Hutchinson et al v. Kamauu et al

Filing 100

MEMORANDUM DECISION AND ORDER - Defendants' 97 Objection to Judge Oberg's 96 Report and Recommendation is OVERRULED. Judge Oberg's 96 Report is ADOPTED and Defendant's 91 Application is GRANTED. Signed by Judge Robert J. Shelby on 8/29/2024. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORADUM DECISION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION FOR
CHARGING ORDER

PAUL HUTCHINSON, an individual; and
DESINTARE LLC, a Utah limited liability
company,
Plaintiffs,

Case No. 2:20-cv-00796-RJS-DAO

v.

Chief District Judge Robert J. Shelby

J. KAHEALANI KAMAUU, an individual;
ROI COMPANIES LLC, a Hawaii limited
liability company; HALE MALUHIA
ESTATE LLC, a Hawaii limited liability
company,

Magistrate Judge Daphne A. Oberg

Defendants.
Before the court is Defendants’ pro se Objection to Report and Recommendation to Grant
Plaintiff’s Application for Charging Order 1 to Magistrate Daphne A. Oberg’s Report and
Recommendation. 2 For the reasons stated below, KAMAUU’s Objections are OVERRULED,
the Report and Recommendation is ADOPTED, and Plaintiff’s Application for Charging Order
is GRANTED. 3
BACKGROUND AND PROCEDURAL HISTORY
This case arises out of Plaintiffs’ Complaint against Defendants for, among other things,
breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair
dealing, fraud, and unjust enrichment. 4 Defendants failed to file an answer or any responsive

1

Dkt. 97 (Objection).

2

Dkt. 96 (Report).

3

Dkt. 91 (Application).

4

Dkt. 2.

1

pleading and the Clerk of Court entered a Default Certificate on January 15, 2021. 5 The case
was subsequently reassigned to Judge Oberg who raised a jurisdictional question as to the limited
liability company Defendants. 6 After resolving the jurisdictional issue, Judge Oberg entered a
default judgment as to the limited liability company Defendants on April 26, 2021. 7 The
business entity Defendants were never represented by counsel and never responded to any
pleadings or orders of the court before default judgment was entered for all Defendants.
Defendants failed to satisfy the Judgment and Plaintiffs filed the Application on March
13, 2024, requesting that the court enter a charging order transferring Defendants’ interests in the
business entities to Plaintiffs towards satisfaction of Defendants’ Judgment. This court ordered
supplemental briefing, requesting additional information from Plaintiffs to establish Mr.
Kamauu’s interests in the entities. 8 The order for supplemental briefing also indicated
Defendants could respond or oppose Plaintiffs’ Application and reminded Defendants that, under
Rule 83-1.3(c) of the Local Rules of Civil Practice, business entities may not appear pro se and
an attorney of record must file any response for the Defendant entities. 9
Plaintiffs promptly provided additional documentation to the court, including Hawaii
business registration documents, business entity reports with owner information, annual reports
signed by Mr. Kamauu, and real property ownership. 10 All documents demonstrated Mr.
Kamauu had interest in all named Defendant entities. 11 Defendants did not respond or contest

5

Dkt. 14.

6

Dkt entry 15.

7

Dkt. 28.

8

Dkt. 92.

9

Id., at 2–3.

10

Dkt. 93.

11

See Dkt. 96, Report 1–2.

2

Plaintiff’s Application or supporting documents, nor did Defendants respond to the court’s order
for supplemental briefing.
Judge Oberg subsequently issued a Report and Recommendations on June 13, 2024,
recommending Plaintiff’s Application be granted. 12 Judge Oberg ordered any objections to the
Report be filed within fourteen days. 13
Mr. Kamauu filed a timely Objection to Report and Recommendations on June 21,
2024. 14 Mr. Kamauu’s Objection states, “Defendants - J. Kahealani Kamauu, ROI Companies
and Hale Maluhia Estate — (hereinafter referred to as “Defendants”), proceeding pro se against
the above-captioned Plaintiffs … hereby file this ‘Objection’” [sic]. 15 The Objection primarily
lodges allegations that “Plaintiff and his Atty’s” are engaging in fraud, deceit, and retaliation. 16
Defendants object that every entity Plaintiff seeks a charging order against “does not have
transferable rights.” 17 Defendants offer no other explanation or supporting documentation. 18 No
attorney of record ever entered an appearance or filed any objections to the Report on behalf of
the entity Defendants.
LEGAL STANDARDS
The standard of review for a magistrate judge’s report and recommendation depends on
the sufficiency of the objection. To qualify as a proper objection that triggers de novo review,
the objection must be both timely—that is, made within fourteen days—and “sufficiently

12

Dkt. 96.

13

Id.

14

Dkt. 97.

15

Id., at 1 (italics in the original).

16

Id.

17

Id.

18

Id.

3

specific to focus the district court's attention on the factual and legal issues that are truly in
dispute.” 19
Under the Tenth Circuit’s “firm waiver rule,” if an objection is not timely and specific,
then the objector has waived “review of both factual and legal questions.” 20 A court may decline
to apply the firm waiver rule “when the interests of justice so dictate”—for example, if “the
magistrate’s order does not apprise the pro se litigant of the consequences of a failure to object to
findings and recommendations.” 21 “[T]his court generally reviews unobjected-to portions of a
report and recommendation for clear error.” 22
ANALYSIS
The court reviews Judge Oberg’s Report in two steps. First, the court will review the
conclusions to which Defendants’ object. Second, the court will review the remainder for clear
error.
I.

Defendants’ Objections

Defendants, collectively and pro se, object to enter a charging order against ROI
Companies, LLC (Wyoming), ROI Companies, LLC (Hawaii), Hewlen Kamauu Non-Profit,
Inc., Kamauoha Foundation, ROI Investments, LLC, 53018E Makao LLC, and Real Property

See United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[O]bjections to the
magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.”); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”).

19

20

One Parcel of Real Prop., 73 F.3d at 1059 (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).

21

Moore, 950 F.2d at 659.

Zloza v. Indus. Co., No. 4:23-cv-17-RJS-PK, 2023 WL 2760784, at *1 (D. Utah Apr. 3, 2023) (citing Johnson v.
Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) and Fed. R. Civ. P. 72(b) advisory committee’s note to 1983
amendment).
22

4

Located at 53-018 Makao Rd., Hauula 96717 all on the same grounds: “Defendant does not have
transferable rights.” 23
Mr. Kamauu is a pro se litigant. Pro se litigants are held to less stringent standards than
parties formally represented by lawyers, 24 and their pleadings “are to be construed liberally.” 25
Nevertheless, a litigant’s pro se status “does not excuse the obligation . . . to comply with the
fundamental requirements of the Federal Rules of Civil . . . Procedure.” 26
As the court specifically reminded Defendants, Rule 83-1.3(c) of the Local Rules of Civil
Practice require any business entity to be represented by an attorney licensed to practice in
Utah. 27 Mr. Kamauu is not a licensed attorney admitted to practice law before the court and may
not file pleadings on behalf of the entity Defendants. 28 In effect, the Defendant entities have
failed to file any objections the court may consider. The court concludes the Tenth Circuit’s
“firm waiver rule” applies and Defendants have waived “review of both factual and legal
questions.” 29
The court reads Mr. Kamauu’s Objection to assert objections on behalf of the entity
Defendants. However, to the extent Mr. Kamauu objects on his own behalf, the court concludes
Mr. Kamauu’s objections are not sufficiently specific to overcome the firm waiver rule.

23

Id., at 2–3.

24

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

25

Id.

26
Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th
Cir. 1994) (“This court has repeatedly insisted that pro se parties follow the same rules of procedure that govern
other litigants.”) (internal quotation and citation omitted).

See DUCivR 83-1.3(c)(2) (“A corporation, association, partnership, or other artificial entity must be represented
by an attorney who is admitted under DUCivR 83-1.1.”); see also Klein v. Scogin, 2012 WL 5503540, at *1 (D.
Utah Oct. 10, 2012) (granting a plaintiff’s motion to strike a family trust’s motion to dismiss because the motion was
filed by a pro se defendant who was not a licensed attorney who could represent the trust defendant).
27

28

See id.; DUCivR 83-1.3(c)(1) (“Individuals may represent themselves.”).

One Parcel of Real Prop., 73 F.3d at 1059–1061 (holding that the appellants “waived appellate review by failing
to file specific objections to the magistrate judge’s report and recommendation”).
29

5

As stated above, “only an objection that is sufficiently specific to focus the district
court’s attention on the factual and legal issues” merits de novo review by the district court. 30
Mr. Kamauu’s Objection makes one conclusory statement on which he bases all of his
objections: “Defendant does not have transferable rights.” 31 Although Mr. Kamauu also states
that “the corporate and property records that were supplied by the Plaintiffs in fact do not show
ownership or transferable connections by the Defendants,” Mr. Kamauu does not identify any
specific errors or provide any explanation to support his contention. 32 Nor did Mr. Kamauu
respond to the court’s supplemental briefing order or contest Plaintiff’s supporting documents in
the two months between when Plaintiffs’ documents were filed and Judge Oberg issued her
Report. 33 Instead, Mr. Kamauu asserts “[w]ith just simple due diligence it is very easy to
uncover that the information is incorrect.” 34 But Mr. Kamauu does not provide enough
information for the court to determine what the factual or legal issues are. Accordingly, Mr.
Kamauu has waived review “by failing to file specific objections to the magistrate judge’s report
and recommendation.” 35
II.

Clear Error Review

Having addressed Defendants’ objections, the court now turns to the remainder of the
Report, which it reviews for clear error. After careful consideration, the court finds no clear
error in any of Judge Oberg’s unobjected-to conclusions.

30

One Parcel of Real Prop., 73 F.3d at 1060.

31

Dt. 97, at 2–3.

32

Id., at 1.

33

See generally, Dkt. 93–96.

34

Id.

35

One Parcel of Real Prop., 73 F.3d at 1061.

6

CONCLUSION
For the reasons stated above, Defendants’ Objection 36 to Judge Oberg’s Report and
Recommendation 37 is OVERRULED. Judge Oberg’s Report is ADOPTED and Defendant’s
Application 38 is GRANTED.

SO ORDERED this 29th day of August 2024.
BY THE COURT:
____________________________
ROBERT J. SHELBY
United States Chief District Judge

36

Dkt. 97.

37

Dkt. 96.

38

Dkt. 91.

7