Noa Kanealii Io Pono I Kelii Ua Mau v. Saito et al

Filing 136

ORDER (1) GRANTING IN PART CERTAIN MOTIONS TO DISMISS AND MOTIONS FOR JOINDER, (2) DENYING PLAINTIFF'S MOTION TO STRIKE, AND (3) DISMISSING THE COMPLAINT WITH LEAVE TO AMEND re 20 , 26 , 30 , 31 , 32 , 33 , 34 , 55 , 85 , 113 , 123 - Signed by CHIEF JUDGE DERRICK K. WATSON on 6/3/2024. For the reasons set forth herein, the Moving Defendants' motions to dismiss and motions for joinder, Dkt. Nos. 20, 34, 55, 85, 113, 123, are GRANTED INPART. In a ll other respects, the pending motions to dismiss and motions for joinder, Dkt. Nos. 20, 30-34, 55, 85, 113, 123, are DENIED WITHOUT PREJUDICE. The motion to intervene, Dkt. No. 121, is similarly DENIED WITHOUT PREJUDICE. The motion to strike, Dkt. N o. 26, is DENIED. The Amended Complaint is DISMISSED WITH LEAVE TO AMEND to the extent set forth herein. Plaintiff may have until June 17, 2024 to file a second amended complaint. Should Plaintiff fail to file a seco nd amended complaint by June 17, 2024, this case will be dismissed for lack of subject matter jurisdiction without further notice. (eta)COURT'S CERTIFICATE OF SERVICE - Noa Kanealii Io P ono I Kelii Ua Mau has been served electronically to the email address listed on the Notice of Electronic Filing (NEF) on June 3, 2024. Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF). Registered Participants of CM/ECF received the document electronically to the email addresses listed on the Notice of Electronic Filing (NEF). Additionally, the order was served by email to Ryan ManaRa at [e-mail] and Carl Langschmidt at [e-mail] on June 3, 2024.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
NOA KANEALII IO PONO I KELII UA
MAU,
Plaintiff,
v.
TYLER C. SAITO, et al.,
Defendants.

Case No. 23-cv-00276-DKW-KJM
ORDER (1) GRANTING IN PART
CERTAIN MOTIONS TO DISMISS
AND MOTIONS FOR JOINDER, (2)
DENYING PLAINTIFF’S MOTION
TO STRIKE, AND (3) DISMISSING
THE COMPLAINT WITH LEAVE
TO AMEND

In October 2023, Plaintiff Noa Kanealii Io Pono I Kelii Ua Mau (Plaintiff),
proceeding without counsel, filed an Amended Complaint. Dkt. No. 14. Therein,
Plaintiff named at least 26 Defendants (collectively, Defendants), ranging from
private to governmental individuals and entities, and appearing to allege that one of
the Defendants, Hiro Shimada, “unlawfully detained” and “forcefully removed”
Plaintiff from his “private kuleana property” on Kaua‘i, Hawai‘i. Various
Defendants, including the United States of America, the Attorney General for the
State of Hawai‘i Anne Lopez, and Kalalea Plantation LLC, have moved to dismiss
the Amended Complaint on numerous grounds, including a lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a

claim under Rule 12(b)(6). Dkt. Nos. 20, 30-34, 55, 113. Other Defendants have
moved to join in certain of the foregoing motions to dismiss. Dkt. Nos. 85, 123.
Having reviewed the parties’ briefing, at this preliminary juncture of the
proceeding, the Court addresses only Defendants’ argument concerning an alleged
lack of subject matter jurisdiction. Specifically, the Court agrees with Defendants
that the alleged bases for jurisdiction in the Amended Complaint provide no such
thing, and, thus, certain of the motions to dismiss and motions for joinder are
GRANTED in that respect. However, in light of Plaintiff’s pro se status, and the
fact that this is the first notice provided of the jurisdictional deficiency in the
Amended Complaint, dismissal is WITH LEAVE TO AMEND to the extent set
forth below.
BACKGROUND
Plaintiff initiated this case on July 3, 2023. Dkt. No. 1. Roughly three
months later, on October 11, 2023, Plaintiff filed an Amended Complaint. Dkt.
No. 14.1 The Amended Complaint appears to name at least 26 Defendants.
Nonetheless, the only meaningful factual allegation therein concerns just one
Defendant, Hiro Shimada (Shimada). Specifically, Plaintiff alleges that, on

1

Because the Amended Complaint was filed prior to the service of any pleading responsive to the
Complaint, the Court construes the Amended Complaint as consistent with the amendment of
pleadings under Federal Rule of Civil Procedure 15(a)(1)(B).
2

August 25th of an unidentified year, Shimada, with a gun, “unlawfully detained
and forcefully removed” him from his “private kuleana property” on Kaua‘i,
Hawai‘i. Id. at ¶ 28. The remaining allegations conclusorily contend that
numerous individual Defendants “coordinated” with or are “employed” or
“contracted” by various other Defendants, including the United States of America,
the State of Hawai‘i, and Kalalea Plantation LLC (Kalalea). See id. Further,
according to the Amended Complaint, the purpose of the alleged “coordinat[ion]”
is to pursue a “campaign of Genocide aimed at…the ethnic national group
‘Hawaiian.’” Id.
On January 19, 2024, Defendants Kalalea and Benjamin Garfinkle
(Garfinkle) filed the first motion to dismiss, arguing, among other things, that the
Court lacks subject matter jurisdiction and the Amended Complaint fails to state a
claim for relief. Dkt. No. 20. Plaintiff responded to Kalalea and Garfinkle’s
motion to dismiss with a motion to strike. Dkt. No. 26. Therein, Plaintiff argues
that the motion to dismiss should be stricken because Kalalea and Garfinkle failed
to comply with Local Rule 7.8’s pre-filing conferral requirement. The motion to
strike, though, does not otherwise respond to the arguments for dismissal raised by
Kalalea and Garfinkle.

3

On March 12, 2024, Defendants Mathew Bracken, Todd Raybuck, Shimada,
and Tyler Saito each filed separate motions to dismiss, Dkt. Nos. 30-33, with each
arguing solely that the Complaint failed to state a claim against them under Rule
12(b)(6). As of this date, Plaintiff has not responded to any of the four motions to
dismiss identified in this paragraph.
Also on March 12, 2024, Defendants Anne Lopez (Lopez), the Attorney
General of the State of Hawai‘i, and Sylvia Luke (Luke), the Lieutenant Governor
of the State of Hawai‘i, moved to dismiss the Amended Complaint, arguing,
among other things, that the Court lacks subject matter jurisdiction, Eleventh
Amendment immunity, and the failure to state a claim. Dkt. No. 34.
Subsequently, Defendants Michael Soong (Soong) and Mark Recktenwald
(Recktenwald), the Chief Justice of the Hawai‘i Supreme Court, moved to join in
Lopez and Luke’s motion to dismiss. Dkt. No. 85. Plaintiff has not responded to
either Lopez and Luke’s motion to dismiss or the motion to join in the same.
On March 21, 2024, Defendants, the United States of America, the “US
Federal Government,” and the U.S. Department of Justice, moved to dismiss the
Amended Complaint, arguing, among other things, that they are entitled to
sovereign immunity, the Court lacks subject matter jurisdiction, and the failure to
state a claim. Dkt. No. 55. Subsequently, Defendants, Joseph Biden, the U.S.
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President, Merrick Garland, the U.S. Attorney General, the U.S. Department of
State, Anthony Blinken, the U.S. Secretary of State, the Federal Bureau of
Investigation (FBI), Christopher Wray, the Director of the FBI, and Robert King
(collectively, with the United States of America, the “US Federal Government,”
and the U.S. Department of Justice, the “United States of America”), moved to join
in the motion to dismiss identified in this paragraph. Dkt. No. 123. Plaintiff has
not responded to either the United States of America’s motion to dismiss or the
motion to join in the same.
On April 3, 2024, Defendant, the State of Hawai‘i, moved to dismiss the
Amended Complaint, arguing, among other things, that the Court lacks subject
matter jurisdiction, Eleventh Amendment immunity, and the failure to state a
claim. Dkt. No. 113. Plaintiff has also not responded to the State of Hawai‘i’s
motion to dismiss.
Finally, on April 9, 2024, Ryan ManaRa (ManaRa), a non-party to this
action, moved to intervene as a plaintiff, asserting that he has an “interest relating
to the property and transaction which is the subject of this action….” Dkt. No.
121. Defendants, the United States of America, Kalalea, Garfinkle, Lopez, Luke,

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Soong, and Recktenwald, have filed oppositions to the motion to intervene. Dkt.
Nos. 130-133. 2 ManaRa did not reply to any of the foregoing oppositions.
With the time for additional briefing long since over, this Order now
follows.
STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move
for dismissal due to a lack of subject matter jurisdiction. When a defendant does
so, “the plaintiff has the burden of proving jurisdiction in order to survive the
motion.” Kingman Reef Atoll Investments, LLC v. United States, 541 F.3d 1189,
1197 (9th Cir. 2008) (quotation omitted).3
A defendant may also move for dismissal under Federal Rule of Civil
Procedure 12(b)(6). To survive such a motion, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

2

Meanwhile, Defendants Saito, Bracken, Shimada, and Raybuck have filed statements of no
position with respect to the motion to intervene. Dkt. Nos. 126-129.
3
A Rule 12(b)(1) motion can consist of a facial or factual attack on jurisdiction. Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Here, to the extent any Defendant
moves for dismissal under Rule 12(b)(1), they appear to raise a facial attack, given that the
challenge is to the sufficiency of the allegations in the Complaint. See id. (“In a facial attack,
the challenger asserts that the allegations contained in a complaint are insufficient on their face
to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth
of the allegations that, by themselves, would otherwise invoke federal jurisdiction.”).
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on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Because Plaintiff is proceeding without counsel, “[u]nless it is absolutely
clear that no amendment can cure the defect . . . a pro se litigant is entitled to
notice of the complaint’s deficiencies and an opportunity to amend prior to
dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir.
1995). A court, however, may deny leave to amend where, among other things,
amendment would be futile. E.g., Gardner v. Martino, 563 F.3d 981, 990 (9th
Cir. 2009); Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir.
2008).
DISCUSSION
As detailed above, the Defendants, collectively, move for dismissal on
various distinct grounds. Because one of those grounds relates to the Court’s
subject matter jurisdiction to hear this case, the Court addresses the same first.
Defendants, the United States of America, the State of Hawai‘i, Lopez,
Luke, Kalalea, and Garfinkle (collectively, Moving Defendants), argue that the
Court lacks subject matter jurisdiction because there is neither federal question nor
diversity jurisdiction. Based, in part, on Plaintiff’s failure to respond to this

7

argument, and the purported federal questions cited in the Amended Complaint, the
Court agrees.
Initially, as mentioned earlier, Plaintiff has not responded to any of the
substantive grounds for dismissal raised in any of the pending motions to dismiss. 4
Nonetheless, because Plaintiff is proceeding without counsel, the Court liberally
construes the Amended Complaint. Eldridge v. Block, 832 F.2d 1132, 1137 (9th
Cir. 1987). In doing so, though, the Court cannot act as counsel for a pro se
litigant, such as by supplying the essential elements of a claim. Pliler v. Ford,
542 U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266,
268 (9th Cir. 1982).
Here, the Amended Complaint relies upon purported federal questions
arising under the following six potential sources: (1) the Supremacy Clause of the
U.S. Constitution; (2) the 1849-1850 Hawaiian Treaty with the United States; (3)
28 U.S.C. Section 1350; (4) 18 U.S.C. Section 1091; (5) the UN Convention on the
Prevention and Punishment of the Crime of Genocide; and (6) the UN Convention
on the Law of the Seas. Dkt. No. 14 at ¶ 1. None of these, however, is a source

4

Instead, Plaintiff moved to strike the first motion to dismiss on the procedural ground that it
failed to comply with Local Rule 7.8. See Dkt. No. 26. The motion to strike is DENIED
because, as Plaintiff (at least tacitly) acknowledges therein, a party need not comply with the
conferral requirement of Local Rule 7.8 when, as here, the opposing party is proceeding pro se
(i.e., without counsel). See id. at 3 (citing Local Rule 7.8).
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of subject matter jurisdiction in this case. See Golden State Transit Corp. v. City
of Los Angeles, 493 U.S. 103, 107 (1989) (stating that the Supremacy Clause “is
not a source of any federal rights; it secures federal rights by according them
priority whenever they come in conflict with state law.”) (quotations omitted); 5
Medellin v. Texas, 552 U.S. 491, 506 n.3 (2008) (explaining that “the background
presumption is that international agreements…generally do not create rights or
provide for a private cause of action in domestic courts.”) (quotation omitted);
Treaty With The Hawaiian Islands, Dec. 20, 1849, reprinted in 9 Stat. 977
(providing for no private right of action); 18 U.S.C. § 1092 (providing that Section
1091, which is also known as the Proxmire Act and/or the UN Convention on the
Prevention and Punishment of Genocide, shall not be construed “as creating any
substantive or procedural right enforceable by law by any party in any
proceeding.”); Tobar v. United States, 639 F.3d 1191, 1196 (9th Cir. 2011) (stating
that the UN Convention on the Law of the Seas has been signed, but not ratified);
28 U.S.C. § 1350 (providing that district courts shall have jurisdiction “of any civil
action by an alien for a tort only, committed in violation of the law of nations or a
treaty of the United States.”).6

5

Here, Plaintiff alleges no conflict between federal rights and state law.
Here, while Plaintiff contends that he is an “alien to the United States”, Dkt. No. 1 at 3, he
acknowledges that he is not an alien to Hawai‘i, see id. Therefore, Plaintiff is not an alien for
6

9

As alleged, therefore, the Court lacks subject matter jurisdiction over the
claims brought in the Amended Complaint. 7 To that extent only, the Moving
Defendants’ motions to dismiss and motions for joinder are GRANTED. 8 As
mentioned, however, Plaintiff is proceeding without counsel and, as of this point,
without notice from the Court of the jurisdictional defects associated with his
claims. Further, while Plaintiff’s pro se status alone may not be sufficient to
warrant amendment, here, at least arguably, it is not absolutely clear that
amendment could not cure this deficiency. For example, the Amended Complaint
appears to allege that Plaintiff was “forcefully removed” from property on Kaua‘i.
Dkt. No. 14 at

¶ 28. Liberally construed, given that the foregoing may involve

a deprivation of property, Plaintiff may be able to amend to assert a takings claim
under the U.S. Constitution against one or more of the Defendants. In addition, in
the Amended Complaint, it alleges that Shimada threatened Plaintiff with violence,
“unlawfully detained” him, and “forcefully removed” him from his property. Id.

purposes of Section 1350. See P.L. 86-3 (Mar. 18, 1959), reprinted in 73 Stat. 4 (providing for
the admission of Hawai‘i into the United States).
7
While Plaintiff does not rely upon diversity jurisdiction, the Court notes that, in light of the
allegations of the Amended Complaint, he could not because Plaintiff and at least one of the
many Defendants are residents of Hawai‘i. See Dkt. No. 1 at ¶¶ 1-2; Hunter v. Philip Morris
USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (explaining that “federal district courts have
jurisdiction over suits for more than $75,000 where the citizenship of each plaintiff is different
from that of each defendant.”).
8
Specifically, the following motions to dismiss and motions for joinder are GRANTED on the
ground that the Court lacks subject matter jurisdiction: Dkt. Nos. 20, 34, 55, 85, 113, 123.
10

As Shimada observes in his motion to dismiss, Dkt. No. 32-1 at 6-9, while these
allegations alone are still far from stating an actionable claim, Plaintiff may be able
to amend the same to assert a claim under 42 U.S.C. Section 1983. Therefore, the
Court cannot say that Plaintiff is not entitled to leave to amend his claims in an
attempt to allege subject matter jurisdiction over at least one of the Defendants.
At this preliminary juncture, no more need be determined. As a result, in
all other respects, the pending motions to dismiss and motions for joinder are
DENIED WITHOUT PREJUDICE to renewal should Plaintiff file a second
amended complaint. In other words, at this time, the Court does not address
Defendants’ other arguments, such as immunity, for dismissal. Similarly, due to
the dismissal of the Amended Complaint, the motion to intervene is also DENIED
WITHOUT PREJUDICE to renewal should Plaintiff file a second amended
complaint.
So it is clear, should Plaintiff choose to file a second amended complaint, he
must write short, plain statements alleging: (1) the legal right he believes was
violated; (2) the name of the defendant(s) who violated that right; (3) exactly what
each defendant did or failed to do and when; (4) how the action or inaction of that
defendant is connected to the violation of his right; and (5) what specific injury he
suffered because of a defendant’s conduct. In doing so, Plaintiff must invoke a
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legal right that provides for a cause of action in this Court against the Defendant(s)
to whom the claim is directed.
CONCLUSION
For the reasons set forth herein, the Moving Defendants’ motions to dismiss
and motions for joinder, Dkt. Nos. 20, 34, 55, 85, 113, 123, are GRANTED IN
PART. In all other respects, the pending motions to dismiss and motions for
joinder, Dkt. Nos. 20, 30-34, 55, 85, 113, 123, are DENIED WITHOUT
PREJUDICE. The motion to intervene, Dkt. No. 121, is similarly DENIED
WITHOUT PREJUDICE. The motion to strike, Dkt. No. 26, is DENIED.
The Amended Complaint is DISMISSED WITH LEAVE TO AMEND to
the extent set forth herein. Plaintiff may have until June 17, 2024 to file a second
amended complaint. Should Plaintiff fail to file a second amended complaint
by June 17, 2024, this case will be dismissed for lack of subject matter
jurisdiction without further notice.
IT IS SO ORDERED.
Dated: June 3, 2024 at Honolulu, Hawai‘i.
___________________________
Derrick K. Watson
Chief United States District Judge
Noa Kanealii Io Pono I Kelii Ua Mau vs. Tyler Saito, et al; Civil No. 23-00276 DKW-KJM; ORDER (1)
GRANTING IN PART CERTAIN MOTIONS TO DISMISS AND MOTIONS FOR JOINDER, (2)
DENYING PLAINTIFF’S MOTION TO STRIKE, AND (3) DISMISSING THE COMPLAINT WITH
LEAVE TO AMEND

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