Davis v. Kula Kai View Estates, Community Association et al

Filing 96

ORDER (1) GRANTING IN PART DEFENDANTS' MOTION TO DISMISS, AND (2) DISMISSING ACTION WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND FOR LACK OF SUBJECT MATTER JURISDICTION re 87 - Signed by CHIEF JUDGE DERRICK K. WATSON on 3/5/2025. For the reasons set forth herein, neither federal question nor diversity jurisdiction exists in this case. This means that the Court lacks subject matter jurisdiction. Arbaugh, 546 U.S. at 513. Further, as discussed, ther e is no basis for the Court to grant leave to amend these deficiencies in light of Davis' past opportunity to address the same and/or his admissions in his opposition. In other words, amendment would be futile. The Moving Defendants' mo tion to dismiss, Dkt. No. 87, is GRANTED IN PART, and the First Amended Complaint, Dkt. No. 45, is DISMISSED WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND. After entry of this Order, the Clerk is directed to CLOSE this case. (et a)COURT'S CERTIFICATE OF SERVICE - Kent Davis has been served electronically to the email address listed on the Notice of Electronic Filing (NEF) on March 5, 2025. Pro Se (Non-Prisoner) Litigants that have consent ed 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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
KENT DAVIS,
Plaintiff,
v.
KULA KAI VIEW ESTATES
COMMUNITY ASSOCIATION, et al.,
Defendants.

Case No. 23-cv-00346-DKW-WRP
ORDER (1) GRANTING IN PART
DEFENDANTS’ MOTION TO
DISMISS, AND (2) DISMISSING
ACTION WITHOUT PREJUDICE
AND WITHOUT LEAVE TO
AMEND FOR LACK OF SUBJECT
MATTER JURISDICTION 1

On June 5, 2024, Plaintiff Kent Davis (“Plaintiff” or “Davis”), proceeding
without counsel, filed a First Amended Complaint (“FAC”)—the operative pleading
in this case—against numerous Defendants, including John Wilson, Mary Wilson,
Theodore Stanton, Karen Lane, and Larry Hayes (collectively, the “Moving
Defendants”), as well as against Kula Kai View Estates Community Association
(“Kula Kai”), a community and road association on the Big Island of Hawai‘i.
Davis asserts at least 19 claims under federal and state law, all of which appear to
arise out of disputes between Davis and members of Kula Kai, including the Moving
Defendants.

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Pursuant to Local Rule 7.1(c), the Court finds these matters suitable for disposition without a
hearing. As a result, the March 14, 2025 hearing (Dkt. No. 88) is hereby VACATED.

Pending before the Court is the Moving Defendants’ motion to dismiss six of
Davis’ claims, including the only two potentially brought under federal law. Dkt.
No. 87. Davis opposes the motion. Dkt. No. 93. Upon review of the parties’
briefing, the FAC, and relevant case law, for the reasons set forth below, the Court
agrees with the Moving Defendants’ argument that Davis’ claims under federal law
must be dismissed because they are premised upon statutory provisions declared
unconstitutional and/or they fail to allege “state action” as required. Further, in
light of the assertions in Davis’ opposition, the Court finds that leave to amend these
claims would be futile and, thus, not warranted. Further still, Davis’ opposition
reveals that, although he premised this lawsuit, in part, upon diversity jurisdiction,
Davis concedes that he and certain defendants are not citizens of different States
and, thus, are not diverse for federal jurisdictional purposes.
This means several things, all explained further below. First, the Court lacks
federal question jurisdiction because all of Davis’ federal claims are dismissed
without leave to amend. Second, the Court lacks diversity jurisdiction over Davis’
state law claims because the parties are not sufficiently nor completely diverse.
The sum of these parts is that the Court lacks subject matter jurisdiction over this
action. Third, in light of the representations in Davis’ opposition, leave to amend
would be futile. Therefore, this case must be dismissed, and it is unnecessary for
the Court to address the Moving Defendants’ merits-based arguments with respect to
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Davis’ state law claims. Because dismissal is for lack of subject matter jurisdiction,
however, dismissal is without prejudice. Accordingly, the motion to dismiss, Dkt.
No. 87, is GRANTED IN PART.
PROCEDURAL BACKGROUND
Davis initiated this action on July 26, 2023 with the filing of a Complaint
against Defendants Kula Kai, the State of Hawai‘i and its “employees”, the Hawai‘i
County Police Department (“HCPD”), Hawai‘i County Prosecutor Kelden Waltgen,
and Randy Larson (collectively, the “Original Defendants”). Dkt. No. 1. Davis
did so in the U.S. District Court for the Central District of California (“California
Court”), alleging that he was a resident of California. In August 2023, the action
was transferred from California to this District, with the California Court finding
that the Original Defendants were residents of Hawai‘i and a substantial part of the
events giving rise to Davis’ claims occurred in Hawai‘i. Dkt. No. 7.
On February 2, 2024, Kula Kai, the only served member of the Original
Defendants, filed a motion for summary judgment on numerous grounds. Dkt.
No. 23. Essentially, while the Court did not dismiss all claims as requested, the
Court agreed that various claims against Kula Kai were deficient and needed to be
re-alleged, and granted Davis leave to do so. Dkt. No. 40.
On June 5, 2024, Davis filed the instant First Amended Complaint. Dkt.
No. 45. In addition to amending many of his claims, Davis also substantially
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amended the parties named as defendants. Specifically, of the Original Defendants,
only Kula Kai remains. Id.; see also Dkt. No. 47 (Davis dismissing without
prejudice the State of Hawai‘i and its employees, HCPD, Waltgen, and Larson). In
place of most of the Original Defendants, Davis named numerous individuals,
allegedly members of Kula Kai, including the Moving Defendants. Among other
things, Davis alleged, generally, that all of the Defendants resided or did business in
Hawai‘i. Dkt. No. 45 at 2. In the FAC, Davis brought 19 causes of action.
Liberally construing those claims, all but two arise under State law for such things as
alleged assault, false imprisonment, libel, infliction of emotional distress, and
trespass (collectively, “State Claims”). Id at 33-35. In the two outliers, Davis
alleges that unidentified defendants violated his rights under the Fourteenth
Amendment, federal statutory law, and against sexual-orientation discrimination
(collectively, “Federal Claims”). Id. at 35-36.
On February 5, 2025, the Moving Defendants filed the instant motion to
dismiss, seeking dismissal of the only Federal Claims and certain State Claims.
Dkt. No. 87. Davis has opposed the motion to dismiss. Dkt. No. 93. In his
opposition, Davis asserts, among other things, that the FAC is “premised on”
diversity jurisdiction, his citizenship is California, and “[t]hree of the defendants

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also live in the State of California.” Id. at 8. 2 The Moving Defendants have filed a
reply. Dkt. No. 94. With briefing complete, this Order now follows.
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 12(h)(3) requires dismissal of an action if “at
any time” the court determines that it lacks subject matter jurisdiction.
Fed.R.Civ.P. 12(h)(3); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)
(explaining that subject matter jurisdiction “involves a court’s power to hear a case”
and a court has an independent obligation to determine whether such jurisdiction
exists) (quotation and citation omitted). The burden of establishing subject matter
jurisdiction falls on the plaintiff, here, Davis. Ashoff v. City of Ukiah, 130 F.3d 409,
410 (9th Cir. 1997).
Generally speaking, a federal district court possesses subject matter
jurisdiction over federal questions–those involving a claim under the Constitution or
laws of the United States–and over diversity actions–those between parties of
diverse citizenship and exceeding $75,000 in controversy. Arbaugh, 546 U.S. at
513. Diverse citizenship means complete diversity. In other words, only “where
the citizenship of each plaintiff is different from that of each defendant.” Hunter v.
Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). When a plaintiff files an
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The Court notes that, on March 5, 2025, Davis filed another opposition to the motion to dismiss.
Dkt. No. 95. This latter opposition, however, is dated February 19, 2025—the same date as the
original—and appears a duplicate of the original in all relevant respects. Compare Dkt. No. 93,
with Dkt. No. 95. Therefore, the Court cites only the original opposition, Dkt. No. 93, herein.
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amended complaint, “courts look to the amended complaint to determine
jurisdiction.” Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473 (2007),
overruled on other grounds as stated in Royal Canin U.S.A., Inc. v. Wullschleger,
604 U.S. 22 (2025).
Because Davis 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
The Moving Defendants seek dismissal of the only Federal Claims and certain
State Claims. Dkt. No. 87. Because they arguably provide subject matter
jurisdiction for this action, the Court begins with the Federal Claims. 3
I.

Federal Claims

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The Court acknowledges that, in both the FAC and in his opposition to the motion to dismiss,
Davis appears to contend that jurisdiction exists in this case solely due to diversity jurisdiction.
Dkt. No. 45 at 1; Dkt. No. 93 at 8. The FAC, however, clearly attempts to bring claims under, at
least, the Fourteenth Amendment and a provision of the U.S. Code. Dkt. No. 45 at 35.
Therefore, in light of Davis’ pro se status, the Court reviews the Federal Claims to determine
whether they provide subject matter jurisdiction here independent of diversity.
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In the FAC, Davis brings two claims, at least one of which he attempts to
bring under federal law. See Dkt. No. 45 at 35-36. In the first such claim, Davis
relies upon 34 U.S.C. Section 12361 (“Section 12361”) and the Fourteenth
Amendment. In the second, which alleges sexual-orientation discrimination, Davis
does not rely upon any specific provision of federal law. Nonetheless, given Davis’
pro se status, to the extent he intends to bring the claim under federal law, the Court
construes the same as one attempting to allege a constitutional violation under
42 U.S.C. Section 1983 (“Section 1983”) or, like the Moving Defendants, as one
also brought under Section 12361. See Dkt. No. 87-1 at 8; Azul-Pacifico, Inc. v.
City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (“Plaintiff has no cause of
action directly under the United States Constitution. We have previously held that a
litigant complaining of a violation of a constitutional right must utilize 42 U.S.C.
§ 1983.”) (citations omitted). None of the above-mentioned law, however,
provides subject matter jurisdiction over the Federal Claims.
First, as the Moving Defendants explain in their motion to dismiss,
Section 12361 cannot be a basis for any federal claim because the U.S. Supreme
Court has found it to be unconstitutional. Dkt. No. 87-1 at 7 (citing United States v.
Morrison, 529 U.S. 598, 627 (2000) (concluding that Congress lacked authority to
enact the civil remedy provision of 42 U.S.C. Section 13981, which was
subsequently transferred to Section 12361); see 42 U.S.C. § 13981; see also Stoutt v.
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Travis Credit Union, 512 F. Supp. 3d 1048, 1052 (E.D. Cal. 2021) (“federal courts
lack jurisdiction over claims based upon unconstitutional statutes[.]”) (citing Ex
Parte Siebold, 100 U.S. 371, 377 (1879) (“if the laws are unconstitutional and void,
the Circuit Court acquired no jurisdiction of the causes.”)).
Second, for purposes of Section 1983 and/or the Fourteenth Amendment, a
“threshold requirement of any constitutional claim is the presence of state action.”
See Roberts v. AT&T Mobility LLC, 877 F.3d 833, 837 (9th Cir. 2017); Shah v.
Patel, 232 F. App’x 743 (9th Cir. May 23, 2007) (explaining that, to bring an action
under Section 1983, “a plaintiff must sufficiently plead that the defendants have
engaged in state action[,]” and affirming the dismissal of a case for lack of subject
matter jurisdiction due to a failure to plead such action); Kinsley v. Doe, 2024 WL
5137647, at *1 (W.D. Wash. Dec. 17, 2024) (dismissing complaint brought under
Section 1983 for lack of subject matter jurisdiction because “all named defendants
are private actors….”). Here, Davis has not pled state action or named any state
actor as a defendant. Rather, all defendants named in the FAC, including the
Moving Defendants, are clearly private actors, as either a community association
(Kula Kai) or the individual members of the same (such as the Moving Defendants).
Further, when faced with this very argument from the Moving Defendants, in his
opposition, Davis’ only counter was to assert that “the Defendants are closely tied to
a State and Federally licensed Non Profit Corporation.” Dkt. No. 93 at 8. While
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Davis does not identify the “Non Profit Corporation”, irrespective of whether the
same is Kula Kai or some other entity, merely being “licensed” by a state
government does not constitute state action or make the entity a state actor. See
Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 807, 814, 818-819 (2019)
(affirming the dismissal of a Section 1983 claim against a “private” operator of a
public-access cable system, explaining that “the fact that the government licenses,
contracts with, or grants a monopoly to a private entity does not convert the private
entity into a state actor….”); Heineke v. Santa Clara Univ., 965 F.3d 1009, 1013-14
(9th Cir. 2020) (explaining that “[r]eceipt of government funds” and “compliance
with generally applicable laws” or state regulations does not constitute state action).
Without state action, Davis cannot bring a Section 1983 and/or the Fourteenth
Amendment claim, leaving him no viable Federal Claim with which to proceed.
This then leaves the issue of whether Davis should be entitled leave to amend
his Federal Claims. The Court finds that leave to amend is not warranted because it
would be futile. First, amendment would not resuscitate any claim under an
unconstitutional statutory provision, such as Section 12361. Second, when faced
with the Moving Defendants’ argument that the FAC failed to allege state action,
Davis’ only response was to rely upon the purported licensing of a non-profit
corporation. As discussed, amendment of the FAC to include such an allegation
would not fix the private-action problem with this case. Further, because Davis has
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failed to identify any other basis for state action, despite the problem being identified
in the motion to dismiss, the Court finds that leave to amend would simply delay the
inevitable. Therefore, for the reasons set forth herein, the Federal Claims are
dismissed without leave to amend. Because dismissal is for lack of subject matter
jurisdiction, dismissal is without prejudice. Tijerino v. Stetson Desert Project,
LLC, 934 F.3d 968, 971 n.2 (9th Cir. 2019) (“in general, dismissal for lack of subject
matter jurisdiction should be without prejudice.”).
II.

State Claims and Diversity
With respect to Davis’ State Claims, the Court notes that, in the motion to

dismiss, the Moving Defendants’ arguments challenged the merits of these claims.
Dkt. No. 87-1 at 8-13. However, as mentioned, the Court has an ongoing obligation
to determine whether it has subject matter jurisdiction. That obligation exists
throughout the pendency of a case. In light of the dismissal of the Federal Claims,
the only remaining basis for the Court to exercise jurisdiction over the State Claims
is diversity jurisdiction. 4 Further, since the filing of the motion to dismiss, the
circumstances of the Court’s subject matter jurisdiction have changed in light of
representations made in Davis’ opposition. Specifically, Davis clearly states that,
in addition to himself being a resident of California, “[t]hree of the defendants also
4

The Court notes that, with the dismissal of the Federal Claims for lack of subject matter
jurisdiction, there is no “discretion” to retain “supplemental jurisdiction” of the State Claims under
28 U.S.C. Section 1367. Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th
Cir. 2001).
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live in the State of California.” Dkt. No. 93 at 8. As the Moving Defendants
observe in their reply, this representation implicates whether diversity jurisdiction
exists in this case. Dkt. No. 94 at 1-2. The reason is straightforward under
long-established law: Davis, as the plaintiff, cannot be a citizen of the same state as
any defendant in order for diversity to exist. See Hunter, 582 F.3d at 1043. Here,
Davis acknowledges that he and at least three defendants are of the same state. 5
Therefore, diversity jurisdiction does not exist.
CONCLUSION
For the reasons set forth herein, neither federal question nor diversity
jurisdiction exists in this case. This means that the Court lacks subject matter
jurisdiction. Arbaugh, 546 U.S. at 513. Further, as discussed, there is no basis for
the Court to grant leave to amend these deficiencies in light of Davis’ past
opportunity to address the same and/or his admissions in his opposition. In other
words, amendment would be futile. The Moving Defendants’ motion to dismiss,
Dkt. No. 87, is GRANTED IN PART, and the First Amended Complaint, Dkt. No.
45, is DISMISSED WITHOUT PREJUDICE and WITHOUT LEAVE TO
AMEND.
After entry of this Order, the Clerk is directed to CLOSE this case.
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The Court, therefore, finds this more specific representation overcomes the generalized statement
in the FAC that all defendants either did business in or resided in Hawai‘i, particularly given that
the FAC fails to identify any specific defendant or location in Hawai‘i where any of the defendants
allegedly resided. See Dkt. No. 45 at 2; Rockwell, 549 U.S. at 473 (stating that “demonstration
that the original allegations were false will defeat [subject matter] jurisdiction.”).
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IT IS SO ORDERED.
Dated: March 5, 2025 at Honolulu, Hawai‘i.

___________________________
Derrick K. Watson
Chief United States District Judge

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