United States District Court, S.D. California
September 23, 2005.
HOWARD ROBERT HOFELICH, Plaintiff,
STATE OF HAWAII, STATE OF CALIFORNIA, HAWAII COUNTY SHERIFF'S DEPARTMENT, HAWAII COUNTY POLICE DEPARTMENT, RONALD IBARRA, DENNIS KRUEGER, H, ISABELLE McGARRY TRUST, LORD & AUDITOR, INC., MARK McSHANE, JOHN DOES 1-20, Defendants.
The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER GRANTING DEFENDANT STATE OF HAWAII'S, DEFENDANT HAWAII
SHERIFF'S DEPARTMENT'S, AND DEFENDANT THE HONORABLE RONALD
IBARRA'S MOTION TO DISMISS
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
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lease was rescinded because Lord & Auditor, Inc. did not own the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
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
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.