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United States District Court, S.D. California

September 23, 2005.


The opinion of the court was delivered by: IRMA GONZALEZ, District Judge

Presently before the Court are motions to dismiss brought by defendants State of Hawaii, Hawaii Sheriff's Department, and the Honorable Ronald Ibarra. (collectively "defendants") motion to dismiss the complaint. For the following reasons, the Court grants defendants' motion.


  A. Factual Background

  Plaintiff Howard Hofelich ("plaintiff"), proceeding pro se, brings this civil action against numerous defendants under 42 U.S.C. §§ 1983, 1988, and 18 U.S.C. §§ 1961, 1962, and 1964 "for violation of the Fourth Amendment of the United States Constitution, wire and mail fraud, obstruction of interstate commerce, fraud, racketeering, and failure to protect and failure to adjudicate for its Hawaii citizen, Plaintiff Howard R. Hofelich, a prior small business owner (Hawaiian Divers) in Kailua-Kona, Hawaii." (Compl. ¶ 1.) Plaintiff also claims that "Defendants knowingly and with malice, ignored U.S. Code and Title 50 Servicemans Civil Relief Act and deprived Plaintiff of his lawful property, even with the knowledge he was deployed overseas." Id. ¶ 20.

  In February of 1995, plaintiff alleges to have entered into an agreement with defendant Mark McShane. McShane allegedly represented himself as Lord & Auditor, Inc., a Nevada corporation which was the purported owner and lessor of a certain commercial vessel. Id. ¶ 5. The alleged agreement called for McShane to lease to plaintiff the commercial vessel in exchange for plaintiff's signing of an interstate leasing agreement for hydrostatic test equipment.*fn1 Id. at 2. Plaintiff was also to receive stock in Lord & Auditor, Inc. Id. Plaintiff allegedly executed this agreement with the H. Isabelle McGarry Trust. Id.

  Thereafter, plaintiff alleges McShane breached the lease agreement through various acts. First, plaintiff alleges that Lord & Auditor, Inc. cancelled the transfer of its stock to him. Compl. ¶ 2. Second, plaintiff contends the commercial vessel lease was rescinded because Lord & Auditor, Inc. did not own the vessel and it was no longer available to be leased or purchased. Id. Lastly, plaintiff claims that the hydrostatic test equipment was never delivered in full. Id. Because of McShane's alleged breach, plaintiff claims that he had to purchase the commercial vessel from its genuine owner, JK Llewellyn Chiropractic Trust. Id.

  In October 1995, Lord & Auditor, Inc. allegedly filed suit against plaintiff in the State of Hawaii. In the suit, Lord & Auditor, Inc. claimed that it owned the hydrostatic testing equipment in Hawaii for the purposes of leasing it to plaintiff. Compl. ¶ 6. Plaintiff claims that Lord & Auditor, Inc. and the H. Isabelle McGarry Trust were trying to "double collect on the" lease for the hydrostatic testing equipment. Id. at 2. After filing suit against plaintiff in Hawaii, plaintiff claims that Lord & Auditor, Inc. "vacated the judicial proceedings in Hawaii, took their fraud over state lines, and took up the same proceeding in California, which did not have proper jurisdiction or venue." Id. at 6. Plaintiff claims that he "was forced to appear under protest in California kangaroo court, which found him liable for judgment due to a California home town judge tampering with the jury and the tampering of evidentiary exhibits." Id. Judgment was allegedly entered against plaintiff in March of 1997. Id.

  Thereafter, plaintiff alleges that the California state court judgment was enforced against him in Hawaii. Compl. ¶ 7. Plaintiff makes specific claims against each of the three moving defendants. First, plaintiff claims that the State of Hawaii failed to adjudicate the contractual dispute between plaintiff and Lord & Auditor, Inc., and "allowed the conduct of interstate business of these fraudulent entities, without regulating with business license or collection of tax." Second, plaintiff claims that the Honorable Ronald Ibarra, a Hawaii state judge, failed to adjudicate a State of Hawaii lease, allowed the complaint to be transferred to California, and then executed the judgment in Hawaii. Compl. ¶ 6. Third, plaintiff claims that the Hawaii Sheriff's Department executed the judgment against him and seized equipment valued in excess of one million dollars and allowed flagrant and unimpeded theft during the execution of the order. Compl. ¶¶ 7 and 8.

  B. Procedural Background

  Plaintiff Howard Hofelich, proceeding pro se, filed the instant civil action on June 7, 2005. (Doc. No. 1.) On August 29, 2005, defendant State of Hawaii, defendant Hawaii Sheriff's Department, and defendant the Honorable Ronald Ibarra moved to dismiss the complaint for lack of jurisdiction, or in the alternative, under Federal Rule Civil Procedure 12(b)(6). (Doc. No. 18.) Plaintiff filed an opposition on September 7, 2005, and filed an amended complaint on September 13, 2005.*fn2 Defendants did not file a reply. The Court finds defendants' motion appropriate for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1).

  DISCUSSION A. Legal Standard

  1. Eleventh Amendment Immunity

  The State of Hawaii argues that plaintiff's claims for damages under 42 U.S.C. § 1983, 18 U.S.C. § 1964, and the Servicemembers Civil Relief Act are barred by its Eleventh Amendment Immunity. (Memo. ISO Motion at 10:14-21.) For the following reasons, plaintiff's claims against the State of Hawaii are barred by the doctrine of sovereign immunity.

  The Eleventh Amendment prohibits federal courts from hearing "any suit in law or equity, commenced or prosecuted against one of the United States . . ." The Supreme Court has repeatedly held that the Eleventh Amendment bars suits against a state by its own citizens. See e.g., Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 120,(1984); Edelman v. Jordan, 415 U.S. 651 (1974); Missouri v. Fiske, 290 U.S. 18, 28 (1933). Further, this prohibition "encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities." Kirchmann v. Lake Elsinore Unified School Dist., (2000) 83 Cal. App.4th 1098, 1101; Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). Where a state has not waived its sovereign immunity, the federal courts lack subject matter jurisdiction over a plaintiff's claim. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989).

  Unless a state has waived its Eleventh Amendment immunity or Congress has overridden it, a state cannot be sued regardless of the relief sought. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Confederated Tribes & Bands v. Locke, 176 F.3d 467, 469 (9th Cir. 1999). Here, the State of Hawaii has not waived its sovereign immunity for claims for damages pursuant to 42 U.S.C. § 1983, 18 U.S.C. § 1964, or the Servicemembers Civil Relief Act. See Pele Defense Fund v. Paty, 73 Haw. 578, 608 (1992). Furthermore. Congress has not overridden Hawaii's sovereign immunity for claims under these statutes. Ouem v. Jordan, 440 U.S. 332, 341 (1979); Bair v. Krug, 853 F.2d 572, 674-675 (9th Cir. 1988).

  Accordingly, since the State of Hawaii has not waived its sovereign immunity and Congress has not abrogated it, plaintiff's claims against the State of Hawaii are hereby dismissed for lack of subject matter jurisdiction.*fn3 See Will, 491 U.S. 66.

  2. Personal Jurisdiction

  The Hawaii Sheriff's Department avers that all claims against it must be dismissed for lack of personal jurisdiction. For the following reasons, the Court grants the Sheriff's Department's motion to dismiss for lack of jurisdiction.

  Federal Rule of Civil Procedure 12(b)(2) provides for dismissal of an action where the court lacks personal jurisdiction over a defendant. See FED. R. CIV. P. 12(b)(2). The burden of proof is on the plaintiff to make a prima facie showing that personal jurisdiction exists. Data Disc., Inc. v. Syss. Tech. Ass'n, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). In order to meet that burden, a plaintiff must show that California's long-arm statute confers jurisdiction over a defendant and that the exercise of jurisdiction accords with federal constitutional principles of due process. Amoco v. Egypt Oil Co. v. Leonis Navigation Co., Inc., 1 F.3d 848, 850 (9th Cir. 1993). California's long-arm statute authorizes the exercise of jurisdiction over non-residents on any basis not inconsistent with the California or United States constitutions. St. of Or. v. Superior Court, 24 Cal. App. 4th 1550, 1556 (Cal.Ct.App. 1994); Cal. Code of Civ. P. § 410.10. Because California's long arm statute extends jurisdiction to the maximum extent permitted by due process, the jurisdictional analysis under California law and under federal due process principles is the same. FDIC v. British American Ins. Co. Ltd., 828 F.2d 1439, 1441 (9th Cir. 1987); Rowe v. Dorrough, 150 Cal. App. 3d 901, 905 (Cal.Ct.App. 1984).

  Due process permits the exercise of personal jurisdiction over a non-resident defendant only when the defendant has certain minimum contacts with the forum state. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1943); Secrest Machine Corp. v. Superior Court, 33 Cal. 3d 664, 668 (Cal. 1983). A court may exercise either general or specific jurisdiction over a non-resident defendant. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 416 (9th Cir. 1997) (citing Helicopteros Nacionales v. Hall, 466 U.S. 408, 414 (1984)). First, a court may exercise "general jurisdiction" if the defendant's activities in the state are "substantial" or "continuous or systematic." Haisten v. Grass Valley Med. Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir. 1986). Second, if a court lacks general jurisdiction, that court may nonetheless exercise "specific jurisdiction" over a defendant if a plaintiff can establish that the present claims arose directly from defendant's forum-related activities. In particular, specific jurisdiction requires a showing that: (1) the out-of-state defendant purposefully availed himself of or directed its activities toward residents of the forum state; (2) the plaintiff's cause of action arises out of or results from the defendant's forum-related contacts; and (3) the forum's exercise of personal jurisdiction in the particular case is reasonable. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477-78 (1985); Sklyar v. Princess Props., Int'l, Ltd., 194 Cal. App. 3d 1202, 1206 (Cal.Ct.App. 1987). The determination of whether these factors are met is a factual question to be determined in each case. Thomas P. Gonzalez Corp. v. Consejo Nacional De Production De Costa Rica, 614 F.2d 1247, 1251 (9th Cir. 1980).

  Plaintiff makes no jurisdictional allegations in his complaint. Plaintiff's sole allegation against the Sheriff's Department is that it "never followed the sequence of the execution order but went straight for the business assets, thereby permanently destroying the business . . . In addition . . . the Hawaii County Sheriff's Department allowed flagrant and unimpeded theft during the actual act of seizure of business." (Compl. ¶ 7.)

  Since the Sheriff's Department has challenged this Court's jurisdiction, plaintiff has the burden of proof. Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515, 1522 (9th Cir. 1983.) Accordingly, in order to establish specific jurisdiction over the Sheriff's Department, plaintiff must establish that: (1) the Sheriff's Department purposefully directed its activities towards California; (2) plaintiff's cause of action arises out of or results from the Sheriff's Department's California related contacts; (3) this Court's exercise of personal jurisdiction must be reasonable; i.e., it comports with the notions of "fair play and substantial justice." Burger King Corp. v. Rudzewic, 471 U.S. 462, 477-78 (1985). The Ninth Circuit has adopted a "flexible approach" that allows the exercise of personal jurisdiction where "considerations of reasonableness dictate." Ochoa v. J.B. Martin & Sons Farms, Inc., 287 F.3d 1182, 1188, fn. 2 (9th Cir. 2002). However, where a defendant presents "a compelling case that jurisdiction would be unreasonable," there is no need to address the first two prongs of the test. Von Grabe v. Sprint PCS, 312 F. Supp. 2d 1285, 1293 (S.D. Cal. 2003).

  Plaintiff has not met his burden. Asserting jurisdiction over the Sheriff's Department is unreasonable and offends the traditional notions of fair play and substantial justice. The Sheriff's Department's sole involvement in the events that underlie this suit was its execution of the California judgment on plaintiff's property in the State of Hawaii. There are no allegations that anyone from the Sheriff's Department traveled to California, conducted any activities in California, seized property in California, or in any way purposefully directed its activities to California. Further, the Sheriff's Department played no role in plaintiff's California law suit. Plaintiff's opposition only bolsters the Sheriff's Department's assertion that its actions were confined to the State of Hawaii. See Opp. at 6. ("[T]he State of Hawaii . . .: (1) Illegally seized his property [in Hawaii] . . .; (2) Illegally destroyed his business and lease agreements with the State of Hawaii . . .; and (6) Conducted a corrupt sheriffs auction [in Hawaii]."). Accordingly, plaintiff fails to establish that the Hawaii Sheriff's Department purposefully directed its activities towards California. Thus, because the Court does not have personal jurisdiction over the Hawaii Sheriff's Department, the Sheriff's Department's motion to dismiss the complaint for lack of personal jurisdiction is hereby granted.

  3. Judicial Immunity

  Plaintiff sues the Honorable Ronald Ibarra, in his official capacity, for damages under 42 U.S.C. § 1983, 18 U.S.C. § 1964, and the Servicemembers Civil Relief Act. Judges are absolutely immune against an action for damages for acts performed in their judicial capacities, "even when such acts are . . . alleged to have been done maliciously or corruptly." Stump v. Sparkman, 435 U.S. 349, 356 (1978) (citation omitted). Judge Ibarra is absolutely immune notwithstanding plaintiff's allegations of fraud and racketeering. Plaintiff has failed to allege any facts in support of his claim that Judge Ibarra and the other defendants conspired against him. "Mere conclusory allegations of conspiracy cannot, absent reference to material facts, state a substantial claim of federal conspiracy." Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986) (citation omitted). Thus, plaintiff fails to state a claim upon which relief can be granted against the Honorable Ronald Ibarra.


  For the foregoing reasons, defendants motion to dismiss the complaint is hereby GRANTED. Plaintiff's claims against the State of Hawaii and the Honorable Ronald Ibarra are dismissed with prejudice.*fn4 Plaintiff's claims against the Hawaii Sheriff's Department are dismissed without prejudice.*fn5



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