Pengelly v. Family Court of the Third Circuit, State of Hawaii et al

Filing 31

ORDER GRANTING The Hawaii Family Court's Edward Smith's, and Robert Kim's 7 11 20 Motions To Dismiss And DENYING 30 Motion For A Trial Date."The court dismisses all claims against the Hawaii Family Court and Judge Auna without leave to amend, as no amendment could cure the Eleventh Amendment and absolute judicial immunity defects. The federal claims against Defendants Smith and Kim are dismissed with leave to amend. If Delroy files an Amended Complaint with a plausible fe deral claim, he may assert state-law claims in the same document. Delroy may file an Amended Complaint against Defendants Smith and Kim no later than December 29, 2017. The period before this deadline will allow this court to rule on Gianottis pendin g motion to dismiss before an Amended Complaint is due. Failure to file an Amended Complaint by that deadline will cause claims against Smith and Kim to be automatically dismissed." Signed by JUDGE SUSAN OKI MOLLWAY on 10/18/17. (cib, )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. Copy of order mailed to Delroy Pengelly and E.F. Gianotti Modified on 10/18/2017 (cib, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DELROY PENGELLY,

)
)
Plaintiff,
)
)
vs.
)
STATE OF HAWAII, FAMILY COURT )
)
OF THE THIRD CIRCUIT;
)
MARGARITA PENGELLY AND OBO
)
MINOR CHILD; EDWARD J.S.F.
)
SMITH; ERNIE F. GIANOTTI;
)
ROBERT D.S. KIM,
)
)
Defendants.
_____________________________ )

Civ. No. 17-00306 SOM-KJM
ORDER GRANTING THE HAWAII
FAMILY COURT’S, EDWARD
SMITH’S, AND ROBERT KIM’S
MOTIONS TO DISMISS AND
DENYING MOTION FOR A TRIAL
DATE

ORDER GRANTING THE HAWAII FAMILY COURT’S, EDWARD SMITH’S, AND
ROBERT KIM’S MOTIONS TO DISMISS AND DENYING MOTION FOR A TRIAL DATE
I.

INTRODUCTION.
Plaintiff Delroy Pengelly (“Delroy”), 1 proceeding pro

se, has filed a Complaint alleging that two of his attorneys,
his estranged wife, her attorney, and a Hawaii Family Court
violated his Fifth and Fourteenth Amendment rights and various
Hawaii statutes.

The allegations focus on conduct that occurred

during Family Court proceedings between Delroy and his wife.
Before this court are several Defendants’ motions to dismiss,
arguing that the court lacks subject matter jurisdiction or,
alternatively, that the Complaint fails to state a claim upon
which relief can be granted.

1

The court grants the motions filed

This Order refers to Delroy by his first name because his wife,
Margarita Pengelly, is also a party.

by the Hawaii Family Court, Edward Smith, and Robert Kim.

The

court decides the motions without a hearing pursuant to Local
Rule 7.2(d).

A hearing on Defendant Ernie Gianotti’s Motion

remains scheduled for 9:00 a.m. on November 27, 2017.

The court

also denies as unnecessary Plaintiff’s Motion for a Trial Date.
II.

BACKGROUND.
Delroy names as Defendants his estranged wife,

Margarita Pengelly (“Margarita”); her attorney, Robert Kim; two
of Delroy’s previous attorneys, Edward Smith and Ernie Gianotti;
and the State of Hawaii Family Court of the Third Circuit
(“Hawaii Family Court”).

ECF 1, PageID # 1.

No other party is

labeled a “Defendant” in the caption or the body of the
Complaint.

See id., PageID # 1-2.

The Complaint does note that

the Hawaii Family Court acted “at all times . . . through its
agents: Judge Aley K. Auna Jr. and court employees.”

Id.

The

Complaint’s allegations describe conduct by Judge Auna, but not
conduct by any other court employees.

Accordingly, the court

construes the Complaint as naming Judge Auna--and only Judge
Auna--as an additional Defendant. 2
This Order addresses motions by two of the three
attorneys, the Hawaii Family Court, and Judge Auna.

See ECF 7,

PageID # 25 (Robert Kim); ECF 11, PageID # 43 (Hawaii Family
2

In its Motion to Dismiss, the Hawaii Family Court treats both
Judge Auna and unidentified court employees as Defendants and
makes arguments on their behalf. See ECF 11, PageID # 7-11.
2

Court and Judge Auna); ECF 20, PageID # 83 (Edward Smith).

All

of these Defendants’ motions to dismiss were set for hearing on
October 3, 2017, see ECF 25, while the third attorney, Gianotti,
filed a motion to dismiss that remains scheduled for a hearing
at 9:00 a.m. on November 27, 2017, see ECF 27; ECF 28.

The

present Order, consequently, does not resolve Gianotti’s Motion.
Margarita has filed an Answer but no motion to dismiss.

See ECF

14, PageID # 61-62.
Delroy filed a “Motion for a Trial Date” on October 3,
2017.

See ECF 30, PageID # 132.
A.

Allegations in the Complaint.

Delroy is a United States citizen who resides in
Kailua Kona, Hawaii.

ECF 1, PageID # 2.

On September 12, 2015,

Delroy married Margarita Pengelly, a Russian citizen, who,
according to Delroy, “schemed and plotted” to marry Delroy for
the “sole purpose” of obtaining a green card.
a young child.

Id.

The two have

Id.

Margarita received her green card around May 29, 2016,
and began planning a trip to Dubai for herself, Delroy, and
their child.

Id., PageID # 4.

flights on July 15, 2016.

Margarita bought tickets for

Id., PageID # 4-5.

Delroy started to

worry that, once in Dubai, Margarita would divorce him and
abscond with their child.

Id.

The day before the family was

scheduled to leave, Delroy “removed and secured” the child’s
3

passport, went to work, and phoned Margarita to express his
fears.

Id., PageID # 5.

At 6 p.m., Margarita texted Delroy to

ask where the passport was.
responded.

See id.

Id.

It is unclear whether Delroy

At 11:50 p.m., Delroy returned home from

work and found the house empty.

Id.

Delroy contacted the local

police, the FBI, the State Department, and the National Center
for Missing and Exploited Children to report that his wife and
child were missing.

Id.

The next day, unable to board the flight to Dubai,
Margarita and the child went to the Hawaii Family Court to
request a temporary restraining order (“TRO”) against Delroy.
Id.

On the application, Margarita accused Delroy of being

“emotionally and psychologically violent” and “threaten[ing] to
kill her.”

Id.

Delroy calls these “false statements.”

Id.

At

some point, Margarita allegedly “lied [to] and deceived the
Child and Family Services for Domestic Abuse Shelter” by
claiming that Delroy had abused her, and telephoned Delroy’s
sister in an alleged attempt to elicit false statements to the
effect that Delroy “was an abusive person and ex-husband.”

Id.,

PageID # 5-6.
At the TRO hearing, Margarita allegedly “provided four
false witnesses to testify” against Delroy.
It is not clear who the witnesses were.

Id., PageID # 3.

See id.

Delroy

complains that his attorney, Ernie Gianotti, failed to “show a
4

willingness to work on [Delroy’s] behalf” and “refus[ed] to
effectively cross examine” the witnesses.
Auna Jr. granted the TRO.

Id.

Judge Aley K.

See id.

Delroy filed for divorce on July 29, 2016, and for
annulment on November 1, 2016.

Id., PageID # 3.

Margarita,

through her attorney, Robert Kim, filed for divorce on August
10, 2016.

Id.
Delroy describes Judge Auna as having demonstrated

“bias” towards Delroy during the various proceedings.
PageID # 6.

Id.,

Judge Auna allegedly “ignored evidence prejudicial

to the favored party,” made “one[-]sided comments,” and “granted
approximately 99% of the motions in favor of Margarita.”

Id.

Margarita had, for example, allegedly violated the TRO “on four
separate occasions,” including by approaching “within one
f[oo]t” of Delroy’s car and by being “present when [Delroy]
picked up and dropped off” their child at a playground.

Id.

When Judge Auna was informed of Margarita’s four violations, he
allegedly dismissed them as “nothing of great importance.”

Id.

Then, on August 22, 2016, Judge Auna allegedly “enforced” the
TRO and “charged Delroy with domestic violence,” “even [though]
there was no evidence of abuse and while ignor[ing] [Delroy’s]
evidence.”

Id., PageID # 3.

According to Delroy, Judge Auna

also “stated in court that he w[ould] prevent Delroy . . . from
having any contact” with the child until Delroy attended a
5

domestic violence program, “[t]hereby misusing the legal
system.”

Id.
Edward Smith represented Delroy in some of these

proceedings but, like the attorney before him, allegedly failed
to “show a willingness to work” on Delroy’s behalf.
# 4.

Id., PageID

Delroy claims that Smith said at the time he was hired

that he would file an appeal and take other actions in the case,
but, as of June 12, 2017, had not done so.

Id., PageID # 4.

On

June 12, 2017, Delroy sent an email that “terminated [his and
Smith’s] legal relationship,” but on June 16, 2017, Judge Auna
“denied Attorney Smith’s Motion to Withdraw as Coun[sel]” and
Smith “continue[d] working on [the] case.”

Id.

Robert Kim, representing Margarita, was allegedly “the
‘kingpin’ of [a] collusive effort to deplete Delroy[‘s] . . .
income and assets.”

Id., PageID # 6.

Delroy says that Kim

filed documents with the Family Court to have Delroy’s income
garnished, and, soon thereafter, Delroy faced “orders for
payments to various entities.”

Id., PageID # 3, 6.

B. Theories of Liability.
The Complaint asserts four claims for relief against
“the Defendants,” ECF 1, PageID # 7-11, by which Delroy
apparently means all Defendants. 3

3

First, Defendants violated

The court rejects Defendant Smith’s argument that because the
Complaint speaks generally of “the defendants,” it should be
6

Delroy’s Fifth and Fourteenth Amendment rights by depriving him
of income and his emotional bond with his child without due
process of law.

Id., PageID # 8.

Second, Defendants were part

of a civil conspiracy to deprive Delroy of his assets.
PageID # 9.

Id.,

Third, Defendants “engage[d] in overt acts [of]

fraud” while using the legal system to further their conspiracy.
Id., PageID # 9-10.

Fourth, Defendants intentionally inflicted

emotional distress on Delroy.

Id., PageID # 10-11.

The

Complaint seeks more than $75,000 per claim in damages.

Id.,

PageID # 7-11.
C. Subsequent Filings.
The remainder of this Order uses the term “Defendants”
to refer only to those Defendants whose motions to dismiss are
before this court in the present Order: Robert Kim, Edward
Smith, the Hawaii Family Court, and Judge Auna.
Defendants have moved to dismiss the Complaint under
Rule 12(b)(1) or, in the alternative, Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
For his part, Delroy has filed a “Motion for a Trial
Date,” which requests that a trial date be set and also argues
that Defendants’ motions are without merit.

See ECF 30, PageID

dismissed as “vague.”
ECF 20, PageID # 96.
When a pro se
complaint labels various individuals and entities “Defendants,”
and then asserts claims for relief against “the Defendants,” it
is not a stretch to read it as proceeding against all of the
individuals and entities labeled “Defendants.”
7

# 133.

Delroy attached as an exhibit a Hawaii Family Court

document indicating that Judge Auna had recused himself from
Delroy’s Family Court proceedings on July 13, 2017.

ECF 30-2,

PageID # 143.
III.

STANDARD UNDER RULES 12(b)(1) AND 12(b)(6).
A.

Rule 12(b)(1).

Rule 12(b)(1) authorizes a court to dismiss claims
over which it lacks subject matter jurisdiction.

An attack on

subject matter jurisdiction “may be facial or factual.”

Safe

Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
A facial attack asserts that “the allegations contained in a
complaint are insufficient on their face to invoke federal
jurisdiction.”

Id.

A factual attack, on the other hand,

“disputes the truth of the allegations that, by themselves,
would otherwise invoke federal jurisdiction.”
Defendants bring facial attacks.

Id.

When the moving

party makes a facial challenge, the court’s inquiry is
“confin[ed] . . . to allegations in the complaint.”

Savage v.

Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003).
Those allegations are taken by the court as true.

Courthouse

News Serv. v. Planet, 750 F.3d 776, 780 (9th Cir. 2014).
B.

Rule 12(b)(6).

Defendants alternatively move under Rule 12(b)(6) of
the Federal Rules of Civil Procedure.
8

Dismissal under Rule

12(b)(6) may be based on either: (1) lack of a cognizable legal
theory, or (2) insufficient facts under a cognizable legal
theory.

Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699

(9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc.,
749 F.2d 530, 533–34 (9th Cir. 1984)).
To survive a Rule 12(b)(6) motion to dismiss,
“[f]actual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.”).
The court takes all allegations of material fact as true and
construes them in the light most favorable to the nonmoving
party, then evaluates whether the complaint “state[s] a claim to
relief that is plausible on its face.”

Twombly, 550 U.S. at

570; Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001); Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.
1996).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 678.
9

Hence, conclusory

allegations of law, unwarranted deductions of fact, and
unreasonable inferences are insufficient to defeat a motion to
dismiss.

Sprewell, 266 F.3d at 988; Syntex Corp. Sec. Litig.,

95 F.3d at 926.
On a Rule 12(b)(6) motion, the court’s review is
generally limited to the contents of the complaint.

Sprewell,

266 F.3d at 988; Campanelli v. Bockrath, 100 F.3d 1476, 1479
(9th Cir. 1996).

If matters outside the pleadings are

considered, the Rule 12(b)(6) motion is treated as one for
summary judgment.

See Keams v. Tempe Tech. Inst., Inc., 110

F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932,
934 (9th Cir. 1996).

The court may “consider certain materials

–-documents attached to the complaint, documents incorporated by
reference in the complaint, or matters of judicial notice–without converting the motion to dismiss into a motion for
summary judgment.”

United States v. Ritchie, 342 F.3d 903, 908

(9th Cir. 2003).
This court addresses jurisdictional challenges first.
It reaches Rule 12(b)(6) matters only when it determines that it
has jurisdiction.
IV.

ANALYSIS.
A.

The Court Has Subject Matter Jurisdiction.

“Federal courts are courts of limited jurisdiction,”
and “[i]t is to be presumed that a cause lies outside this
10

limited jurisdiction.”

Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994).

The party invoking federal

jurisdiction has the burden of proving the existence of subject
matter jurisdiction.
(9th Cir. 1996).

Id.; Thompson v. McCombe, 99 F.3d 352, 353

If a court lacks subject matter jurisdiction,

it must dismiss the complaint, sua sponte if necessary.

Leeson

v. Transamerica Disability Income Plan, 671 F.3d 969, 975 n.12
(9th Cir. 2012) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500,
514 (2006)).
Delroy claims that this court has jurisdiction because
his Complaint presents a federal question.
# 13.

See ECF 1-1, PageID

Delroy alleges that Defendants violated his rights under

the Constitution.

Consequently, the court construes Delroy as

proceeding under 42 U.S.C. § 1983, which states:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes to
be subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress . . . .

Id.

Delroy’s failure to expressly mention § 1983 is not a

fatal flaw in a pro se complaint.

See Cadwalder v. United

States, 45 F.3d 297, 300 (9th Cir. 1995) (explaining that
11

federal courts should construe pro se pleadings “liberally”);
Bretz v. Kelman, 773 F.2d 1026, 1027 (9th Cir. 1958) (reading a
cause of action into a pro se petitioner’s factual pleadings).
This court has subject matter jurisdiction based on a
federal question. See 28 U.S.C. § 1331.

This court also has the

discretion to exercise supplemental jurisdiction over the statelaw claims.
B.

See 28 U.S.C. § 1367.
Rooker-Feldman Does Not Divest the Court of
Jurisdiction.

The Hawaii Family Court seeks dismissal based on the
Rooker-Feldmam doctrine.

See ECF 11, PageID # 5-7.

Although

the other movants do not rely on Rooker-Feldman, this court
addresses the matter as to all four movants because RookerFeldman concerns the foundational issue of this court’s
jurisdiction.

See Reusser v. Wachovia Bank, N.A., 525 F.3d 855,

859 (9th Cir. 2008) (explaining that Rooker-Feldman, if
applicable, revokes “subject matter jurisdiction”) (quoting
Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004)).
As it turns out, at this time, the Rooker-Feldman doctrine does
not apply to any Defendant in this case at all.
“Under Rooker–Feldman, lower federal courts are
without subject matter jurisdiction to review state court
decisions, and state court litigants may therefore only obtain
federal review by filing a petition for a writ of certiorari in

12

the Supreme Court of the United States.”

Mothershed v. Justices

of Supreme Court, 410 F.3d 602, 606 (9th Cir. 2005); see also 28
U.S.C. § 1257 (indicating that “[f]inal judgments or decrees
rendered by the highest court of a State in which a decision
could be had, may be reviewed by the Supreme Court by writ of
certiorari”).

The Supreme Court has applied this doctrine to

divest subject matter jurisdiction “only twice,” having decided
to “confine[]” the doctrine to “cases of the kind from which the
doctrine acquired its name,” i.e., Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923), and District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462 (1983).

Skinner v. Switzer, 562 U.S.

521, 532 (2011) (quoting Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005)).

In paradigmatic Rooker-

Feldman cases, “state-court losers complain[] of injuries caused
by state-court judgments rendered before the district court
proceedings commenced” and ask “district courts to review and
reject those judgments.”

Henrichs v. Valley View Dev., 474 F.3d

609, 613 (9th Cir. 2007) (quoting Exxon, 544 U.S. 280, 284
(2005)).
Because Rooker-Feldman rests on the idea that lower
federal courts lack appellate jurisdiction over state courts,
the Ninth circuit has explained that “federal district courts
lack jurisdiction [under the doctrine only when they are
reviewing] final state court judgments.”
13

Henrichs, 474 F.3d at

613 (emphasis added); see also Mothershed, 410 F.3d at 604 n.1
(“A state [court’s] . . . ruling will therefore trigger
the Rooker–Feldman doctrine’s applicability [only] where such
ruling constitutes the final determination of an issue.”).
“Proceedings end for Rooker–Feldman purposes when the state
courts finally resolve the issue that the federal court
plaintiff seeks to relitigate in a federal forum . . . .”
Mothershed, 410 F.3d at 604 n.1.
Delroy does not seek to set aside a final state court
determination.

None of the orders discussed in the Complaint--

the TRO order, the grants of nonspecific “motions,” the order
directing Delroy to attend domestic violence classes--is
“final.”

In Hawaii, a “final order” is “an order ending the

proceedings, leaving nothing further to be accomplished.
Consequently, an order is not final if the rights of a party
involved remain undetermined or if the matter is retained for
further action.”

Familian Northwest, Inc. v. Central Pacific

Boiler & Piping, Ltd., 68 Haw. 368, 370, 714 P.2d 936, 937
(1986) (quoting Gealon v. Keala, 60 Haw. 513, 520, 591 P.2d 621,
626 (1979)).
proceedings.”

None of Judge Auna’s orders “end[ed] the
Id.

This includes any TRO ruling.

See Maui

Radiology Assocs., LLP v. Kawano, No. SCPW-12-0000633, 2012 WL
4478583, at *5 n.1 (Haw. Sept. 27, 2012) (“An order denying
a TRO is n[ot] an appealable final order.”); Kie v. McMahel, 91
14

Haw. 438, 442, 984 P.2d 1264, 1268 (Ct. App. 1999) (explaining
that Hawaii court defendants can “move[] [an issuing] court at
any point to vacate or modify [a] TRO”).
Delroy’s Complaint, filed on June 28, 2017, refers to
ongoing proceedings in the Hawaii Family Court.
PageID # 3.

See ECF 1,

Nothing in the record indicates that there is a

final order to which the Rooker-Feldman doctrine might apply.
Moreover, a review of the Hawaii Family Court dockets reveals
that judgment has yet to be entered in any of them.

On none of

the four dockets described in Delroy’s Complaint had the Family
Court entered judgment by the date that the Complaint was filed
(June 28, 2017), or as of the date of this Order (October 18,
2017).

See Hawaii State Judiciary’s Public Access to Court

Information, http://hoohiki.courts.hawaii.gov/#/search_listing?
lastName=Pengelly&itemsPerPage=50&currentPageNumber=1&firstName=
Delroy (last visited October 18, 2017) (listing the four
dockets).

The court notes that it “may take [judicial] notice

of proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct
relation to matters at issue.”

Trigueros v. Adams, 658 F.3d

983, 987 (9th Cir. 2011); see also Lee v. City of Los Angeles,
250 F.3d 668, 689-90 (9th Cir. 2001) (“[A] court may take
judicial notice of matters of public record.” (internal
quotation marks and citation omitted)).
15

The Rooker-Feldman

doctrine is therefore not applicable here.

See Yellen v. Hara,

No. CV 15-00300 JMS-KSC, 2015 WL 8664200, at *7 (D. Haw. Dec.
10, 2015) (declining to apply Rooker-Feldman when “there is no
state court judgment, and . . . [the state court] proceeding is
still ongoing”).
The court turns to the party-specific arguments for
dismissal.
C.

The Court Dismisses All Claims Against the Hawaii
Family Court.

The Hawaii Family Court did not raise sovereign
immunity in moving to dismiss.

See ECF 11.

The court

nonetheless raises the issue sua sponte because Eleventh
Amendment immunity is a component of its subject matter
jurisdiction.

See Edelman v. Jordan, 415 U.S. 651, 678 (1974)

(“[T]he Eleventh Amendment defense sufficiently partakes of the
nature of a jurisdictional bar so that it need not be raised [by
the state entity] in the trial court.”); Salerno v. Arizona, 507
F. App'x 654, 654 (9th Cir. 2013) (“Eleventh Amendment sovereign
immunity limits the jurisdiction of the federal courts and can
be raised . . . by the court sua sponte.”) (quoting In re
Jackson, 184 F.3d 1046, 1048 (9th Cir. 1999)).

But see Hill v.

Blind Indus. & Servs. of Md., 179 F.3d 754, 760, as amended, 201
F.3d 1186 (9th Cir. 1999).

16

The court lacks subject matter jurisdiction over all
claims against the Hawaii Family Court, an entity entitled to
Eleventh Amendment immunity.

“[I]n the absence of consent a

suit in which the State or one of its agencies or departments is
named as the defendant is proscribed by the Eleventh Amendment.”
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984).

“This jurisdictional bar applies regardless of the

nature of the relief sought.”

Id.; see also Durning v.

Citibank, 950 F.2d 1419, 1422–23 (9th Cir. 1991) (noting that
the Eleventh Amendment bars “federal courts from deciding
virtually any case in which a state or the ‘arm of a state’ is a
defendant”).

Further, “neither a State nor its officials acting

in their official capacities are ‘persons' under § 1983.”

Will

v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Doe v.
Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir.
1997).
The Hawaii Family Court is an arm of the state of
Hawaii and has not waived its immunity.

Accordingly, all

damages claims against it must be dismissed pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure.

17

D.

The Court Dismisses All Claims Against Judge
Auna.

Delroy does not indicate whether he is complaining
about actions taken by Judge Auna in his individual or his
official capacity.
1.

This court analyzes both possibilities.
Official Capacity.

Any claim against Judge Auna in his official capacity
is barred by the Eleventh Amendment.

In Will v. Mich. Dep’t of

State Police, 491 U.S. 58 (1989), the Supreme Court clarified
that “a suit against a state official in his or her official
capacity” is treated as “a suit against the State itself.”

Id.

at 71; see also Flint v. Dennison, 488 F.3d 816, 824-25 (9th
Cir. 2007).

The Court further noted that “neither a State nor

its officials acting in their official capacities are ‘persons'
under § 1983.”

Id. (emphasis added).

Although there is an

exception to Eleventh Amendment immunity for official capacity
suits that seek prospective injunctive relief, see Quern v.
Jordan, 440 U.S. 332, 337 (1979), the Complaint requests only
damages.

Accordingly, for the same reasons that the damages

claims against the Hawaii Family Court are barred, the claims
against Judge Auna in his official capacity are dismissed.
2.

Individual Capacity.

The Eleventh Amendment does not bar claims against
Judge Auna in his individual capacity.

18

See Alden v. Maine, 527

U.S. 706, 757 (1999).

However, such claims run afoul of the

concept of absolute judicial immunity.

Absolute judicial

immunity is not an issue going to subject matter jurisdiction
but rather is examined under Rule 12(b)(6).

See Meek v. Cty. of

Riverside, 183 F.3d 962, 965 (9th Cir. 1999).

The Hawaii Family

Court raised this issue on behalf of Judge Auna.

See ECF 11,

PageID # 43, 50-54.
“It is well settled that judges [sued in their
individual capacity] are generally immune from civil liability
under section 1983.”

Meek, 183 F.3d at 965 (citing Mireles v.

Waco, 502 U.S. 9, 9–10 (1991)).

“The rationale for granting

judges immunity . . . is that judges should be free to make
controversial decisions and act upon their convictions without
fear of personal liability.”

Id. at 965.

Under the doctrine of absolute judicial immunity,
judges are “immune from civil rights suits for judicial acts not
taken in the absence of all jurisdiction.”

O'Connor v. Nevada,

686 F.2d 749, 750 (9th Cir. 1982) (per curiam) (citing Stump v.
Sparkman, 435 U.S. 349, 357 (1978)).

There are only two

situations in which a judge is not absolutely immune.

“First, a

judge is not immune from liability for nonjudicial actions,
i.e., actions not taken in the judge’s judicial capacity.
Second, a judge is not immune for actions, though judicial in
nature, taken in the complete absence of all jurisdiction.”
19

Id.

(quoting Mireles, 502 U.S. at 11-12).

Otherwise, “[a] judge is

not deprived of immunity because he takes actions which are in
error, are done maliciously, or in excess of his authority.”
Meek, 183 F.3d at 965.

“[T]he burden is on the official

claiming immunity to demonstrate his entitlement.”

Dennis v.

Sparks, 444 U.S. 24, 29 (1980).
The Complaint’s allegations, taken as true, indicate
that Judge Auna acted in his judicial capacity.

To determine

whether conduct is judicial in nature, courts examine whether
“(1) the precise act is a normal judicial function; (2) the
events occurred in the judge’s chambers; (3) the controversy
centered around a case then pending before the judge; and (4)
the events at issue arose directly and immediately out of a
confrontation with the judge in his or her official capacity.”
Meek, 183 F.3d at 967 (quoting New Alaska Dev. Corp. v.
Guetschow, 869 F.2d 1298, 1302 (9th Cir. 1989)).
Delroy alleges that Judge Auna ruled on motions
submitted to him during pending divorce, annulment, and TRO
proceedings; ordered Delroy’s income garnished in ruling on one
motion; required Delroy to attend domestic violence counseling
after finding that Delroy had violated the TRO and abused a
family member; and made certain disparaging comments from the
bench.

All the relevant Meek factors weigh in favor of finding

that Judge Auna acted in his judicial capacity.
20

It is unclear

whether the second factor, which looks at whether conduct
occurred in chambers, is applicable here.

Even if none of the

conduct occurred in chambers, that would not weigh against
viewing Judge Auna’s conduct as nonjudicial.

That is, the law

of judicial immunity does not operate to insulate only chambers
conduct, while leaving a judge subject to suit under § 1983 for
all courtroom conduct.

Cf. Meek, 183 F.3d at 967 (finding that

the second factor weighed against absolute immunity only when it
did not appear that the challenged conduct “took place in a
judge’s chambers, [and] it did not occur while the court was in
session” (emphasis added) (citation omitted)).

Judge Auna took

the alleged actions in his judicial capacity.
Nor did Judge Auna act outside his jurisdiction, such
that absolute immunity is inapplicable.

Judges are immune with

respect to their judicial acts as long as their acts are not
taken in the “clear absence of all jurisdiction over the subject
matter.”

Stump v. Sparkman, 435 U.S. 349, 356 n.6 (1978).

The

“clear absence of all jurisdiction” is distinguishable from a
mere “excess of jurisdiction”:
[I]f a probate judge, with jurisdiction over
only wills and estates, should try a
criminal case, he would be acting in the
clear absence of jurisdiction and would not
be immune . . . . [O]n the other hand, if a
judge of a criminal court should convict a
defendant of a nonexistent crime, he would
merely be acting in excess of his
jurisdiction and would be immune.
21

Id. at 356 n.7.
Judge Auna, a Hawaii Family Court judge, had
jurisdiction over divorce, annulment, and TRO proceedings.
HAW. REV. STAT. ANN. §§ 580-1, 586-4 (West 2017).

See

His judicial

actions were not taken in “the clear absence of all
jurisdiction,” and he is entitled to absolute judicial immunity
with respect to Delroy’s damages claims.
E.

The Court Dismisses the § 1983 Claims Against
Robert Kim and Edward Smith.

Both remaining Defendants--Robert Kim and Edward Smith
--argue that the court lacks jurisdiction to hear the claims
against them, or, in the alternative, that the Complaint fails
to state a claim on which relief can be granted.
Page ID # 27; ECF 20, PageID # 96.

See ECF 7,

Kim and Smith were involved

in state-court matters as attorneys.
Smith argues that the court lacks jurisdiction because
the Complaint did not establish that he acted “under color of
state law.”

See ECF 20, PageID # 96.

The failure to meet the

“under color of state law” requirement in § 1983 does not speak
to subject matter jurisdiction.

As Defendant Kim notes, that

issue appears instead to go to whether, under Rule 12(b)(6),
Delroy states a claim.

See, e.g., Caviness v. Horizon Cmty.

Learning Ctr., Inc., 590 F.3d 806, 815-16 (9th Cir. 2010);
Johnson v. Knowles, 113 F.3d 1114, 1116 (9th. Cir 1997); ECF
22

7-1, PageID # 27, 32.

But see Campbell v. Stein, 314 F. App’x

976, 977 (9th Cir. 2009) (affirming a Rule 12(b)(1) dismissal
for failure to allege action under color of state law on the
grounds that the court “lacks subject matter jurisdiction”).
The Supreme Court may have contributed to the confusion when, in
discussing the procedural posture of a case, it remarked that
“under color of state law” is “a jurisdictional requisite for a
§ 1983 action,” and then proceeded to hold that “[t]o state a
claim under § 1983, a plaintiff must [allege action] . . . under
color of state law.”
(emphases added).

West v. Atkins, 487 U.S. 42, 46, 48 (1988)

The court follows the weight of authority in

the Ninth Circuit and analyzes the issue as a Rule 12(b)(6)
matter.
Section 1983 “provides remedies for deprivations of
rights under the Constitution . . . when the deprivation takes
place under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory.”

Caviness, 590 F.3d at 812

(quoting Gorenc v. Salt River Project Agric. Improvement & Power
Dist., 869 F.2d 503, 505 (9th Cir. 1989)).

Thus, to state a

§ 1983 claim, “[p]laintiffs must plead two essential elements:
1) that the Defendants acted under color of state law, and 2)
that the Defendants caused them to be deprived of a right
secured by the Constitution and the laws of the United States.”

23

Johnson, 113 F.3d at 1117; see also Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999).
The first element, requiring action under color of
state law, tracks the state action question posed in Fourteenth
Amendment cases, which is whether an alleged infringement of
federal rights is fairly attributable to the government.

Sutton

v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir.
1999) (addressing the Religious Freedom Restoration Act’s “under
color of state law” requirement, which the court held mirrors
that in § 1983).

“The state-action element in § 1983 ‘excludes

from its reach merely private conduct, no matter how
discriminatory or wrongful.’”

Caviness, 590 F.3d at 812

(quoting Sullivan, 526 U.S. at 50).

“Careful adherence to the

‘state action’ requirement . . . preserves an area of individual
freedom by limiting the reach of federal law and federal
judicial power.”

Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass'n, 531 U.S. 288, 306 (2001) (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 936 (1982)).
When a § 1983 suit seeks to recover from private
parties, we “start with the presumption that private conduct
does not constitute governmental action.”
835.

Sutton, 192 F.3d at

To survive a motion to dismiss, the allegations in the

Complaint must “raise a reasonable inference that [a defendant]
was a state actor and thus acted under color of state law in
24

taking the alleged actions.”

Caviness, 590 F.3d at 808.

Courts

will use four different factors to determine whether the
presumption is rebutted and action under color of state law is
present: “(1) public function, (2) joint action, (3)
governmental compulsion or coercion, and (4) governmental
nexus.”

Sutton, 192 F.3d at 835-36.

When examining these

factors, courts keep in mind that “there is no specific formula
for defining state action,” and the result “must be determined
based on the circumstances of each case.”

Sutton, 192 F.3d at

836 (quoting Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir.
1983), and Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir.
1999)).
The Complaint does not specifically allege that
attorneys Kim and Smith acted under color of state law, but it
does claim that the parties and the Hawaii Family Court
conspired.

This implicates the second factor, joint action,

which holds that “a private party’s joint participation in a
conspiracy with the state” is action under color of state law.
Sutton, 192 F.3d at 840; see also Johnson, 113 F.3d at 1119
(noting that joint action is implicated when plaintiffs
“allege[] [a] conspiracy between [private individuals] and a
government actor”).

For this analysis, it does not matter that

Judge Auna is entitled to absolute judicial immunity.

See

Dennis v. Sparks, 449 U.S. 24, 30 (1980) (“[J]udicial immunity
25

[does not] insulate[] from damages liability those private
persons who corruptly conspire with the judge.”).
In Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970),
the Supreme Court allowed a § 1983 suit to proceed given
allegations that a private restaurant had conspired with police
to arrest a Caucasian teacher who was trying to eat lunch with
her African-American students.

The Court reasoned that “if

[Adickes] can prove that a Kress employee, in the course of
employment, and a Hattiesburg policeman somehow reached an
understanding to deny Miss Adickes service in the Kress store,
or to cause her subsequent arrest,” then “she will be entitled
to relief [against the restaurant] under § 1983.”

Id. at 152.

In the years since Adickes, pleading standards have
tightened, and the law of the circuit is that conclusory cries
of “Conspiracy!” are not enough; there must be enough factual
detail in the Complaint to make the assertion plausible.
Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).

See
It

should also be noted that “some courts, including [the Ninth
Circuit], have held that racial discrimination cases, such as
Adickes, require less governmental action than other types of
claims.”

Sutton, 192 F.3d at 841 n.6.

Delroy alleges that the

attorneys filed documents with the Hawaii Family Court, which,
in turn, ordered Delroy to attend counseling sessions and to pay
part of his income to Margarita and their child.
26

These

allegations do not support a claim that the private parties
acted under color of state law by virtue of a conspiracy with
the judge.

See Dennis v. Sparks, 449 U.S. 24, 28 (1980) (“Of

course, merely resorting to the courts and being on the winning
side of a lawsuit does not make a party a co-conspirator or a
joint actor with the judge.”); see also Gritchen v. Collier, 254
F.3d 807, 814 (9th Cir. 2001) (“[When a] plaintiff is simply
enabled by state law and decides to pursue the remedy afforded
. . . [that] does [not] convert the plaintiff’s purely private
action into state action.”); Price, 939 F.2d at 708 (“[S]eeking
court approval [does not] constitute[] state action.”).
When a judge’s rulings are allegedly “the product of a
corrupt conspiracy involving bribery,” the bribery allegation
may support treating “the private parties conspiring with the
judge [as] acting under color of state law.”
444 U.S. 24, 28 (1980).

Dennis v. Sparks,

Here, by contrast, there is no

allegation of bribery or other insidious activity; the Complaint
merely indicates that the attorneys filed motions and the court
ruled on the motions.
Ultimately, “a defendant is entitled to more than the
bald legal conclusion that there was action under color of state
law.”

Price, 939 F.2d at 708.

not support such an assertion.

Delroy’s factual allegations do
See Ibrahim v. Dep’t of Homeland

Security, 538 F.3d 1250, 1257-58 (9th Cir. 2008); Price v.
27

Hawaii, 939 F.2d at 707-09; see also Judd v. Obama, No. CV
12-9319 DDP AN, 2013 WL 1873089, at *3 (C.D. Cal. May 3, 2013)
(dismissing a pro se complaint on these grounds).
Action under color of state law is a requirement for a
§ 1983 claim, and Delroy’s failure to allege facts establishing
such action is fatal to his § 1983 claims against Kim and Smith.
F.

The Court Declines to Exercise Supplemental
Jurisdiction over the Remaining State-Law Claims.

This court may exercise supplemental jurisdiction over
Delroy’s state-law claims if Delroy asserts a federal claim
sufficiently substantial to confer federal jurisdiction, and
there is “a common nucleus of operative fact between the state
and federal claims.”

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.

28

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 Am.
v. Gibbs, 383 U.S. 715, 726 (1966); Maltzman v. Friedman, 103
F.3d 139 (9th Cir. 1996) (“[T]he 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 “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 has noted that such a dismissal is not “a
mandatory rule to be applied inflexibly in all cases,” it has
also recognized that, “in the usual case in which all federallaw 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).
Delroy’s case is the “usual case.”

Id.

This court

therefore declines to exercise supplemental jurisdiction over
the remaining state-law claims of fraud, conspiracy, and
intentional infliction of emotional distress.
29

G.

The Court Denies the Motion for a Trial Date.

The court denies as unnecessary Delroy’s Motion for a
Trial Date.

ECF 30.

The court will set a trial date at a Rule

16 Scheduling Conference with Delroy and any remaining parties.
A Rule 16 Conference is currently set for November 13, 2017, at
9:30 a.m. See ECF 17.
V.

CONCLUSION.
The court dismisses all claims against the Hawaii

Family Court and Judge Auna without leave to amend, as no
amendment could cure the Eleventh Amendment and absolute
judicial immunity defects.

See Weilburg v. Shapiro, 488 F.3d

1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint
without leave to amend is proper only if it is absolutely clear
that the deficiencies of the complaint could not be cured by
amendment.” (quoting Schucker v. Rockwood, 846 F.2d 1202, 120304 (9th Cir. 1988)); Gillespie, 629 F.2d at 640 (similar).
The federal claims against Defendants Smith and Kim
are dismissed with leave to amend.

If Delroy files an Amended

Complaint with a plausible federal claim, he may assert statelaw claims in the same document.

Delroy may file an Amended

Complaint against Defendants Smith and Kim no later than
December 29, 2017.

The period before this deadline will allow

this court to rule on Gianotti’s pending motion to dismiss
before an Amended Complaint is due.
30

Failure to file an Amended

Complaint by that deadline will cause claims against Smith and
Kim to be automatically dismissed.

In the event of such

automatic dismissal, Delroy may, at his option, seek to litigate
any cognizable claims he may have in state court.
Any Amended Complaint must be complete in itself; it
may not simply incorporate by reference the original Complaint
or anything previously filed with this court or any other court.
Also, pursuant to Rule 8(a) of the Federal Rules of Civil
Procedure, any Amended Complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

With respect to each claim, Delroy should describe

what each Defendant allegedly did in separate, numbered
paragraphs, including sufficient facts and references to legal
claims and statutory citations to put the Defendants on notice
of why they, specifically, are being sued.
road map to a plaintiff’s claim.

Complaints are the

Accordingly, any proposed

Amended Complaint should clearly and concisely articulate the
claim being asserted and the basis or bases of this court’s
jurisdiction, including whether Delroy wishes to proceed under
§ 1983 or some other federal law.
If Delroy is proceeding under § 1983, his allegations
should include factual information about why each Defendant sued
under § 1983 is acting under color of state law.

If he is not

proceeding under § 1983, then, depending on what law he is
31

proceeding under, there may not be an “under color of state law”
requirement, but he must still state some claim that is
plausible against each Defendant.
The Motion for a Trial Date is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 18, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Delroy Pengelly v. State of Hawaii, Family Court of the Third
Circuit, Civ. No. 17-00306 SOM-KJM; ORDER GRANTING THE HAWAII
FAMILY COURT’S, EDWARD SMITH’S, AND ROBERT KIM’S MOTIONS TO
DISMISS AND DENYING MOTION FOR A TRIAL DATE.

32