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Thom Shiraishi v. United States of America

September 27, 2011

THOM SHIRAISHI,
PLAINTIFF,
v.
UNITED STATES OF AMERICA,
DEFENDANT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT WITH PREJUDICE AND DENYING PLAINTIFF'S COUNTER-MOTION FOR RE-SUBSTITUTION

I. INTRODUCTION

On May 5, 2011, Plaintiff Thom Shiraishi ("Plaintiff"), proceeding pro se, filed this Complaint against current United States Attorney Florence Nakakuni ("Nakakuni") in, as best as this court can construe, both her official capacity as a former Assistant United States Attorney ("AUSA") and her individual capacity. Plaintiff's Complaint asserts that Nakakuni's alleged failure to comply with the settlement agreement entered in Bank of Hawaii v. Shiraishi, Civ. No. 85-0360 (D. Haw. 1985) (the "1985 Foreclosure Suit"), violated, among other causes of action, 42 U.S.C. §§ 1983, 1985 and 1986 and the Tucker Act, 28 U.S.C. § 1491. Subsequently, the court substituted the United States as Defendant in place of Nakakuni. Doc. No. 29, Order Adopting Findings & Rec.

Currently before the court is Defendant's Motion to Dismiss Complaint With Prejudice. In response, Plaintiff filed a Counter-Motion for Re-Substitution*fn1 arguing that Nakakuni was not acting within the scope of employment as a public official. For the following reasons, the court GRANTS Defendant's Motion to Dismiss and DENIES Plaintiff's Counter-Motion for Re-Substitution.*fn2

II. BACKGROUND

This is the second of five pro se Complaints that Plaintiff has filed in Hawaii State Court since March 22, 2011 against judges and attorneys who were involved in prior litigation against the Plaintiff.*fn3 This suit seeks (1) $2,052,744 in "general damages;" (2) $24,500 in compensatory damages; and (3) $3,000,000 in punitive damages from Nakakuni for alleged actions she undertook --approximately twenty-five years ago -- as an AUSA in connection with the 1985 Foreclosure Suit. Doc. No. 1-1, Compl. ¶ 4.*fn4 The 1985 Foreclosure Suit was ultimately resolved through a written Mutual Release Settlement and Indemnification Agreement (the "1986 Settlement Agreement") that was signed by all parties and filed on June 23, 1986. Doc. No. 20-5, Def.'s Mot. to Dismiss Ex. B. On November 5, 1986, the court approved the 1986 Settlement Agreement and dismissed the 1985 Foreclosure Suit with prejudice. Doc. No. 20-6, Def.'s Mot. to Dismiss Ex. C.

On May 5, 2011, Plaintiff filed this Complaint in the Circuit Court of the First Circuit, State of Hawaii. Doc. No. 1-1, Compl. Plaintiff alleges:

(1) Nakakuni failed to comply with the terms of the 1986 Settlement Agreement, which resulted in "betrayal and breach of a legal and fiduciary duty, violation of a citizens Civil Rights under Title 42 [U.S.C.] §§ 1983, 1985 and 1986 [and] violation of contract rights under the Tucker Act;" (2) Nakakuni committed various crimes, including dereliction of duty, conspiracy to breach a judicial order, and embezzlement of $115,000 that was allegedly owed Plaintiff under the 1986 Settlement Agreement, in "an obvious retaliation for being embarrassed and humiliated in having to agree to solely fund a pro se's demands and Mr. Ezra's demands;" (3) claims "against individual federal official[s] under the Bivens Doctrine that can address the Defendant's breach of contract, embezzlement, fraud and demanding a trial by jury that cannot be addressed within the Federal Tort Claims Act against the Government;" (4) the theft and embezzlement of Plaintiff's Social Security; and (5) that the United States Attorney and AUSAs lied in their complaint in an effort to cover up Nakakuni's embezzlement of the $115,000. Id. ¶¶ 4, 6-11, 22; see also Doc. No. 26, Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss at 9.*fn5

On May 19, 2011, Nakakuni removed the action to this court pursuant to the Federal Officer Removal Statute, 28 U.S.C. § 1442, and the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679 (the "Westfall Act"). Doc. No. 1, Notice of Removal ¶ 3. Under the Westfall Act, the acting United States Attorney for the District of Hawaii certified that Nakakuni "was acting within the course and scope of her employment as an Assistant United States Attorney . . . at the time of the conduct alleged in the Complaint." Doc. No. 1-2, Enoki Certification ¶ 3.*fn6

On May 25, 2011, Plaintiff filed a Motion for Remand. Doc. No. 8, Pl.'s Mot. for Remand ¶ 3. On June 7, 2011, Defendant filed an Opposition to the Motion for Remand, and Plaintiff filed a Reply on June 13, 2011. Doc. Nos. 10 and 12. On June 30, 2011, Defendant filed a Motion to Dismiss, asserting Plaintiff's Complaint should be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. No. 20, Def.'s Mot. to Dismiss at 1.

On July 12, 2011, United States Magistrate Judge Barry M. Kurren issued a Findings and Recommendation ("F&R") to deny Plaintiff's Motion for Remand. Doc. No. 24. Magistrate Judge Kurren also substituted the United States as Defendant in place of Nakakuni. Id. at 7. On July 18, 2011, Plaintiff filed an Objection to the F&R and Opposition to the Motion to Dismiss, and also appealed the Order substituting the United States. Doc. Nos. 25 and 26. On July 25, 2011, Defendant filed a Response to Plaintiff's Objection. Doc. No. 27.

On July 27, 2011, this court issued an Order -- after de novo review --adopting the F&R and affirming the Order substituting the United States. Doc. No. 29. On August 1, 2011, Plaintiff filed an Objection to the Order adopting the F&R, and on August 3, 2011, Plaintiff also again objected to the substitution of the United States as the Defendant. Doc. Nos. 34 and 36.*fn7 On August 15, 2011, Plaintiff filed a "Motion for Re-Substitution." Doc. No. 38. On August 25, 2011, Defendant filed a Reply to the Opposition to the Motion to Dismiss and in Opposition to Plaintiff's Counter-Motion. Doc. No. 40. On September 6, 2011, Plaintiff filed a Reply. Doc. No. 41.

In sum, currently before the court is Defendant's Motion to Dismiss Complaint with Prejudice and Plaintiff's Counter-Motion for Re-Substitution.

III. STANDARDS OF REVIEW

A. Motion to Dismiss Pursuant to ...


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