Yamano v. State of Hawai'i Judiciary et al

Filing 38

ORDER Granting State of Hawaii Judiciary's, Doctor Kobayashi's, and Doctor Huang's Motions To Dismiss re: 10 11 15 ."The Complaint and this action are DISMISSED.The Clerk of Court is directed to enter judgment for Defen dants and to close this case." Signed by JUDGE SUSAN OKI MOLLWAY on 7/3/2018. (cib, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served 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
YURIE YAMANO,

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII JUDICIARY,
DOCTOR KEIICHI KOBAYASHI, AND )
)
DOCTOR KATIE HUANG,
)
)
Defendants.
_____________________________ )

Civ. No. 18-00078 SOM-RLP
ORDER GRANTING STATE OF
HAWAII JUDICIARY’S, DOCTOR
KOBAYASHI’S, and DOCTOR
HUANG’S MOTIONS TO DISMISS

ORDER GRANTING STATE OF HAWAII JUDICIARY’S,
DOCTOR KOBAYASHI’S, and DOCTOR HUANG’S MOTIONS TO DISMISS
I.

INTRODUCTION.
Plaintiff Yurie Yamano, proceeding pro se, asserts

that Defendants violated her Fifth and Fourteenth Amendment
rights.

The allegations focus on medical treatment Yamano

received from Doctor Keiichi Kobayashi and Doctor Katie Huang
related to the removal of Yamano’s gallbladder in January 2014.
Yamano asserts that Kobayashi and Huang violated Hawaii state
malpractice laws and that the State of Hawaii Judiciary denied
her due process when she brought her malpractice claims in state
court.
Each Defendant has filed a motion to dismiss the
Complaint.

See ECF Nos. 10, 11, and 15.

The court grants the

motions and, seeing no way that Yamano’s claims can proceed in
federal court, dismisses this case.

II.

BACKGROUND.
Yamano alleges that, in January 2012, she began

experiencing severe stomach pains and sought treatment from
Kobayashi.

See ECF No. 1, PageID # 2.

According to the

Complaint, Kobayashi diagnosed Yamano with gastroenteritis, but
during an emergency room visit in January 2014, another doctor
determined that she was suffering from gallstones.
No. 1, PageID #s 2-3.

See ECF

Yamano alleges that she suffered

“excruciating pain” because Kobayashi had misdiagnosed her in
2012.

See ECF No. 1, PageID #s 3, 5.
Yamano further alleges that on January 31, 2014,

following her emergency room visit, Huang performed surgery on
Yamano to remove her gallbladder.

See ECF No. 1, PageID # 3.

Yamano alleges that she consented only to having her gallstones
removed, not her entire gallbladder.

See ECF No. 1, PageID # 3.

Yamano alleges that, as a result of the surgery, she suffers
from various digestive issues if she eats certain foods.

See

ECF No. 1, PageID #s 5-6.
In October 2014, Yamano filed a medical malpractice
suit against Kobayashi and Huang in Hawaii state court. 1

1

See ECF

This court takes judicial notice of court documents filed in
Yamano’s state malpractice suit because they relate directly to
the issues raised here. In adjudicating a motion to dismiss
brought under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, “a court may take judicial notice of matters of
public record . . . as long as the facts noticed are not subject
2

No. 10-5, PageID # 54.

Kobayashi filed a motion to dismiss on

the ground that Chapter 671 of Hawaii Revised Statutes required
Yamano to file a claim with the Medical Inquiry and Conciliation
Panel prior to filing her complaint in state court.
No. 13-5, PageID #s 126-27.
case was dismissed.

See ECF

The motion was granted, and the

ECF No. 10-6, PageID #s 61-62.

Yamano

appealed, and the case eventually reached the Hawaii Supreme
Court, which granted Yamano’s application for writ of certiorari
but later dismissed the matter on the ground that the writ had
been improvidently granted.

ECF No. 10-11, PageID #s 73-74.

On February 28, 2018, Yamano filed this Complaint
under 42 U.S.C. § 1983 for violations of her Fifth and
Fourteenth Amendment rights.

See ECF No. 1, PageID # 1.

Though

unclear, the Complaint appears to allege that the State of
Hawaii Judiciary violated Yamano’s due process rights by
dismissing her certiorari proceedings, thereby not “recognizing
the Constitutional Due process violations” caused by the
requirement that she first file a claim with the Medical Inquiry

to reasonable dispute.” Intri–Plex Techs., Inc. v. Crest Grp.,
Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (internal quotations
and brackets omitted). Matters of public record that may be
judicially noticed include documents filed with courts, “both
within and without the federal judicial system, if those
proceedings have a direct relation to the matters at issue.”
United States ex rel. Robinson Rancheria Citizens Council v.
Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (quoting St.
Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th
Cir.1979)).
3

and Conciliation Panel.

See ECF No. 1, PageID #s 4, 6-7.

The

Complaint also alleges medical malpractice claims against
Kobayashi and Huang.

See ECF No. 1, PageID #s 5-6.

The

Complaint seeks $10 million in compensatory damages and $10
million in punitive damages against each Defendant.
No. 1, PageID #s 7-8.

See ECF

The Complaint also seeks declaratory

judgment against the State of Hawaii Judiciary “for grossly
violating the Plaintiff’s rights acting in absence of all
jurisdiction” and “not following public policy which is also
considered as [sic] treason and not a function of a sitting
judge.” 2

ECF No. 1, PageID # 8.
In response, each Defendant filed a motion to dismiss.

See ECF Nos. 10, 11, and 15.
III.

MOTION TO DISMISS STANDARDS.
A.

Rule 12(b)(1) (Lack of Subject-Matter
Jurisdiction).

Under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, a complaint may be dismissed for lack of subject

2

The Complaint also seeks injunctive relief in the form of
“flyers [to be] handed out or located in the jacket the hospital
provides to every patient” informing them of the procedure for
submitting a malpractice claim against a doctor. ECF No. 1,
PageID # 7. Even if Yamano prevailed on her claims against
Defendants, nothing would require the unnamed hospital to
provide the requested relief. As a result, any injury caused by
hospital flyers or a lack thereof would not be redressable by
this court. See Glanton ex rel. ALCOA Prescription Drug Plan v.
AdvancePCS Inc., 465 F.3d 1123, 1125 (9th Cir. 2006) (noting
that when there is “no redressability, [there is] no standing”).
4

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[,]” while a factual
attack “disputes the truth of the allegations that, by
themselves, would otherwise invoke federal jurisdiction.”

Id.

Before this court is a facial attack.
In deciding a Rule 12(b)(1) facial attack motion, a
court must assume the facts alleged in the complaint to be true
and construe them in the light most favorable to the nonmoving
party.

Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136,

1139 (9th Cir. 2003).

However, courts “do not accept legal

conclusions in the complaint as true, even if ‘cast in the form
of factual allegations.’”

Lacano Invs., LLC v. Balash, 765 F.3d

1068, 1071 (9th Cir. 2014) (quoting Doe v. Holy See, 557 F.3d
1066, 1073 (9th Cir. 2009)) (emphasis in original).
B.

Rule 12(b)(5) (Insufficient Service of Process).

Rule 12(b)(5) of the Federal Rules of Civil Procedure
allows dismissal of a complaint based on insufficient service of
process.

Federal courts cannot exercise personal jurisdiction

over a defendant without proper service of process.

Omni

Capital Int’l, Ltd. v. Wolff & Co., 484 U.S. 97, 104 (1987).
“[S]ervice of process is the mechanism by which the court
5

actually acquires the power to enforce a judgment against the
defendant’s person or property.”

SEC v. Ross, 504 F.3d 1130,

1138 (9th Cir. 2007) (internal modifications omitted).
To determine whether service of process was proper, a
court looks to the requirements of Rule 4 of the Federal Rules
of Civil Procedure.

Gidding v. Anderson, No. C–07–04755 JSW,

2008 WL 4065814, at *1 (N.D. Cal. Aug. 27, 2008); 5B Charles A.
Wright & Arthur R. Miller, Federal Practice & Procedure § 1353
(3d ed. 2009).

“Rule 4 is a flexible rule that should be

liberally construed to uphold service so long as a party
receives sufficient notice of the complaint.”

United Food &

Commercial Workers Union, Local 197 v. Alpha Beta Co., 736 F.2d
1371, 1382 (9th Cir. 1984).

However, “neither actual notice nor

simply naming the defendant in the complaint will provide
personal jurisdiction” absent substantial compliance with its
requirements.

Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.

1986).
The burden is on the party claiming proper service to
establish valid service.

Cranford v. United States, 359

F.Supp.2d 981, 984 (E.D. Cal. 2005); Federal Practice &
Procedure § 1353 (“The great weight of the case law is to the
effect that the party on whose behalf service has been made has
the burden of establishing its validity.”).

A court may weigh

the evidence and resolve disputed issues of fact in accordance
6

with Rule 12(d).

Taniguchi v. Native Hawaiian Office(s) of the

Attorney Gen., Civ. No. 09–00117 SOM–KSC, 2009 WL 1404731, at *2
(D. Haw. May 15, 2009).
C.

Rule 12(b)(6) (Failure to State a Claim Upon
Which Relief Can Be Granted).

Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint may be dismissed for failure to state a
claim upon which relief can be granted.

The court’s review is

generally limited to the contents of a complaint.

Sprewell v.

Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);
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.

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).

However, the court

may take judicial notice of and consider matters of public
record without converting a Rule 12(b)(6) motion to dismiss into
a motion for summary judgment.

Lee v. City of Los Angeles, 250

F.3d 668, 688 (9th Cir. 2001); Emrich v. Touche Ross & Co., 846
F.2d 1190, 1198 (9th Cir. 1988).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact 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.

7

1996).

However, 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 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either “lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”

Balistreri v.

Pacifica Police Dep’t, 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)

(internal citations omitted); accord Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“[T]he pleading standard . . . does not require
detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”
(internal quotation marks omitted)).

“[A] plaintiff’s

obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (internal quotation marks omitted).
8

The complaint must “state a claim to relief that is plausible on
its face.”

Id. at 570.

“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.”
IV.

Iqbal, 556 U.S. at 678.

ANALYSIS.
Yamano seeks relief for what she believes was improper

medical treatment of her gallstones and removal of her
gallbladder.

After an unsuccessful malpractice suit in state

court, she now asserts claims under 42 U.S.C. § 1983 in federal
court.

Section 1983 provides:
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[.]

42 U.S.C. § 1983 (1996).
While the court is sympathetic to Yamano’s medical
issues, her claims cannot survive Defendants’ motions to
dismiss.

First, Yamano’s claims against the State of Hawaii

Judiciary are barred by the Eleventh Amendment.

Second,

Kobayashi and Huang are not liable under § 1983 because they

9

were not acting under color of state law when treating Yamano.
Third, the Complaint was not property served on Kobayashi and
Huang.

Lastly, her state malpractice claims against Kobayashi

and Huang are barred by the two-year statute of limitations in
section 657-7.3 of Hawaii Revised Statutes.

This court

dismisses Yamano’s claims against all Defendants.
A.

The Eleventh Amendment Bars Yamano’s Claims
Against the State of Hawaii Judiciary.

Yamano seeks monetary relief and declaratory judgment
against the State of Hawaii Judiciary based on alleged
violations of her due process rights.

ECF No. 1, PageID #s 7-8.

Her claims appear to focus on the Hawaii Supreme Court’s
decision that a writ of certiorari had been improvidently
granted.

See ECF No. 1, PageID #s 6-7.

These claims are barred

by the Eleventh Amendment.
The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.”
XI.

U.S. Const. amend.

Under the Eleventh Amendment, a state is immune from

lawsuits for monetary damages or other retrospective relief
brought in federal court by its own citizens or citizens of
other states.

Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437

10

(2004); Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 105-06
(1984).

Federal court actions against agencies or

instrumentalities of a state, including state courts, are also
barred by the Eleventh Amendment.

Sato v. Orange Cty. Dep't of

Educ., 861 F.3d 923, 928 (9th Cir. 2017); Blount v. Sacramento
Cty. Superior Court, 559 F. App’x 623, 623 (9th Cir. 2014).
Thus, the State of Hawaii Judiciary, as an
instrumentality of the state, is immune from Yamano’s claims for
monetary damages and retrospective relief.

The declaratory

judgment that Yamano seeks is retrospective in nature because it
would require a determination of whether a past constitutional
violation occurred when the Hawaii Supreme Court declined to
review her case.

Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d

835, 848 (9th Cir. 2002), opinion amended on denial of reh’g,
312 F.3d 416 (9th Cir. 2002) (“[W]e consider declaratory relief
retrospective to the extent that it is intertwined with a claim
for monetary damages that requires us to declare whether a past
constitutional violation occurred.” (quoting People for the
Ethical Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1202
n.2 (10th Cir. 2002))).
There are exceptions to Eleventh Amendment sovereign
immunity, but none applies here.

Congress may exercise its

power under the Fourteenth Amendment to override Eleventh
11

Amendment immunity.

Will v. Mich. Dep’t of State Police, 491

U.S. 58, 66 (1989).

There is no indication that Congress has

taken such action.

See id. (stating that it is “clear” that

“Congress, in passing § 1983, had no intention to disturb the
States’ Eleventh Amendment immunity and so to alter the federal–
state balance in that respect”).
The Eleventh Amendment is also inapplicable when a
state unequivocally waives sovereign immunity, id., but the
State of Hawaii Judiciary has not done that here.

The Complaint

refers to sections 662-2 and 662-3 of Hawaii Revised Statutes as
bases for this court’s jurisdiction.

ECF No. 1, PageID # 1.

These statutes provide that the State of Hawaii consents to suit
in state court under certain circumstances. 3

3

However, “this

Section 662-2 of Hawaii Revised Statutes provides:
The State hereby waives its immunity for
liability for the torts of its employees and
shall be liable in the same manner and to
the same extent as a private individual
under like circumstances, but shall not be
liable for interest prior to judgment or for
punitive damages.

HRS § 662-2 (1972).

Section 662-3 provides:

The circuit courts of the State and, except
as otherwise provided by statute or rule,
the state district courts shall have
original jurisdiction of all tort actions on
claims against the State, for money damages,
accruing on and after July 1, 1957, for
injury or loss of property, or personal
injury or death caused by the negligent or
12

district’s federal courts have recognized that, although the
State of Hawaii had consented to be sued in chapter 662 of
Hawaii Revised Statutes with respect to torts asserted in state
court, that consent did not operate as a waiver by the State of
Hawaii of its Eleventh Amendment immunity in federal court.”
Cislo v. Fuchigami, No. CV 17-00487 SOM/KJM, 2017 WL 6559753, at
*5 (D. Haw. Dec. 22, 2017).
In her opposition, Yamano argues that Eleventh
Amendment immunity does not apply to her claims against the
State of Hawaii Judiciary, citing Mireles v. Waco, 502 U.S. 9
(1991) (per curiam), and Stump v. Sparkman, 435 U.S. 349 (1978).
ECF No. 22, PageID # 220.
support her argument.

These cases are inapposite and do not

In both cases, the Supreme Court

addressed judicial immunity against individual judges, not
sovereign immunity against states and its instrumentalities.
Mireles, 502 U.S. at 9-10; Stump, 435 U.S. at 355-56.
Furthermore, the Court held in both instances that judicial
immunity barred suit.

Mireles, 502 U.S. at 11-12; Stump, 435

U.S. at 359-60.
This court concludes that the Eleventh Amendment bars
Yamano’s claim under § 1983 for monetary damages and
wrongful act or omission of any employee of
the State while acting within the scope of
the employee’s office or employment.
HRS § 662-3 (2015).
13

retrospective declaratory relief. 4

See Mitchell v. L.A. Cmty.

Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988) (holding that the
Eleventh Amendment bars § 1983 claims).
B.

Kobayashi and Huang are Not “State Actors” Under
§ 1983.

Yamano asserts that Kobayashi and Huang violated her
due process rights in their treatment of her digestive issues.
ECF No. 1, PageID #s 5-6.

“To sustain an action under section

1983, a plaintiff must show (1) that the conduct complained of
was committed by a person acting under color of state law; and
(2) that the conduct deprived the plaintiff of a federal
constitutional or statutory right.”

Hydrick v. Hunter, 500 F.3d

978, 987 (9th Cir. 2007) (citation omitted), vacated and
remanded on other grounds, 556 U.S. 1256 (2009); 42 U.S.C.
§ 1983.

Kobayashi and Huang correctly argue that they cannot be

considered “state actors” under § 1983 because they did not act
under color of state law in their treatment of Yamano.

ECF

No. 10-3, PageID #s 43-47; ECF No. 11-1, PageID #s 91-92.
A defendant has acted under color of state law when he
or she has “exercised power ‘possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the
4

The court also notes that section 602-59 of Hawaii Revised
Statutes provides broad discretion to the Hawaii Supreme Court
with respect to certiorari petitions. See HRS § 602-59(a)
(2017) (stating that “the acceptance or rejection” of an
application for a writ of certiorari “shall be discretionary
upon the supreme court”).
14

authority of state law.’”

West v. Atkins, 487 U.S. 42, 49

(1988) (quoting United States v. Classic, 313 U.S. 299, 326
(1941)).

Generally, private parties are not acting under color

of state law unless they are determined to be “willful
participant[s] in joint action with the State or it agents.”
Kirtley v. Rainy, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting
Dennis v. Sparks, 449 U.S. 24, 27 (1980)).
The Ninth Circuit has recognized four tests to
identify state action: “(1) public function; (2) joint action;
(3) governmental compulsion or coercion; and (4) governmental
nexus.”

Kirtley, 326 F.3d at 1092 (quoting Sutton v. Providence

St. Joseph Med. Ctr., 192 F.3d 826, 835–36 (9th Cir. 1999)).
These tests are aimed at determining whether “the alleged
infringement of federal rights [is] fairly attributable to the
government.”

Kirtley, 326 F.3d at 1096 (quoting Sutton, 192

F.3d at 835) (brackets in original).
The public function test asks whether “private
individuals or groups are endowed by the State with powers or
functions governmental in nature.”

Kirtley, 326 F.3d at 1093

(quoting Lee v. Katz, 276 F.3d 550, 554-55 (9th Cir. 2002)).
The joint action test asks whether “the state has so far
insinuated itself into a position of interdependence with the
private entity that it must be recognized as a joint participant
in the challenged activity.”

Kirtley, 326 F.3d at 1093 (quoting
15

Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th
Cir. 1995)).

Under the compulsion test, we consider “whether

the coercive influence or ‘significant encouragement’ of the
state effectively converts a private action into a government
action.”
842).

Kirtley, 326 F.3d at 1094 (quoting Sutton, 192 F.3d at

Finally, the nexus test asks whether “there is such a

close nexus between the State and the challenged action that the
seemingly private behavior may be fairly treated as that of the
State itself.”

Id. at 1095 (quoting Brentwood Acad. v. Tenn.

Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)).
Yamano’s claims against Kobayashi and Huang do not
satisfy any of these tests.

Yamano refers only to conduct

stemming from the doctors’ respective private practices and
their treatment of Yamano’s medical issues.
PageID #s 2-6.

See ECF No. 1,

The alleged infringement on Yamano’s rights by

Kobayashi and Huang bears no relation to any state action.
Therefore, Kobayashi and Huang cannot be said to have acted
under color of state law, and Yamano’s § 1983 claims against
Kobayashi and Huang are dismissed.

16

C.

Yamano Did Not Properly Serve Kobayashi and
Huang.

Neither Kobayashi nor Huang was served in accordance
with the Federal Rules of Civil Procedure. 5
Yamano served the doctors’ respective counsel from the
earlier state lawsuit.
PageID # 29.

ECF No. 7, PageID # 27; ECF No. 9,

Yamano argues that such service was proper given

Rule 4(e)(2)(C), which allows for service to “an agent
authorized by appointment or by law to receive service of
process.”

ECF No. 22, PageID # 219; Fed. R. Civ. P. 4(e)(2)(C).

However, Kobayashi and Huang assert that they did not authorize
their prior counsel to accept service in this case.
3, PageID # 50; ECF No. 11-1, PageID # 90.

ECF No. 10-

Representation by

certain counsel in an earlier lawsuit does not necessarily
indicate authorization to accept service in future, separate
suits.

United States v. Ziegler Bolt & Parts Co., 111 F.3d 878,

881 (Fed. Cir. 1997) (“The mere relationship between a defendant
and his attorney does not, in itself, convey authority to accept
service.”); see also 4A Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 1097 (4th ed. 2018)
(“[D]efendant’s attorney probably will not be deemed an agent

5

This order does not address the sufficiency of service on the
Hawaii Judiciary. This court dismisses claims against the
Hawaii Judiciary on jurisdictional grounds and therefore does
not address nonjurisdictional challenges premised on
hypothetical jurisdiction.
17

appointed to receive process absent a factual basis for
believing that an appointment of this type has taken place.”).
Thus, the Complaint was not properly served on
Kobayashi and Huang and is dismissed on that ground.
D.

Yamano’s Remaining State Claims are Barred by
the Applicable Statute of Limitations.

What remains of the Complaint are Yamano’s state
malpractice claims against Kobayashi and Huang, over which this
court may exercise supplemental jurisdiction.

Kobayashi and

Huang argue that Yamano’s medical malpractice claims are barred
by section 657-7.3 of Hawaii Revised Statutes.
PageID #s 47-49; ECF No. 11-1, PageID #s 86-87.

ECF No. 10-3,
Section 657-7.3

governs medical torts and provides:
[(a)] No action for injury or death against
a chiropractor, clinical laboratory
technologist or technician, dentist,
naturopathic physician, nurse, nursing home
administrator, dispensing optician,
optometrist, osteopath, physician or
surgeon, physical therapist, podiatrist,
psychologist, or veterinarian duly licensed
or registered under the laws of the State,
or a licensed hospital as the employer of
any such person, based upon such person’s
alleged professional negligence, or for
rendering professional services without
consent, or for error or omission in such
person’s practice, shall be brought more
than two years after the plaintiff
discovers, or through the use of reasonable
diligence should have discovered, the
injury, but in any event not more than six
years after the date of the alleged act or
omission causing the injury or death. This
six-year time limitation shall be tolled for
18

any period during which the person has
failed to disclose any act, error, or
omission upon which the action is based and
which is known to the person.
HRS § 657-7.3 (2010) (brackets in original).

Thus, under the

applicable statute of limitations, Yamano was required to bring
her malpractice claims no more than two years after discovering
her alleged injuries from the treatment by Kobayashi and Huang.
The latest date provided in the Complaint is February
2, 2014, when Yamano “received her discharge instructions in the
hospital folder claiming that they did a Laparoscopic
Cholescystectomy (Medical terms for Removing the Gallbladder).”
ECF No. 1, PageID #s 3-4 (emphases in original).

It is more

than two years since Yamano allegedly learned that her
gallbladder was removed without her consent.

In her opposition,

Yamano argues that the relevant date for the two-year limitation
is November 13, 2017, when the Hawaii Supreme Court ruled that
certiorari had been improvidently granted.
#s 219-20.

ECF No. 22, Page ID

However, the actions of the Hawaii Supreme Court are

irrelevant to section 657-7.3, which applies to injuries from a
“physician or surgeon . . . based upon such person’s alleged
professional negligence, or for rendering professional services
without consent, or for error or omission in such person’s
practice.”

HRS § 657-7.3.

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Yamano’s malpractice claims against Kobayashi and
Huang are barred by the two-year statute of limitations in
section 657-7.3.
V.

CONCLUSION.
The Complaint and this action are DISMISSED.
The Clerk of Court is directed to enter judgment for

Defendants and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 3, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Yurie Yamano v. State of Hawaii Judiciary, Doctor Keiichi
Kobayashi, and Doctor Katie Huang, Civ. No. 18-00078 SOM-RLP;
ORDER GRANTING STATE OF HAWAII JUDICIARY’S, DOCTOR KOBAYASHI’S,
and DOCTOR HUANG’S MOTIONS TO DISMISS.

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