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United States District Court, S.D. California

October 17, 2005.

STATE OF HAWAII, ET AL., Defendants.

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


Doc. No. 31.

Presently before the Court is defendant State of California's ("defendant") motion to dismiss the complaint. For the following reasons, the Court grants defendant's motion.


  A. Factual Background

  Plaintiff Howard Hofelich ("plaintiff"), proceeding pro se, brings this civil action against numerous defendants under 42 U.S.C.I 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 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 Second, plaintiff contends the commercial vessel lease was rescinded because Lord & Auditor, Inc. did not own the vessel and it was no longer available to be leased or purchased.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 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, proceeding pro se, filed the instant civil action on June 7, 2005. (Doc. No. 1.) On September 9, 2005, defendant moved to dismiss the complaint for lack of jurisdiction. (Doc. No. 31.) Plaintiff did not file an opposition, but filed an amended complaint on September 9, 2005.*fn2 Defendants have filed a reply. The matter is now fully briefed, and the Court finds it appropriate for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1).


  A. Eleventh Amendment Immunity

  The State of California 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 California 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 California 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 California's sovereign immunity for claims under 42 U.S.C. § 1983, 18 U.S.C. § 1964, or the Servicemembers Civil Relief Act. Quern 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 California has not waived its sovereign immunity and Congress has not abrogated it, plaintiff's claims against the State of California are hereby dismissed for lack of subject matter jurisdiction. See Will, 491 U.S. 66.


  For the foregoing reasons, defendants motion to dismiss the complaint is hereby GRANTED. Plaintiff's claims against the State of California are dismissed with prejudice because the defects in plaintiff's complaint cannot be cured by amendment.*fn3 IT IS SO ORDERED.


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