alleged two
predicate acts, they fail to plausibly allege the element of
continuity.
“[W]hen a plaintiff alleges only a single scheme
with a single victim it cuts against a finding of both closedended as well as open-ended continuity.”
4
Metaxas v. Lee, 503 F.
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Supp. 3d 923, 941 (N.D. Cal. 2020) (citing Religious Tech. Ctr.
v. Wollersheim, 971 F.2d 364, 365-67 (9th Cir. 1992)).
Here,
Plaintiffs allege a single scheme with a single victim.
Namely,
they allege the CIU schemed to implicate Puana in the 2013
mailbox theft.
See Third Amended Complaint at ¶ 90.
Plaintiffs
fail to allege open-ended continuity because “a criminal scheme
with a singular goal poses no threat of continuing criminal
activity once that goal is achieved.”
3d at 941 (citation omitted).
See Metaxas, 503 F. Supp.
They also fail to allege close-
ended continuity because the alleged predicate acts did not
“extend[] over a substantial period of time.”
Nw. Bell Tel. Co., 492 U.S. 229, 242 (1989).
See H.J. Inc. v.
The 2013 mailbox
theft was staged on June 21, 2013, and Puana was charged on
July 1, 2013.
See Third Amended Complaint at ¶¶ 87, 104.
The
ten days that it took the CIU to implicate Puana in the 2013
mailbox theft cuts against a finding of close-ended continuity.
See H.J. Inc., 492 U.S. at 242 (“Predicate acts extending over a
few weeks or months and threatening no future criminal conduct
do not satisfy this requirement[.]”).
Because Plaintiffs neither plausibly allege at least
two predicate acts nor the element of continuity, their Civil
RICO Claim against Nguyen must be dismissed.
See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
5
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accepted as true, to ‘state a claim to relief that is plausible
on its face.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007))).
The dismissal is with prejudice because
Plaintiffs have been given multiple attempts to cure the defects
in their pleading, and it is clear that “the pleading [cannot]
possibly be cured by the allegation of other facts.”
See Ebner
v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016) (quotation
marks and citation omitted).
therefore be futile.
Any future amendment would
See Hoang v. Bank of Am., N.A., 910 F.3d
1096, 1102 (9th Cir. 2018) (“Dismissal with prejudice and
without leave to amend is not appropriate unless it is clear
. . . that the complaint could not be saved by amendment.”
(quotation marks and citation omitted)).
II.
IIED Claim – Count III
The Court previously dismissed the portion of
Plaintiffs’ IIED Claim against Nguyen stemming from the 2011 UED
charge against Puana.3
1053–54.
See 2/28/22 Order, 587 F. Supp. 3d at
Nguyen argues that the IIED Claim should be dismissed
with prejudice because Plaintiffs fail to cure the defects in
the claim.
See Motion, Mem. in Supp. at 10.
The Court agrees
with Nguyen.
The portion of Plaintiffs’ IIED Claim stemming from the
2013 mailbox theft charge survived dismissal. See 2/28/22
Order, 587 F. Supp. 3d at 1054.
3
6
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Plaintiffs only allege Nguyen assisted Katherine in
entering Puana’s residence.
¶ 55.
See Third Amended Complaint at
They do not allege how Nguyen assisted Katherine.
Thus,
the Court cannot identify an act by Nguyen that caused the
alleged harm.
See Young v. Allstate Ins. Co., 119 Hawai`i 403,
429, 198 P.3d 666, 692 (2008) (“[T]he tort of IIED consists of
four elements: 1) that the act allegedly causing the harm was
intentional or reckless, 2) that the act was outrageous, and
3) that the act caused 4) extreme emotional distress to
another.” (citation and internal quotation marks omitted)).
Accordingly, Plaintiffs have not plausibly alleged the portion
of their IIED Claim against Nguyen based on the 2011 UED charge,
and it must be dismissed.
Because Plaintiffs have failed to
allege this portion of their IIED Claim after multiple
opportunities to amend, this Court concludes that further
amendment would be futile.
The dismissal is therefore with
prejudice.
CONCLUSION
On the basis of the foregoing, the Court GRANTS
Nguyen’s Motion to Dismiss Third Amended Complaint for Damages
[Doc. 307], filed June 29, 2022.
Count II against Nguyen and
the portion of Count III against Nguyen stemming from the 2011
UED charge are DISMISSED WITH PREJUDICE.
7
Count I, the portion
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of Count III stemming from the 2013 mailbox theft charge, and
Count IV remain against Nguyen.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 19, 2022.
GERARD K. PUANA, ET AL. VS. KATHERINE P. KEALOHA, ET AL; CV 1600659 LEK-WRP; ORDER GRANTING DEFENDANT MINH-HUNG “BOBBY”
NGUYEN’S MOTION TO DISMISS THIRD AMENDED COMPLAINT FOR DAMAGES
[DOC 307]
8
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