United States of America v. Sandwich Isles Communications, Inc. et al
Filing
175
ORDER (1) GRANTING MOTIONS TO DISMISS AMENDED COUNTERCLAIMS OF DEFENDANT ALBERT HEE, ECF NOS. 132 , 134 ; AND (2) DENYING HEES MOTION FOR PARTIAL SUMMARY JUDGMENT, ECF NO. 127 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 8/26/2019. "For the foregoing reasons, the court GRANTS (1) the United States' Motion to Dismiss Counterclaim of Albert S.N. Hee, ECF No. 132, and (2) the Individual-Capacity Counter-Defendants' Motion to Strike, or alternatively, Dismiss Albert Hee's Counterclaim, ECF No. 134. The court DENIES Albert Hee's Motion for Partial Summary Judgment, ECF No. 127." (jo)COURT'S 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
UNITED STATES OF AMERICA,
Civ. No. 18-00145 JMS-RT
Plaintiff,
ORDER (1) GRANTING MOTIONS
TO DISMISS AMENDED
COUNTERCLAIMS OF
DEFENDANT ALBERT HEE, ECF
NOS. 132, 134; AND (2) DENYING
HEE’S MOTION FOR PARTIAL
SUMMARY JUDGMENT, ECF NO.
127
vs.
SANDWICH ISLES
COMMUNICATIONS, INC., ET AL.,
Defendants.
_________________________________
AND RELATED COUNTERCLAIMS
AND THIRD-PARTY CLAIMS.
ORDER (1) GRANTING MOTIONS TO DISMISS AMENDED
COUNTERCLAIMS OF DEFENDANT ALBERT HEE, ECF NOS. 132, 134;
AND (2) DENYING HEE’S MOTION FOR PARTIAL SUMMARY
JUDGMENT, ECF NO. 127
I. INTRODUCTION
This Order follows from the court’s July 22, 2019 Order in this case
that (1) partially granted a motion for summary judgment in favor of Plaintiff
United States of America (“Plaintiff” or the “United States”) against Defendant
Sandwich Isles Communications, Inc. (“Sandwich Isles”), (2) dismissed
counterclaims asserted by Sandwich Isles against the United States, and
(3) dismissed counter- or third-party claims asserted by Sandwich Isles against
1
government officials in their individual capacities. See ECF No. 161, United
States v. Sandwich Isles Commc’ns, Inc., ___ F. Supp. 3d ___, 2019 WL 3293641
(D. Haw. July 22, 2019) (the “July 22, 2019 Order”). Here, the court addresses
three motions regarding pro se co-Defendant Albert Hee’s (“Hee”) First Amended
Counterclaim.
First, Hee seeks summary judgment on Count One (“Violation of the
Fifth Amendment Takings Clause”) of his counterclaim against the United States.
ECF No. 127. Second, the United States 1 moves to dismiss all counts of Hee’s
counterclaim. ECF No. 132. And third, Pai, Hone, Gillett, and Mattey
(collectively, the “Individual-Capacity Counter-Defendants”), move to strike or
dismiss all counts asserted against them in their personal capacities. ECF No. 134.
The court decides the motions without an oral hearing under Local
Rule 7.2(d). Based on the following, as well as for some of the reasons explained
in the July 22, 2019 Order, the court (1) DENIES Hee’s Motion for Partial
1
Counterclaim-Defendant United States includes the individual counterclaim-Defendants
Ajit Pai (“Pai”), Lisa Hone (“Hone”), Sharon Gillett (“Gillett”), and Carol Mattey (“Mattey”) in
their official capacities as current or former officials of the Federal Communications
Commission (“FCC”). The court refers to the United States and the individuals in their official
capacities collectively as the “United States.” See, e.g., Lewis v. Clarke, 137 S. Ct. 1285, 1291
(2017) (“In an official-capacity claim, the relief sought is only nominally against the official and
in fact is against the official’s office and thus the sovereign itself.”) (citations omitted); Solida v.
McKelvey, 820 F.3d 1090, 1095 (9th Cir. 2016) (“An action against an officer, operating in his or
her official capacity as a United States agent, operates as a claim against the United States.”)
(citation omitted).
2
Summary Judgment as to Count One of Hee’s counterclaim (2) GRANTS the
United States’ Motion to Dismiss Hee’s counterclaim; and (3) GRANTS the
Individual-Capacity Counter-Defendants’ Motion to Dismiss Hee’s claims against
them in their personal capacities.
II. DISCUSSION
The court relies on and incorporates the July 22, 2019 Order for this
action’s background and history, and thus the court does not set forth all the details
alleged in the Complaint, and in Sandwich Isles’ and Hee’s counterclaims. Hee’s
counterclaim is similar to Sandwich Isles’ counterclaim, and the motions to
dismiss them involve some similar issues. Consequently, the July 22, 2019
Order’s analysis (and dismissal) of Sandwich Isles’ counterclaim is especially
relevant in addressing the present motions. See Sandwich Isles, ___ F. Supp. 3d at
___, 2019 WL 3293641, at *11-20 (dismissing counterclaims for violations of the
Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. (“ECOA”); the
Telecommunications Act, 47 U.S.C. § 254 et seq.; and claims based on Bivens v.
Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)).
Hee’s counterclaim alleges four counts against both the United States
3
and the Individual-Capacity Counter-Defendants:2
•
Count One (“Violation of the Fifth Amendment Takings Clause”),
alleging that “[i]t is a physical taking when Plaintiff USA sells
Sandwich Isles infrastructure to another company,” and “[i]t is a
regulatory taking when Plaintiff USA reduces the amount of
[Universal Service Funds (“USF”)] Sandwich Isles is entitled to after
Sandwich Isles has incurred expenses based on the amount of [USF]
Plaintiff USA previously approved.” For this, it alleges that
“Sandwich Isles has incurred expenses based on the amount of [USF]
Plaintiff USA previously approved.”
•
Count Two (“Violation of the Fifth Amendment Due Process Clause
and the [Equal Credit Opportunity Act]”), alleging in part that “[a]t all
times, Sandwich Isles has been owned by one or more Native
Hawaiians,” and “[i]t is a violation of the ECOA to discriminate
against Sandwich Isles in any loan transactions.”
•
Count Three (“Violation of Good Faith and Fair Dealings”), alleging
in part that
[t]he loan contracts [between the United States and Sandwich
Isles] become unconscionable contracts of adhesion when
Plaintiff USA drafts the contract based on Sandwich Isles
receiving [USF], Plaintiff USA provides sufficient [USF] for
over 10 years, Plaintiff USA reduces to $0.00 the amount of
[USF] Sandwich Isles receives, then forecloses on the loan
2
Hee’s “counterclaim” against Pai, Hone, Gillet, and Mattey in their personal capacities
might more properly be termed a “third-party complaint” because these individuals are not
plaintiffs asserting claims against Hee. However, because Hee filed a single pleading entitled
“First Amended Counterclaim” that makes claims against the United States and the individuals
in both their official and individual capacities, the court will refer to the pleading as his
“counterclaim.” See ECF No. 126 ¶ 204 at PageID #1702 (Hee stating that “I make these
counterclaims against Plaintiff USA, Ajit Pai, Sharon Gillett, Carol Mattey and Lisa Hone in
their official and personal capacities”). Whether or not the counterclaim is procedurally proper
is of no consequence because, as discussed later, the court dismisses—rather than strikes—Hee’s
personal claims against the individuals for lack of subject-matter jurisdiction and for failure to
state a claim.
4
contracts and seeks to obtain any shortfall from Sandwich Isles,
its former officers, directors and stockholder of its parent.
•
Count Four (“Defamation and Slander”) alleging, in part, that
“Plaintiff USA and Counterclaim defendants have defamed and
slandered me by making false statements to the public that they know
or should have known and have the resources to determine are false.”
ECF No. 126 at PageID #1703.
Given that background, the court proceeds directly to analyzing the
three motions regarding Hee’s counterclaim, starting with the motions to dismiss.
A.
The United States’ Motion to Dismiss
The United States argues under Federal Rule of Civil Procedure
12(b)(1) that, for several reasons, this court lacks jurisdiction over all counts of
Hee’s counterclaim. It makes a facial challenge to subject-matter jurisdiction. See,
e.g., Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“A Rule
12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the
challenger asserts that the allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.”) (internal citation omitted). 3 The court
agrees that it lacks jurisdiction.
3
The United States also challenges the particular counts under Rule 12(b)(6) for failure
to state a claim. The court, however, addresses subject-matter jurisdiction first, and addresses
the 12(b)(6) arguments only as an alternative basis where a question might exist as to a lack of
subject-matter jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89
(1998) (explaining why subject matter jurisdiction, including standing to bring a suit, is normally
a “threshold question that must be resolved in [the proponent’s] favor before proceeding to the
(continued . . . )
5
Initially, as to the Counts One, Two, and Three—the Fifth
Amendment Takings claim, constitutional or ECOA violations based on race, and
contractually-based bad faith violations—it is undisputed that Hee’s counterclaim
is alleging injury to Sandwich Isles, not to Hee. Count One alleges that Sandwich
Isles’ property has been taken and that the “Sandwich Isles has incurred
expenses. . . .” Count Two alleges that “[i]t is a violation of the ECOA to
discriminate against Sandwich Isles . . .” (not against Hee, who was not a party to
any credit transactions with the United States). And Count Three alleges breaches
of duties based on a contract between the United States and Sandwich Isles (where
Hee was not a party to any of the loans at issue). ECF No. 126 at Page ID #1703
(emphases added).
Hee thus lacks standing to assert alleged violations that supposedly
injured Sandwich Isles. See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016) (reiterating that Article III standing requires a plaintiff to “have (1) suffered
an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.”)
(citation omitted). It is not enough that Hee was an officer, owner, or shareholder
(. . . continued)
merits.”); Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007)
(“[A] federal court generally may not rule on the merits of a case without first determining that it
has jurisdiction[.]”) (citation omitted).
6
of Sandwich Isles. See, e.g., EMI Ltd. v. Bennett, 738 F.2d 994, 997 (9th Cir.
1984) (“To have standing to maintain an action, a shareholder must assert more
than personal economic injury resulting from a wrong to the corporation. A
shareholder must be injured directly and independently of the corporation.”)
(quoting Shell Petroleum, N.V. v. Graves, 709 F.2d 593, 595 (9th Cir. 1983))
(internal citations omitted). See also Vt. Agency of Natural Res. v. United States ex
rel. Stevens, 529 U.S. 765, 771-72 (2000) (“[T]he Art[icle] III judicial power exists
only to redress or otherwise to protect against injury to the complaining party.”)
(quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). And a lack of Article III
standing is jurisdictional. See, e.g., White v. Lee, 227 F.3d 1214, 1242 (9th Cir.
2000) (reiterating that “standing . . . pertain[s] to a federal court’s subject-matter
jurisdiction under Article III”) (citations omitted).
Hee responds by pointing to his right to defend against claims the
United States has brought directly against him—(1) violations of the Federal
Priority Statute, 31 U.S.C. § 3713, for preferential transfers while Sandwich Isles
was “insolvent;” (2) violations of provisions of the Federal Debt Collection
Procedures Act, 28 U.S.C. § 3304, for post-insolvency fraudulent transfers; and
(3) beaches of fiduciary duty—and appears to argue that he has standing to
challenge wrongs to Sandwich Isles because his liability is derivative of Sandwich
Isles’ liability. See ECF No. 143 at PageID #2133 (“[A]ny liability I personally
7
have is [dependent] on Plaintiff USA’s right to foreclose. If Plaintiff USA cannot
foreclose, I do not have a personal liability.”); id. at PageID #2134 (“[N]aming me
as a defendant has created a direct interest in the fate of Sandwich Isles. If
Sandwich Isles prevails, the charges against me are moot.”).
But merely potentially benefitting from disposition of a codefendant’s defense or cause of action does not mean Hee suffered an “injury in
fact” as necessary for Article III standing to assert affirmative claims. 4 Hee is not
precluded from at least attempting to raise defense arguments (nor from joining in
any relief or defense that Sandwich Isles might raise); rather, he is precluded from
seeking affirmative relief for himself on causes of action for which he has no
standing. 5
In any event, the court lacks jurisdiction for additional reasons. Under
the Tucker Act, the United States Court of Federal Claims has exclusive
4
Although not argued by the United States, Hee’s argument might be based on a false
premise. Even assuming the United States violated the ECOA or somehow wrongfully reduced
USF payments to Sandwich Isles, it would not automatically absolve Hee of alleged statutory
violations for preferential or fraudulent transfers. Sandwich Isles would likely still have been
“insolvent” for purposes of the preferential transfers under 31 U.S.C. § 3717 or 28 U.S.C.
§ 3304. The court declines, however, to rule on this basis—the issue was not briefed and it is
unnecessary to address this question here.
5
Hee appears to recognize this point in his opposition which states that he “made the
counterclaims out of an abundance of caution to insure Plaintiff USA received notice regarding
my allegations,” and he admits that “[a]lthough I will not benefit from all relief resulting from
my counterclaims, my counterclaims are also defenses . . . .” ECF No. 143 at Page ID #2134.
8
jurisdiction over claims—like Counts One and Three—seeking relief for an
unconstitutional taking or for a breach of contract against a federal agency (if
seeking more than $10,000). See 28 U.S.C. § 1491(a)(1); 6 Munns v. Kerry, 782
F.3d 402, 413-14 (9th Cir. 2015) (“Absent an independent waiver of sovereign
immunity, due process and takings claims against the federal government in excess
of $10,000 . . . fall under the exclusive jurisdiction of the United States Court of
Federal Claims under the Tucker Act[.]”) (citation omitted); E. Enters. v. Apfel,
524 U.S. 498, 520 (1998) (“[A] claim for just compensation under the Takings
Clause must be brought to the Court of Federal Claims in the first instance, unless
6
Section 1491(a)(1) provides in pertinent part that:
[t]he United States Court of Federal Claims shall have jurisdiction
to render judgment upon any claim against the United States
founded either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.
The Little Tucker Act provides for concurrent district court jurisdiction over:
[a]ny ... civil action or claim against the United States, not
exceeding $ 10,000 in amount, founded either upon the
Constitution, or any Act of Congress, or any regulation of an
executive department, or upon any express or implied contract with
the United States, or for liquidated or unliquidated damages in
cases not sounding in tort.
28 U.S.C. § 1346(a)(2). “Read together, these statutes provide for jurisdiction solely in the Court
of Federal Claims for Tucker Act claims seeking more than $10,000 in damages, and concurrent
district court jurisdiction over claims seeking $10,000 or less.” McGuire v. United States, 550
F.3d 903, 910 (9th Cir. 2008).
9
Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant
statute.”). Hee’s counterclaim easily exceeds the $10,000 threshold as it seeks “no
less than $50 million,” ECF No. 126 at PageID #1704, and “the amount of [USF
payments] Plaintiff USA previously approved,” id. at PageID #1703. 7 Indeed, the
United States points out that Sandwich Isles (not Hee) has already filed a Takings
claim in a different suit now pending in the Court of Federal Claims. See
Sandwich Isles Commc’ns, Inc. v. United States, No. 19-149C (Fed. Cl. Jan. 29,
2019).
Claims for bad faith (i.e., “violation of good faith and fair dealing”) in
Count Three are contract-based claims falling within this exclusive jurisdiction.
See, e.g., Kenny Orthopedic, LLC v. United States, 88 Fed. Cl. 688, 703 (2009)
(rejecting the argument that the Claims Court lacks jurisdiction because bad faith is
a tort, reasoning that “since Plaintiff’s claim for breach of implied covenant of
good faith and fair dealing directly stems from the parties’ contractual agreement,
it is within the [Claims] court’s jurisdiction”) (citation omitted); Associated Mortg.
Bankers Inc. v. Carson, 279 F. Supp. 3d 58, 63 (D.D.C. 2017) (dismissing claim
for breach of covenant of good faith and fair dealing “because the claim and the
7
The exact amount of USF payments (probably in the millions) is not specifically alleged
in the counterclaim, but easily exceeded $10,000. See Sandwich Isles, 2019 WL 3293641, at *4
(explaining that “[i]n 2005, Sandwich Isles was receiving USF high-cost support in the amount
of $14,000 per ‘loop’ (or line) per year,” where it received USF for over ten years).
10
requested relief are with the Tucker Act’s exclusive jurisdiction”) (citations
omitted).
Further, the relief sought in Counts One, the non-ECOA allegations in
Count Two, 8 and in Count Three necessarily depends on challenging both the
FCC’s 2011 Transformation Order and 2013 denial of Sandwich Isles’ waiver
application (discussed in the July 22, 2019 Order, Sandwich Isles, 2019 WL
3293641, at *4-5). And as the July 22, 2019 Order concluded, the court lacks
subject-matter jurisdiction under the Hobbs Act to address challenges to decisions
of the FCC. See id. at *16 (citing Mais v. Gulf Coast Collection Bureau, Inc., 768
F.3d 1110, 1113 (11th Cir. 2014), and Pac. Bell Tel. Co. v. Cal. Pub. Utilities
Comm’n, 621 F.3d 836, 843 n.10 (9th Cir. 2010)); id. at *10 (“And ‘[w]here
exclusive jurisdiction [over a challenge to an FCC order] is mandated by statute, a
party cannot bypass the procedure by characterizing its position as a defense to an
8
As for Hee’s ECOA claim, it is undisputed that Hee individually was not an “applicant”
for credit, as required to bring an ECOA claim. See 15 U.S.C. § 1691(a) (“It shall be unlawful
for any creditor to discriminate against any applicant, with respect to any aspect of a credit
transaction—(1) on the basis of race . . .”). Aside from a lack of standing, this is an independent
reason to dismiss Hee’s ECOA claim. See, e.g., Alexander v. AmeriPro Funding, Inc., 848 F.3d
698, 707 (5th Cir. 2017) (affirming dismissal for failure to state a claim of ECOA claims where
plaintiffs were not “applicants” who did not actually “request[] credit”) (citation omitted).
11
enforcement action.’”) (quoting United States v. Any & All Radio Station
Transmission Equip., 207 F.3d 458, 463 (8th Cir. 2000)). 9
The court also lacks jurisdiction over Count Four’s defamation and
slander allegations. Hee seeks damages against the United States for statements
made by FCC individuals (while in the scope of their employment).10 But
sovereign immunity has not been waived for this claim. In particular, 28 U.S.C.
§ 2680(h) sets forth exceptions to the Federal Tort Claims Act’s waiver of
sovereign immunity, and § 2680(h) specifically exempts from the FTCA’s waiver
“[a]ny claim arising out of . . . libel, slander, . . . or interference with contract
rights.” Accordingly, Hee’s “defamation claim[s] against the United States [are]
barred, because suits for libel or slander are prohibited under the [FTCA].”
Gardner v. United States, 213 F.3d 735, 738 n.1 (D.C. Cir. 2000); see also, e.g.,
Roundtree v. United States, 40 F.3d 1036, 1039 n.2 (9th Cir. 1994) (concluding
that a defamation claim against the United States “is barred by the express
9
To the extent any cause of action is based on constitutional violations against the United
States under Bivens, such a claim fails as a matter of law. See, e.g., Solida, 820 F.3d at 1094
(“There is no such animal as a Bivens suit against a public official tortfeasor in his or her official
capacity.”) (quoting Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001)).
10
Under the Westfall Act, 28 U.S.C. § 2679, the United States substituted as the sole
Counter-Defendant as to the ECOA provisions of Count Two, and Counts Three and Four, after
the Attorney General’s designated representative certified that the alleged wrongful acts taken by
the individuals were done within the scope of their employment. See ECF No. 133 (“Notice of
Substitution of the United States of America for Individual-Capacity [Counter-]Defendants Ajit
Pai, Sharon Gillett, Carol Mattey, and Lisa Hone as to Part of Count Two and Counts Three and
Fourt of Albert S.N. Hee’s Amended Counterclaims.”).
12
language of the FTCA”) (citing § 2680(h). And it is axiomatic that “Section
2680(h)’s exceptions are jurisdictional in nature.” Meridian Int’l Logistics, Inc. v.
United States, 939 F.2d 740, 743 (9th Cir. 1991) (citations omitted). See also, e.g.,
Mundy v. United States, 983 F.2d 950, 952 (9th Cir. 1993) (“When a claim falls
within a statutory exception to the FTCA’s waiver of sovereign immunity, the
court is without subject matter jurisdiction to hear the case.”).
In sum, this court lacks jurisdiction over all counts of Hee’s
counterclaim against the United States. The United States’ Motion to Dismiss
Counterclaim of Albert S.N. Hee, ECF No. 132, is GRANTED. Because further
amendment would be futile, the dismissal is with prejudice.
B.
The Individual-Capacity Counter-Defendants’ Motion to Strike or
Dismiss, ECF No. 55
For the same reasons that Hee lacks standing to bring Counts One,
Two, and Three against the United States, Hee also lacks standing to bring such
claims against the Individual-Capacity Counter-Defendants (to the extent such
claims might be brought against them for acts outside the scope of their
employment). As discussed when examining the United States’ motion to dismiss,
Hee’s claims are based on injury to Sandwich Isles, and not to him. The lack of an
“injury in fact” to him means he lacks Article III standing to bring claims against
these individuals.
13
Moreover, a Fifth Amendment Takings claim cannot be brought
against the Individual-Capacity Counter-Defendants in their personal capacities.
As analyzed in Bridge Aina Leʻa, LLC v. Hawaii Land Use Commission, 125 F.
Supp. 3d 1051, 1078 (D. Haw. 2015), “[t]he very nature of a taking is that a public
entity is taking private property for a public purpose, and must provide just
compensation in return.” “This concept is inconsistent with the notion that
someone acting in an individual capacity has taken property or could be personally
liable for a taking.” Id. As Bridge Aina Leʻa summarized,
A number of federal courts, among them the Fourth and
Sixth Circuits, have also concluded that individual
capacity defendants are not liable for federal takings
claims. See Langdon v. Swain, 29 Fed. Appx. 171, 172
(4th Cir. 2002) (“[T]akings actions sound against
governmental entities rather than individual state
employees in their individual capacities.”); Vicory v.
Walton, 730 F.2d 466, 467 (6th Cir. 1984) (“Unlike a
trespass or other property tort which may be committed
by either an individual under or not under color of law or
by a governmental entity, a ‘taking without just
compensation’ in violation of the fifth amendment is an
act or wrong committed by a government body—a taking
‘for public use.’. . . . Plaintiff may not maintain a
constitutional cause of action against these defendants
who neither have nor claim the eminent domain power,
nor any power similar to it.”); see also Katsaros v.
Serafino, No. Civ. 300CV288PCD, 2001 WL 789322, at
*5 (D. Conn. Feb. 28, 2001) (“Only governmental
entities, and not individuals, can be liable for takings
violations.”).
14
Id. at 1079. The court agrees with such reasoning, which precludes Count One’s
claim for a Fifth Amendment Taking (even if it was not otherwise barred).
What’s more, any of Hee’s personal capacity constitutional claims
against the individuals—again, to the extent they are not otherwise barred and must
be brought under Bivens—fail for the same reasons that they failed when personal
claims were brought by Sandwich Isles, as explained in the July 22, 2019 Order.
See Sandwich Isles, 2019 WL 3293641, at *18-21 (applying Ziglar v. Abbasi, 137
S. Ct. 1843 (2017), and concluding that Sandwich Isles’ counterclaims for alleged
due process and equal protection violations were not cognizable under Bivens
against these individuals). That is, Hee’s constitutional claims present a “new
context” and “special factors” counsel against recognizing a Bivens remedy in the
current context. See Abbasi, 137 S. Ct. at 1859-60.
Accordingly, the Individual-Capacity Counter-Defendants’ Motion to
Strike or, alternatively, Dismiss Albert Hee’s Counterclaims against IndividualCapacity Defendants Pai, Gillett, Mattey, and Hone, ECF No. 134, is
GRANTED. 11 Because further amendment would be futile, this dismissal is with
prejudice.
11
The court need not reach the other asserted grounds for dismissal—lack of service or
personal jurisdiction—given the ample other grounds for granting the motion. See Simpkins v.
D.C. Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997) (affirming dismissal of Bivens claims on the
merits with prejudice, even though the complaint was not served on the individuals); Milton H.
(continued . . . )
15
C.
Hee’s Motion for Partial Summary Judgment
Lastly, Hee’s Motion for Partial Summary Judgment, seeking a ruling
as a matter of law at a summary judgment stage that the United States and the
Individual-Capacity Counter-Defendants are liable on Count One for a Fifth
Amendment Taking, ECF No. 127, is DENIED as MOOT. Because Hee’s
counterclaim is dismissed with prejudice, he cannot prevail on this motion.
III. CONCLUSION
For the foregoing reasons, the court GRANTS (1) the United States’
Motion to Dismiss Counterclaim of Albert S.N. Hee, ECF No. 132, and (2) the
Individual-Capacity Counter-Defendants’ Motion to Strike, or alternatively,
///
///
///
///
///
(. . . continued)
Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 990 n.6 (9th Cir. 2012) (citing
Wages v. I.R.S., 915 F.2d 1230, 1234-35 (9th Cir. 1990) (rejecting an argument that the district
court erred in dismissing Bivens claims on the merits, despite also ruling that the court lacked
personal jurisdiction for insufficient service of process)).
16
Dismiss Albert Hee’s Counterclaim, ECF No. 134. The court DENIES Albert
Hee’s Motion for Partial Summary Judgment, ECF No. 127.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 26, 2019.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
United States v. Sandwich Isles Commc’ns, Inc., Civ. No. 18-00145 JMS-RT, Order (1) Granting
Motions to Dismiss Amended Counterclaims of Defendant Albert Hee, ECF Nos. 132, 134; and
(2) Denying Hee’s Motion for Partial Summary Judgment, ECF No. 127
17
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