Nakamoto v. County of Hawaii
Filing
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT COUNTY OF HAWAII'S MOTION TO DISMISS re 3 - Signed by JUDGE DERRICK K. WATSON on 6/7/2018. For the foregoing reasons, Nakamoto's own untimely state law claims are barred, and Defendant County of Hawaii's Motion to Dismiss, Dkt. No. 3, is GRANTED in part. The Motion is DENIED to the extent it seeks dismissal of claims brought as next friend of minors, A.N. and N.B., based upon their own injuries. (emt, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
NIKITA NAKAMOTO, Individually
and as Next Friend of A.N. and N.B.,
minors,
CIVIL NO. 18-00097 DKW-KJM
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
COUNTY OF HAWAII’S MOTION
TO DISMISS
Plaintiffs,
v.
COUNTY OF HAWAI‘I, et al.,
Defendants.
INTRODUCTION
The County of Hawai‘i seeks dismissal of Nakamoto’s state law claims in this
excessive force case, in light of her admitted failure to submit pre-suit notice of
those claims in writing to the County Clerk, as required by Hawaii Revised Statutes
(“HRS”) § 46-76 and Hawai‘i County Charter (“HCC”) § 13-18. Because
Nakamoto does not dispute that her negligence claims are barred, and the Court
determines that her individual state tort claims based upon intentional conduct are
likewise barred, by the lack of written notice to the County, the Court GRANTS in
part the County’s Motion to Dismiss. The County has failed, at least at this time, to
meet its burden of proof on its statute of limitations defense as to claims brought as
next friend of minors, A.N. and N.B., in light Hawaii’s statutory infancy tolling
provision, and the Motion is therefore DENIED in part as to those claims.
BACKGROUND
The Complaint alleges that Nakamoto was a passenger in a car driven by her
husband, Ronald K.V. Barawis, Jr., when, at approximately 12:01 a.m. on February
5, 2016, while at a drive-thru lane at a McDonald’s restaurant in Hilo, Hawaii, the
car was surrounded by numerous, unnamed County police officers. Compl. ¶ 8,
Dkt. No. 1-2. Nakamoto asserts that officers armed with assault-type rifles, without
warning or provocation, opened fire on Nakamoto and Barawis. Compl. ¶¶ 8–9.
At the time of the shooting, Nakamoto claims that she “had her hands raised, as
instructed by the policer officers,” and that she was unarmed and made “no threats or
threatening gestures.” Compl. ¶ 10. She was “struck multiple times by bullets
and/or bullet fragments, and sustained significant and permanent physical and
emotional injuries.” Compl. ¶ 9.
Nakamoto asserts the following claims against the County and unidentified
“John Doe” Hawaii Police Department officers:
11.
The acts of Defendants, as described above, constitute the
negligent and/or intentional infliction of emotional
distress.
12.
The actions of Defendants, as described above, constitute
the malicious use and or abuse of discretion.
13.
The actions of Defendant John Doe Police Officers, as
described above constitute the excessive use of force.
2
14.
The actions of Defendant John Doe Police Officers, as
described above constitute a form of assault as defined by
Chapter 707, Hawaii Revised Statutes.
Compl. ¶¶ 11–14.
Nakamoto contends that the County and the Hawaii Police Department “are
liable for the conduct of Defendant John Doe Police Officers under the doctrine of
respondeat superior, Compl. ¶ 16, and that the officers “were acting in their official
capacity as . . . police officer[s] of the [County] and/or were acting under color of
their authority as a police officer.” Compl. ¶ 15. The Complaint also asserts that
the County is liable for its own negligent supervision and hiring, that it was
“otherwise negligent,” and failed to effectively train its officers with regard to the
excessive use of force. Compl. ¶ 17.
Nakamoto seeks damages for her own injuries as well as loss of consortium
damages for her two minor children. Because Barawis is the father of N.B.,
Nakamoto seeks damages for the loss of affection and care N.B. would have
received from Barawis, but for the incident. Compl. ¶¶ 23–24. She brings claims,
as next friend, on behalf of the minors, alleging that they “suffered severe mental
and emotional distress,” due to the death of Barawis, and “over the injuries to their
mother.” Compl. ¶ 22–24.
The Complaint was filed in the state Circuit Court of the Third Circuit on
January 12, 2018, and served on the County on February 27, 2018. See Decl. of
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Counsel ¶ 4, Notice of Removal, Dkt. No. 1-1. On March 15, 2018, the County
removed the case to this district court on the basis of federal question jurisdiction, 28
U.S.C. § 1331. Notice of Removal, Dkt. No. 1.
The County moves to dismiss all state law claims with prejudice due to
Nakamoto’s failure to comply with the notice-of-claim requirements in HRS
§ 46-72 and the County Charter § 13-18, including (1) negligent infliction of
emotional distress; (2) intentional infliction of emotional distress; (3) malicious use
and/or abuse of discretion; (4) assault; and (5) any other claim sounding in
negligence. The County does not move with respect to any claims brought under
42 U.S.C. § 1983 or against the officers in their individual capacities.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be granted.” Rule
12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). The Court may dismiss a complaint either because it lacks a cognizable
legal theory or because it lacks sufficient factual allegations to support a cognizable
legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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plausible on its face.’” 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 570 (2007)).
A court may consider certain documents attached to a complaint, as well as
documents incorporated by reference in the complaint, or matters of judicial notice,
without converting a Rule 12(b)(6) motion to dismiss into a motion for summary
judgment. United States v. Ritchie, 342 F.3d 903, 908–09 (9th Cir. 2003). The
Court takes judicial notice of the pleadings and other public records attached to the
parties’ briefs. See Fed. R. Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d 668,
688–89 (9th Cir. 2001).
“A statute-of-limitations defense, if ‘apparent from the face of the complaint,’
may properly be raised in a motion to dismiss.” Seven Arts Filmed Entm’t Ltd. v.
Content Media Corp., 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Conerly v.
Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)); see also Rivera v.
Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013) (“When an affirmative
defense is obvious on the face of a complaint, . . . a defendant can raise that defense
in a motion to dismiss.”) (citing Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126,
1128–29 (9th Cir. 1999)). That said, “a complaint cannot be dismissed unless it
appears beyond doubt that the plaintiff can prove no set of facts that would establish
the timeliness of the claim.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204,
1206–07 (9th Cir. 1995) (citation and quotation marks omitted). In making such a
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determination, the Court is not “required to accept as true allegations that contradict
. . . matters properly subject to judicial notice[.]” Seven Arts, 733 F.3d at 1254
(internal quotation marks omitted). In this case, the statute of limitations issues are
apparent on the face of the Complaint as to Nakamoto’s individual state law claims,
as detailed below.
DISCUSSION
Under HRS § 46-72, an injured person must provide “notice in writing of the
injuries and the specific damages resulting” to the individual identified in the
county’s charter “within two years after the injuries accrued,” in order to hold the
County liable for tort claims. HRS § 46-72. The County’s charter provides that
written notice must be provided to the county clerk. HCC § 13-18. Even if
Nakamoto’s Complaint was sufficient written notice under Section 46-72, she did
not serve a copy of the Complaint on the County until February 27, 2018—after the
statute of limitations expired. Because Nakamoto failed to comply with the
requirements of Section 46-72, her individual state law tort claims are dismissed as
untimely. The Motion is denied in part, however, as to the claims brought as next
friend of minors, A.N. and N.B., because HRS § 657-13(1), by operation of law,
tolls the statute of limitations during their infancy.
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I.
Tort Claims Against the County For Damages Based Upon Injuries to a
Person Are Governed By the Applicable Two-Year Limitations Period
The full text of HRS § 46-72, titled “Liability for injuries or damages; notice”
states:
Before the county shall be liable for damages to any person for
injuries to person or property received upon any of the streets,
avenues, alleys, sidewalks, or other public places of the county,
or on account of any negligence of any official or employee of
the county, the person injured, or the owner or person entitled to
the possession, occupation, or use of the property injured, or
someone on the person’s behalf, within two years after the
injuries accrued shall give the individual identified in the
respective county’s charter, or if none is specified, the
chairperson of the council of the county or the clerk of the county
in which the injuries occurred, notice in writing of the injuries
and the specific damages resulting, stating fully when, where,
and how the injuries or damage occurred, the extent of the
injuries or damages, and the amount claimed.
Section 13-18 of the County Charter in turn provides:
No action shall be maintained for the recovery of damages for
any injury to persons or property by reason of negligence or
other act of any official or employee of the county unless a
written statement stating fully when, where and how the injuries
occurred, the apparent extent thereof and the tentative amount
claimed therefor shall have been filed with the county clerk
within two years after the date the injury was sustained.
Nakamoto acknowledges that her negligence-based claims are subject to the
notice provisions in HRS § 46-72 and HCC § 13-18, but advances the argument that
her claims based upon “intentional acts on the part of the Doe Police Officers . . . are
not subject to HRS § 46-72.” Mem. in Opp’n at 7, Dkt. No. 6. Nakamoto requests
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that the Court find that “the claims of assault and the intentional infliction of severe
emotional distress are not barred.” Mem. in Opp’n at 10. Because the state notice
provisions apply to claims based upon negligence as well as those based upon
intentional conduct, the Court rejects Nakamoto’s argument, and finds instead that
all of her state law claims, as pled, are subject to the two-year written notice
requirement.1
First, by their plain language, these written notice requirements are not
confined to claims for negligence. The statute applies to claims for “damages to
any person for injuries to person or property . . . or on account of any negligence of
any official or employee of the county.” HRS § 46-72 (emphasis added).
Likewise, the County Charter notice provision applies to claims for the “recovery of
damages for any injury to persons or property by reason of negligence or other act of
any official or employee of the county.” HCC § 13-18 (emphasis added).
1
Under Hawaii law, HRS § 46-72 operates as a statute of limitations. See Silva v. City & Cty. of
Honolulu, 115 Hawai‘i 1, 10–11, 165 P.3d 247, 256–57 (2007) (“[W]hile the notice requirement
set forth in HRS § 46-72 may appear to be a mere ‘condition precedent to liability,’ it ‘operates, in
reality, as a statute of limitations.’”) (quoting Salavea, 55 Haw. at 218, 517 P.2d at 53); see also
Kahale v. City & Cty. of Honolulu, 104 Hawai‘i at 343, 345, 347 & n.7, 90 P.3d at 235, 237, 239 &
n.7 (2004) (observing that the legislature affirmed its character as a statute of limitations by
enacting Act 152, 24th Leg., Reg. Sess. (2007), the preamble of which describes HRS § 46-72 as
“the statute of limitations for claims for damage and injury against the counties.”).
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Second, case law interpreting this specific notice-of-claim requirement has
not limited application of Section 46-72 to claims for negligence.2 For example, in
Kaulia v. County of Maui, the district court determined that plaintiff’s employment
discrimination claims brought under HRS Chapters 368 and 378 against a county
were “barred because Plaintiff failed to timely file written notice of his claim as is
required by HRS § 46-72.” 504 F. Supp. 2d 969, 997 (D. Haw. 2007). The district
court reasoned that Kaulia’s “claims for discrimination under HRS §§ 368 & 378 are
state law tort claims . . . [and] Plaintiff had two years . . . in which to file notice of his
claim of injuries and damages with the County.” Id. at 997 (citations and footnotes
omitted); see also id. at 997–98 n.40 (“failure to timely file written notice with the
county will bar subsequent state tort claims against the county”). Other decisions
have reached similar conclusions with respect to intentional tort claims against
counties brought under state law. See, e.g., Harris v. Cty. of Hawaii, 2017 WL
5163231, at *2 (D. Haw. Nov. 7, 2017) (describing Section 46-72 as applicable to
2
The Hawaii Supreme Court has characterized the statute as applicable to “tort claims against the
counties,” without limiting it to those sounding in negligence. See Kahale v. City & Cty. of
Honolulu, 104 Hawai‘i 341, 347–48, 90 P.3d 233, 239–40 (2004) (“HRS § 46-72, which the
legislature is free to amend, is the statute of limitations applicable to actions against the counties.
However, in order to avoid unfair prejudice to plaintiffs who have detrimentally relied upon [prior
case law] with respect to the statute of limitations governing tort claims against the counties, we
emphasize that our holding is prospective only and applies to all claims for relief accruing after the
date of this opinion.”) (emphasis added) (footnote omitted); see also id. at 348 n.8, 90 P.3d at 240
n.8 (positing that “the legislature is perfectly free to amend the statute to provide, say, for a
two-year limitations period or to repeal it altogether, in which case tort claims against the counties
would be governed by HRS § 657-7”) (emphasis added).
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“tort claims” against a county, and dismissing as untimely state law claims for
assault and battery, false arrest, false imprisonment, and intentional infliction of
emotional distress, in addition to those for negligent infliction of emotional distress,
negligent training and supervision, negligence, gross negligence, and loss of
consortium).
Here, there is no dispute that Nakamoto did not provide written notice to the
County Clerk, as required by Section 46-72 and HCC § 13-18. Cf. Harris, 2017
WL 5163231, at *2 (“Under the plain language of Section 46-72, written notice must
be provided to the County within two years of injury”). Even if Nakamoto’s
Complaint was sufficient written notice under Section 46-72, she did not serve a
copy of the Complaint on the County until February 27, 2018, more than two years
after the incident occurred on February 5, 2016. Because Nakamoto failed to
comply with the requirements of Section 46-72, and she offers no evidence or
argument that her time-barred claims are tolled for any reason, the Court dismisses
with prejudice all of Nakamoto’s state tort claims brought in her individual capacity.
II.
The Motion Is Denied in Part With Respect to the Minors’ Claims
To the extent Nakamoto brings claims for emotional distress and loss of
consortium as next friend of minors A.N. and N.B., the County has not established
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that the statute of limitations similarly applies to those claims.3 The Complaint
alleges that at the time of the incident, on February 5, 2016, “A.N. was
approximately 2-1/2 years old, and N.B. was 6-months old.” Compl. ¶ 3. The
Complaint further alleges that the minors “suffered severe mental and emotional
distress,” and “lost the love, support and companionship they would have received,”
due to the death of Barawis, Compl. ¶¶ 23–24, and also “suffered severe mental and
emotional distress over the injuries to their mother.” Compl. ¶ 22.
Contrary to the County’s argument, the minors’ claims brought by Nakamoto
as “next friend” are subject to the infancy tolling provision. Nothing cited by the
County suggests otherwise. The County erroneously relies on Kahale v. City &
County of Honolulu, 104 Hawai‘i 341, 343, 90 P.3d 233, 235 (2004), for the
proposition that “HRS § 357-13(1) nowhere provides for the tolling of derivative
actions.” Mem. in Supp. at 9, Dkt. No. 3-1. Claims brought as “next friend” on
behalf of a minor, however, were not the “derivative actions” at issue in Kahale.
Rather, the Hawaii Supreme Court in Kahale addressed the parents’ untimely
3
Although the County argues that the minors’ claims are not tolled by operation of the statutory
infancy tolling provision, HRS § 657-13(1), see Mem. in Supp. at 9, Dkt. No. 3-1, the statute of
limitations is an affirmative defense and the County bears the burden of establishing that the
limitations period has expired. Vegas v. United Steelworkers, Local 12-591, 73 F. Supp. 3d 1260,
1270 (D. Haw. 2014). Although the County has met this burden as to Nakamoto’s individual
claims, it has not with respect to the minors. See Overall v. Estate of Klotz, 52 F.3d 398, 403 (2d
Cir. 1995)(“[s]imply by establishing her birth date[, plaintiff] has met her burden with regard to
infancy tolling,” for purposes of opposing a motion for summary judgment).
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infliction of emotional distress and loss of consortium claims for injuries suffered by
their minor child who was bitten by a dog at a City park. In Kahale, the parents,
Francis and Rachel, individually, and as “next friend” of their daughter Brandzie,
alleged that the City’s negligence caused injuries to Brandzie (Count I), and inflicted
emotional distress and loss of consortium on Francis and Rachael (Count II), and
sought punitive damages (Count III). 104 Hawai‘i at 344, 90 P.3d at 236. The
Supreme Court held:
pursuant to HRS § 657-13(1), that the counties of this state are
subject to the infancy tolling provision generally applied in
personal injury actions and that HRS § 657-13(1) tolled the
running of the statute of limitations as to Brandzie’s claims.
Lastly, we hold that, inasmuch as Francis and Rachael, as
individuals, suffered no disability for purposes of HRS § 657-13,
Francis’s and Rachael’s claims, in their individual capacities,
were not similarly tolled.
104 Hawai‘i at 343, 90 P.3d at 235. Thus, in Kahale, the parents’ claims were the
“derivative actions” that were not protected by the infancy tolling provision. These
circumstances are not present here.4
4
The Supreme Court explained in Kahale that the statutory infancy tolling provision does not
apply to a parent’s time-barred claim because the tolling provision is personal to the infant,
observing that:
other jurisdictions have refused to extend the scope of infancy tolling provisions to
derivative claims [of parents]. See Emerson v. Southern Ry. Co., 404 So.2d 576,
580 (Ala. 1981) (noting that “the derivative claim for loss of consortium of a spouse
or parent is not subject to the tolling statute of the infant”); Smith v. Long Beach
City Sch. Dist., 276 A.D.2d 785, 715 N.Y.S.2d 707, 708 (2000) (observing that “the
infancy toll is personal to the infant and does not extend to the parents’ derivative
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Because the County is subject to the infancy tolling provisions in HRS
§ 657-13(1), see Kahale, 104 Hawai‘i at 349, 90 P.3d at 241, and the minors are
alleged to have been under the age of eighteen at the time the cause of action
accrued, on the face of the Complaint, it appears that claims for A.N. and N.B.’s own
injuries are tolled as to the County.5 Because A.N. and N.B. were “‘[w]ithin the age
of eighteen years’ at the time that the present matter arose, the infancy tolling
provision of HRS § 657-13(1) allowed [them] the ‘liberty to bring such actions . . .
at any time while the disability exists.’” Kahale, 104 Hawai‘i at 349, 90 P.3d at 241
(quoting HRS § 657-13(1)). Nakamoto, as A.N. and N.B.’s “next friend, having
claims”). Thus, because [the plaintiff parents] did not timely comply with HRS
§ 46-72 with respect to their individual claims, those claims against the City are
time-barred.
Kahale, 104 Hawai‘i at 349, 90 P.3d at 241. Other jurisdictions similarly apply state infancy
tolling statutes to all claims brought as “next friend.” See, e.g., T.S. v. Doe, 2010 WL 3941868, at
*4 (E.D. Ky. Oct. 6, 2010) (“Although the action was brought by the Plaintiffs’ mother as next
friend, the minors are the plaintiffs and the real parties in interest. It is the further opinion of this
Court that the Supreme Court of Kentucky would not remove a minor’s statute of limitation
protection simply because a suit was filed by a next friend.”) (citations omitted); Clyce v. Butler,
876 F.3d 145, 148–49 (5th Cir. 2017) (“Similarly, though case law demonstrates that a next friend
can bring suit on behalf of a minor and make litigation decisions that bind him, it does not establish
that such a suit waives the protection of the tolling provision. Indeed, there is no support for the
premise that Texas’s tolling provision can ever be waived by a minor, either directly or indirectly
through a next friend. . . . Tolling the statute of limitations while someone is under a legal
disability additionally ensures that he is not time-barred from bringing claims while he is unable to
participate in, control, or even understand the progression and disposition of [his] lawsuit.
Though [the minor] arguably had ‘access to the courts’ through his parents’ next-friend lawsuit,
this does not alone satisfy the purpose of the tolling provision that prevented his claims from being
time-barred until after his legal disability was removed.”) (citations omitted).
5
The Court notes that although the statutory tolling provision is expressly inapplicable to actions
against the “chief of police, or other officers,” the County’s Motion seeks dismissal only as to
claims against the County, and not any individual, unnamed police officer. See HRS § 657-13.
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filed claims for relief on [A.N. and N.B.]’s behalf while [they were] minor[s],
ensured that HRS § 46-72 would not act as a bar to those claims against the
[County].” Kahale, 104 Hawai‘i at 349, 90 P.3d at 241.
In sum, because the County has not made a sufficient showing for purposes of
the present Motion that the statute of limitations defense applies to bar the minors’
claims as a matter of law, the Court denies the Motion without prejudice on this
issue.
CONCLUSION
For the foregoing reasons, Nakamoto’s own untimely state law claims are
barred, and Defendant County of Hawaii’s Motion to Dismiss, Dkt. No. 3, is
GRANTED in part. The Motion is DENIED to the extent it seeks dismissal of
claims brought as next friend of minors, A.N. and N.B., based upon their own
injuries.
IT IS SO ORDERED.
DATED: June 7, 2018 at Honolulu, Hawai‘i.
Nakamoto v. County of Haw., CV. NO. 18-00097 DKW-KJM; ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT COUNTY OF HAWAII’S MOTION TO
DISMISS
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