Haigh v. Abuelizam et al
Filing
27
ORDER (1) GRANTING DEFENDANTS' MOTIONS TO DISMISS, AND (2) DENYING MOTION FOR ATTORNEY'S FEES UNDER HRS § 607-14.5, ECF NOS. 11 , 13 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 4/3/2018. (afc) WRITTEN ORDER follows hearing held 4/2/2018. Minutes of hearing: ECF no. 26 . COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants will be served on April 4, 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
CHRISTOPHER EMANUEL HAIGH,
Plaintiff,
vs.
AIDA ABUELIZAM, RAIDA
ABUELIZAM a/k/a RAIDA ABUIZAM,
KAREN J. BOWES, RONNIE
ZANAYED, STEPHEN WITTENBERG,
CIV. NO. 17-00582 JMS-KSC
ORDER (1) GRANTING
DEFENDANTS’ MOTIONS TO
DISMISS, AND (2) DENYING
MOTION FOR ATTORNEY’S
FEES UNDER HRS § 607-14.5,
ECF NOS. 11, 13
Defendants.
ORDER (1) GRANTING DEFENDANTS’ MOTIONS TO DISMISS, AND
(2) DENYING MOTION FOR ATTORNEY’S FEES UNDER
HRS § 607-14.5, ECF NOS. 11, 13
I. INTRODUCTION
On December 5, 2017, pro se Plaintiff Christopher Emanuel Haigh
(“Plaintiff”) filed a Complaint asserting state-law claims arising from underlying
and highly contentious divorce, custody, and disbarment proceedings in Illinois
and Indiana. Plaintiff names as Defendants his ex-wife Aida Abuelizam,
(“Abuelizam” or “A. Haigh”); 1 his ex-mother-in-law Raida Abuelizam a/k/a Raida
Abuizam (“Abuizam”); Karen Bowes (“Bowes”), Plaintiff’s minor daughter’s
representative in the underlying divorce; Ronnie Zanayed (“Zanayed”),
1
Aida states that her “legal name remains Aida Haigh, not Aida Abuelizam.” A. Haigh
Decl. ¶ 3, ECF No. 11-7 at PageID# 204.
Abuelizam’s counsel in the underlying custody dispute; and Steven 2 Wittenberg
(“Wittenberg”), Abuelizam’s former counsel in the custody dispute (collectively,
“Defendants”). Compl. at 1-3; A. Haigh Decl. ¶¶ 14, 22, 28, ECF No. 11-7 at
PageID # 207, 209, 211; Abuizam Decl. ¶ 7 ECF No. 11-11.
Before the court are two Motions to Dismiss for lack of personal
jurisdiction, one on behalf of Abuelizam and Abuizam, which also seeks an award
of attorney’s fees pursuant to Hawaii Revised Statutes (“HRS”) § 607-14.5; and
the other on behalf of Bowes. ECF Nos. 11, 13. For the reasons set forth below,
the Motions to Dismiss are GRANTED, and the Motion for Attorney’s Fees is
DENIED.
II. BACKGROUND
A.
Factual Background
This action follows a series of disputes between Plaintiff and
Defendants that began when Plaintiff lived in Illinois. As of March 2016, Plaintiff
had moved to Hawaii. 3 With the exception of this action, all legal proceedings
referenced in this action between Plaintiff and some or all Defendants occurred in
2
Although the caption spells Wittenberg’s first name as “Stephen,” the correct spelling is
“Steven.” See A. Haigh Decl. ¶ 22.
3
Plaintiff states that he resided in Hawaii in early March 2016. Haigh Decl. ¶ 19, ECF
No. 23. Abuelizam states that Plaintiff moved to Hawaii sometime in early January or February
2016. A. Haigh Decl. ¶¶ 8, 15, ECF No. 11-7 at 2, 4.
2
Illinois or Indiana courts. And although the Complaint and briefing on the instant
Motions include details related to those legal proceedings and other disputes
between the parties, that history need not be repeated in detail here. Thus, the
court sets forth only those facts necessary to determine the instant Motions.
As alleged in the Complaint, 4 Plaintiff and Abuelizam have waged
“an extremely contentious divorce and custody battle,” in the “Circuit Court of
Cook County, Illinois for over six years.” Compl. ¶¶ 16, 23. In addition, at some
point Abuelizam allegedly gave false and misleading documents and testimony to
the Indiana Supreme Court Disciplinary Commission, resulting in Plaintiff being
“disbarred from the practice of law in Indiana.” Id. ¶¶ 26, 27, 189-90, 192, 194,
203, 235, 243. Plaintiff now resides in Hawaii, Defendants Abuelizam and
Abuizam are citizens of and reside in Indiana, and Defendants Zanayed, Bowes,
and Wittenberg are citizens of and reside in Illinois. Id. ¶¶ 4-15.
In the course of these underlying proceedings, and thereafter,
Defendants allegedly have engaged in multiple actions intended to harm Plaintiff.
Id. ¶ 18. The Complaint is rife with allegations of misrepresentations by
Defendants in connection with those proceedings that resulted in financial harm to
4
For purposes of a motion to dismiss for lack of personal jurisdiction, the court construes
the Complaint’s factual allegations as true. See Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th
Cir. 2008).
3
Plaintiff, his loss of primary custody of his minor daughter, and interference with
Plaintiff’s relationship with his daughter.
For example, on March 18, 2016, Abuelizam and Abuizam allegedly
prevented Plaintiff from picking up his daughter from school in Illinois to begin
court-ordered visitation with Plaintiff in Hawaii during the daughter’s spring break.
Id. ¶¶ 274-91. This resulted in Plaintiff and his daughter missing their flight to
Hawaii, Plaintiff expending more money to stay an extra night in Illinois and to
purchase new airline tickets, and Plaintiff and his daughter spending less time
together in Hawaii. Id. ¶¶ 292-95.
In addition, Abuelizam used Hawaii police officers to “serve[] a
subpoena on Dr. Espiritu,” Plaintiff’s current wife, in an alleged effort to threaten
Plaintiff’s relationship with Dr. Espiritu and push Plaintiff to accept Defendants’
offers to settle the underlying disputes. Id. ¶¶ 20, 30-32; Pl.’s Opp’n at 9-10, ECF
No. 22.
The Complaint alleges that in her capacity as representative for
Plaintiff’s daughter in the underlying divorce, Bowes made false statements to the
court in Illinois and concurred with false statements by Abuelizam, resulting in
Plaintiff losing custody, being limited to supervised visitation with his daughter,
and incurring higher financial costs and debt. Id. ¶¶ 74-75, 100-07. During the
4
time Bowes represented Plaintiff’s daughter, Bowes was employed by the law firm
Rinella and Rinella Ltd., and later, as a solo practitioner. See Haigh Decl. ¶ 24,
ECF No. 23; Bowes Decl. ¶ 3, ECF No. 25-1. Rinella and Rinella has continued to
attempt to collect from Plaintiff outstanding fees owed for work performed by
Bowes. See Haigh Decl. ¶ 25, ECF No. 23; Pl.’s Ex. B, ECF No. 23-2. To be
clear, all of these court proceedings took place in Illinois.
Based on these and numerous additional allegations, the Complaint
asserts state-law tort claims for conspiracy to commit fraud, fraud, abuse of
process, intentional infliction of emotional distress, and alienation of affection. Id.
¶¶ 52-301. The Complaint also asserts a violation of Illinois criminal law, 720
Illinois Compiled Statutes 5/10-5.5, for alienation of affection and conspiracy to
abuse Plaintiff’s allotted time with his daughter. Id. ¶¶ 270-301.
B.
Procedural Background
Plaintiff filed his Complaint on December 5, 2017. ECF No.1. On
January 12, 2018, Defendants Abuelizam and Abuizam filed a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal
jurisdiction, and for attorney’s fees pursuant to HRS § 607-14.5. ECF No. 11. On
January 25, 2018, Defendant Bowes filed a Rule 12(b)(2) Motion to Dismiss for
lack of personal jurisdiction. ECF No. 13. On March 5, 2018, Plaintiff filed
5
separate Oppositions to each Motion and a Declaration. ECF Nos. 21-23. Replies
were filed on March 19, 2018. ECF Nos. 24-25. The Motions were heard on April
2, 2018.5
III. STANDARDS OF REVIEW
A.
Rule 12(b)(2)
A motion to dismiss for lack of personal jurisdiction is governed by
Rule 12(b)(2). In opposing a defendant’s Rule 12(b)(2) motion to dismiss, “the
plaintiff bears the burden of establishing that jurisdiction is proper.” Boschetto v.
Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008); see Schwarzenegger v. Fred Martin
Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). In the absence of an evidentiary
hearing, “the plaintiff need only make a prima facie showing of jurisdictional
facts.” Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1141 (9th Cir. 2017) (citing
Schwarzenegger, 374 F.3d at 800); see Menken v. Emm, 503 F.3d 1050, 1056 (9th
Cir. 2007). When considering a Rule 12(b)(2) motion, undisputed “allegations in
the complaint are deemed true, and factual disputes are to be resolved in favor of
the non-moving party.” Morrill, 873 F.3d at 1141 (citation omitted).
5
During the hearing, Plaintiff confirmed that he has not yet served Defendants Zanayed
and Wittenberg.
6
B.
Personal Jurisdiction Standard
To establish personal jurisdiction over an out-of-state defendant, a
plaintiff must show that the forum state’s long-arm statute confers jurisdiction and
that the exercise of that jurisdiction accords with federal constitutional due process
principles. Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014); Fireman’s Fund
Ins. Co. v. Nat’l Bank of Coops., 103 F.3d 888, 893 (9th Cir. 1996). Hawaii’s
long-arm statute, HRS § 634-35, reaches to the full extent permitted by the
Constitution. Cowan v. First Ins. Co., 61 Haw. 644, 649 n.4, 608 P.2d 394, 399
n.4 (1980). Thus, the court need only decide whether the exercise of personal
jurisdiction comports with federal constitutional due process principles. See
Morrill, 873 F.3d at 1141; Schwarzenegger, 374 F.3d at 801.
For due process to be satisfied, an out-of-state defendant must “have
certain minimum contacts” with the forum state such that the assertion of
jurisdiction “does not offend traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Picot v. Weston,
780 F.3d 1206, 1211 (9th Cir. 2015). “The strength of contacts required depends
on which of the two categories of personal jurisdiction a litigant invokes: specific
jurisdiction or general jurisdiction.” Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th
Cir. 2015). Minimum contacts exist where a defendant has “continuous and
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systematic general business contact” with a forum state (general jurisdiction), or
where a defendant has “sufficient contacts arising from or related to specific
transactions or activities” in the forum state (specific jurisdiction). Morrill, 873
F.3d at 1142 (citing Schwarzenegger, 374 F.3d at 800-02).
IV. DISCUSSION
A.
Specific Jurisdiction Legal Framework6
“The inquiry whether a forum State may assert specific jurisdiction
over a nonresident defendant focuses on the relationship among the defendant, the
forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (citation
and quotation marks omitted). A plaintiff cannot unilaterally create specific
jurisdiction; rather, the required relationship between a defendant and the forum
state “must arise out of contacts that the defendant himself creates with the forum
State,” and “not the defendant’s contacts with persons who reside there.” Id. at
1122. That is, “the plaintiff cannot be the only link between the defendant and the
forum.” Id.; see Kulko v. Superior Court of Cal., City & Cty. of S.F., 436 U.S. 84,
93 (1978) (declining to “find personal jurisdiction in a State . . . merely because
[the plaintiff in a child support action] was residing there”).
6
Plaintiff does not assert that Abuelizam’s, Abuizam’s, or Bowes’ contacts with Hawaii
are so substantial, continuous, and systematic to permit the exercise of general jurisdiction. The
court therefore limits its discussion to the exercise of specific jurisdiction.
8
The Ninth Circuit applies a three-part test to determine whether a
defendant has sufficient “minimum contacts” to be subject to specific personal
jurisdiction:
(1) The non-resident defendant must purposefully direct
his activities . . . with the forum or resident thereof; or
perform some act by which he purposefully avails
himself of the privilege of conducting activities in the
forum, thereby invoking the benefits and protections of
its laws;
(2) the claim must be one which arises out of or relates to
the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair
play and substantial justice, i.e. it must be reasonable.
Morrill, 873 F.3d at 1142 (quoting Schwarzenegger, 374 F.3d at 802). The
plaintiff bears the burden of satisfying the first two requirements of this test. Id. If
the plaintiff succeeds, “the burden then shifts to the defendant to present a
compelling case that the exercise of jurisdiction would not be reasonable.” Id.
(citation and quotation marks omitted). To establish the first prong — purposeful
direction of an activity at the forum state — the plaintiff must show that the
defendant “(1) committed an intentional act, (2) expressly aimed at the forum state,
(3) causing harm that the defendant knows is likely to be suffered in the forum
state.” Id. (citation and quotation marks omitted). “[R]andom, fortuitous, or
attenuated contacts” do not suffice. Burger King Corp. v. Rudzewicz, 471 U.S.
9
462, 475 (1985). Nor is the mere individualized targeting of a plaintiff sufficient.
See Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1070 (9th Cir. 2017)
(“[W]e now hold that while a theory of individualized targeting [at a plaintiff] may
remain relevant to the minimum contacts inquiry, it will not, on its own, support
the exercise of specific jurisdiction, absent compliance with what Walden
requires.”).
B.
Application of Legal Standard
Plaintiff’s Complaint asserts that this court has personal jurisdiction
over Defendants “due to Defendants’ actions against [Plaintiff], a resident of this
district.” Compl. ¶ 3, ECF No. 1. But as Walden clearly establishes, the mere fact
that Plaintiff resides in Hawaii is not sufficient to confer specific personal
jurisdiction over Defendants. See Axiom Foods, Inc., 874 F.3d at 1070. Nor does
the random, fortuitous fact that Plaintiff relocated to Hawaii suffice to establish the
first prong of the Ninth Circuit’s test for minimal contacts — purposeful direction
of an activity at Hawaii.
1.
Bowes
Plaintiff alleges that Rinella and Rinella, an Illinois law firm,
continues to attempt to collect fees for work Bowes performed in connection with
the underlying divorce proceeding, and therefore argues that Bowes has
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purposefully directed activities at Hawaii. See Pl.’s Opp’n at 6-8, ECF No. 21; see
also Haigh Decl. ¶¶ 24-26, ECF No. 23. But Plaintiff does not assert that Bowes
herself has engaged in or directed any of these collection activities. Nor has
Plaintiff alleged that Bowes was even aware of, or would benefit from, these
collection activities.
Further, there is no factual basis upon which Plaintiff could allege that
Bowes purposefully directed any activity toward Hawaii. Bowes, who worked at
Rinella and Rinella until February 28, 2013, states that until Plaintiff filed his
Opposition to the instant Motion, she was unaware that “Rinella and Rinella, Ltd.
had obtained a judgment against [Plaintiff] . . . for fees incurred by [her] as the
child’s representative while [she] was an employee” of that firm. Bowes Decl.
¶ 10. Bowes did not participate in obtaining the judgment, will not receive any
benefit from the judgment or monies collected under the judgment, and has “not
“directed any actions toward Hawaii or [Plaintiff] in Hawaii in any attempt by
Rinella and Rinella, Ltd. to collect” fees for her work while employed by that firm.
Id. ¶¶ 10-11. Bowes further states that she has not (1) hired anyone to collect
payment from Plaintiff for fees incurred when she was a solo practitioner,
(2) “mailed bills or any other correspondence . . . to [Plaintiff] in Hawaii,”
11
(3) sen[t] bills to [Plaintiff] by email,” or (4) “directed any actions toward Hawaii
or [Plaintiff] in Hawaii” in connection with fees incurred while she was a solo
practitioner. Bowes Decl. ¶¶ 7, 9.
Plaintiff also contends that because Bowes allegedly committed fraud
and deceit while representing Plaintiff’s daughter, her continued failure to correct
certain misrepresentations constitutes an intentional act causing harm to Plaintiff in
Hawaii. This argument is similarly without merit. Even assuming the truth of
Plaintiff’s allegations, the only connection between Bowes and Hawaii is
Plaintiff’s residence here. And as set forth above, Walden and Burger King
unambiguously preclude a finding of the requisite “minimum contacts” on this
basis. See Walden, 134 S. Ct. at 1122; Burger King Corp., 471 U.S. at 475; Axiom
Foods, Inc., 874 F.3d at 1071 (“The foreseeability of injury in a forum is not a
sufficient benchmark for exercising personal jurisdiction.”) (quoting Burger King
Corp., 471 U.S. at 474).
Thus, Plaintiff has failed to establish that Bowes has the requisite
minimum contacts with Hawaii.
2.
Abuelizam and Abuizam
Plaintiff alleges that the following activities by Abuelizam suffice to
establish personal jurisdiction: (1) making general threats to harm Plaintiff; and
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(2) serving a subpoena on Dr. Espiritu in Hawaii. Pl.’s Opp’n at 7-10, ECF No.
22; see also Haigh Decl. ¶¶ 15-17, ECF No. 23. And Plaintiff argues that personal
jurisdiction is established as to both Abuelizam and Abuizam based on their joint
actions to prevent Plaintiff from picking up his daughter from school in Illinois for
a visit to Hawaii. Pl.’s Opp’n at 11-12, ECF No. 22; see also Haigh Decl. ¶¶ 1923, ECF No. 23. None of these allegations is sufficient.
As to each of these allegations, Plaintiff is again the one and only link
between these Defendants and Hawaii. First, Abuelizam’s alleged threats are
against Plaintiff personally regardless of where he resides and therefore do not
have an independent connection to Hawaii. See Walden, 134 S. Ct. at 1122;
Burger King Corp., 471 U.S. at 475; Axiom Foods, Inc., 874 F.3d at 1071.
Second, Plaintiff does not allege that the subpoena served on Dr.
Espiritu was issued pursuant to any legal action initiated by Abuelizam in Hawaii.
Rather, the subpoena was issued in connection with legal proceedings outside of
Hawaii. Therefore, service of the subpoena in Hawaii created, at best, only an
attenuated affiliation between Abuelizam and Hawaii that is insufficient under both
Walden and Burger King. That is, Abuelizam’s alleged service of a subpoena on
Plaintiff’s wife in Hawaii is no more than a fortuitous by-product of Plaintiff’s
residence in Hawaii. As in Walden, Hawaii is “only implicated by the
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happenstance of Plaintiff’s residence”; if Plaintiff had resided in another state, he
“would have experienced this same alleged tortious conduct in [that state], or
wherever else [he] might have resided.” Morrill, 873 F.3d at 1146 (citing and
applying Walden, 134 S. Ct. at 1125, under analogous circumstances); see also
Burger King Corp., 471 U.S. at 475 (determining that such “random, fortuitous, or
attenuated contacts” do not suffice to establish the requisite purposeful direction of
activity at the forum state).
During the hearing, Plaintiff cited Williams v. Yamaha Motor Co.,
Ltd., 851 F.3d 1015 (9th Cir. 2017) to support an argument that Abuelizam is
subject to personal jurisdiction under agency principles based on her use of Hawaii
police officers to serve the subpoena. Williams recognized that the Supreme Court
has “left open the question of whether an agency relationship might justify the
exercise of specific jurisdiction.” Id. at 1023 (citing Daimler, 134 S. Ct. at 759
n.13). But Williams did not address under what circumstances an agency
relationship might be sufficient to establish specific jurisdiction. Moreover,
Williams was decided prior to Morrill, which rejected specific jurisdiction where
the defendants engaged in multiple actions, including the service of subpoenas, in
the forum state. Thus, Plaintiff’s reliance on Williams is not persuasive.
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And third, Abuelizam’s and Abuizam’s actions in Illinois —
preventing Plaintiff from picking up Plaintiff’s daughter from school in Illinois —
fail for the same reason. That is, Abuelizam’s and Abuizam’s conduct caused
Plaintiff to have less time with his daughter in Hawaii only because Plaintiff
resides in Hawaii. See Walden, 134 S. Ct. at 1122; Burger King Corp., 471 U.S. at
475; Axiom Foods, Inc., 874 F.3d at 1070-71.
In sum, because Plaintiff failed to establish the necessary minimum
contacts between Hawaii and Defendants Bowes, Abuelizam, and Abuizam, the
Motions to Dismiss for lack of personal jurisdiction are GRANTED.
C.
Attorney’s Fees
Abuelizam and Abuizam seek an award of attorney’s fees pursuant to
HRS § 607-14.5. This statute authorizes the imposition of attorney’s fees against a
party “upon a specific finding that all or a portion of the party’s claim or defense
was frivolous . . . and [was] not reasonably supported by the facts and the law[.]”
Haw. Rev. Stat. § 607-14.5(a), (b). A claim is “frivolous” if it is “manifestly and
palpably without merit, so as to indicate bad faith on the pleader’s part such that
argument to the court was not required.” Lee v. Haw. Pac. Health, 121 Haw. 235,
246, 216 P.3d 1258, 1269 (Haw. Ct. App. 2009) (quoting Doe v. Doe, 118 Haw.
268, 285, 188 P.3d 782, 799 (Haw. Ct. App. 2008)). That is, a claim must not only
15
“be without merit, there must be a showing of bad faith.” Tagupa v. VIPDesk, 135
Haw. 468, 479, 353 P.3d 1010, 1021 (2015) (citations omitted); see Lee, 121 Haw.
at 246-47, 216 P.3d at 1269-70 (denying § 607-14.5 sanctions where plaintiff filed
lawsuit before exhausting administrative remedies, as required, because, although
her legal arguments were without merit, the plaintiff did not act in bad faith).
Here, Abuelizam and Abuizam contend that Plaintiff acted in bad
faith by “deliberate[ly] filing . . . a vindictive complaint in a court lacking
jurisdiction over Defendants.” Mot. at 24-26. Defendants argue that having been
trained as an attorney, Plaintiff “must know that a federal court’s personal
jurisdiction over out-of-state defendants cannot be based on his in-state residency
alone.” Id. at 25 (emphasis omitted). And Defendants point to allegations in the
Complaint and Plaintiff’s Opposition as evidence of the “nasty, vindictive tenor”
of the instant lawsuit. Reply at 17, ECF No. 24.
Although Plaintiff is a trained attorney, and the court finds his
arguments for specific jurisdiction to be without merit, the court declines to impose
sanctions of attorney’s fees at this time. First, the briefing includes allegations of
unbecoming behavior by Plaintiff, Abuelizam, and Abuizam. The court is in no
position, nor is it necessary, to determine which party, if any, has the moral upper
hand. Second, the court is unaware of any legal precedent applying § 607-14.5 to
16
the improper assertion of personal jurisdiction. Third, the most relevant Ninth
Circuit caselaw interpreting Walden was filed fairly recently, and the courts
continue to clarify the circumstances under which specific jurisdiction may be
found. In sum, although the question of personal jurisdiction over these
Defendants was not close, the court does not find that Plaintiff’s unsuccessful
arguments were asserted in bad faith. Thus, the Motion for Attorney’s Fees is
DENIED.
V. CONCLUSION
Based on the foregoing, the court GRANTS Defendants’ Motions to
Dismiss for Lack of Personal Jurisdiction, and DENIES Defendants’ Motion for
Attorney’s Fees Under HRS § 607-14.5.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 3, 2018.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Haigh v. Abuelizam, et al., Civ. No. 17-00582 JMS-KSC, Order (1) Granting Defendants’
Motions to Dismiss, and (2) Denying Motion for Attorney’s Fees Under HRS § 607-14.5, ECF
Nos. 11, 13
17
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