United States District Court, S.D. California
October 17, 2005.
HOWARD ROBERT HOFELICH, Plaintiff,
STATE OF HAWAII, ET AL., Defendants.
The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER GRANTING DEFENDANT STATE OF CALIFORNIA'S MOTION TO DISMISS
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lease was rescinded because Lord & Auditor, Inc. did not own the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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