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Thom Shiraishi v. United States of America

September 30, 2011


The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge


Before the Court is Defendant the United States of America's ("the United States") Motion for Vexatious Litigant Order ("Motion"), filed on July 28, 2011. Pro se plaintiff Thom Shiraishi ("Shiraishi") filed his memorandum in opposition on August 15, 2011, and the United States filed its reply on August 31, 2011.*fn1 The United States also filed a Request for Judicial Notice on September 16, 2011. This matter came on for hearing on September 19, 2011. Assistant United States Attorney Rachel Moriyama appeared on behalf of the United States, and Shiraishi appeared on his own behalf. After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, the United States' Motion is HEREBY GRANTED for the reasons set forth below.


The United States acknowledges that a vexatious litigant order is "an extreme remedy and should rarely be used," [Mem. in Supp. of Motion at 2 (some citations omitted) (citing De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)),] because it "'can tread on a litigant's due process right of access to the courts.'" [Id. (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007)).] The United States, however, argues that it can establish all of the four factors which the Ninth Circuit has held must be satisfied for a court to issue a vexatious litigant order. [Id. at 3-4 (some citations omitted) (citing Molski, 500 F.3d at 1057).]

The United States asks the Court to take judicial notice of Shiraishi's original cases and the pro se civil actions against government defendants that he filed arising from the original cases.

I. Shiraishi's Original Cases

The relevant litigation history began with actions to foreclose on loans secured by mortgages on Shiraishi's farm property ("the Property").

A. Bank of Hawaii v. Shiraishi, et al., CV 85-00360

Bank of Hawaii ("BOH") filed a foreclosure action ("BOH Foreclosure Case") in state court on March 18, 1985.*fn2 The BOH Foreclosure Case arose from Shiraishi's alleged default on various loans - including a credit card account, a line of credit, and first and third mortgage loans on the Property. The United States, which was a defendant in the BOH Foreclosure Case because of federal tax liens and because the Farmers Home Administration, United States Department of Agriculture ("FmHA"), held a second mortgage on the Property, removed the action to federal court. United States Attorney ("U.S. Attorney") Florence T. Nakakuni, who was an Assistant United States Attorney ("AUSA") at the time, represented the FmHA and the Internal Revenue Service ("IRS"). The parties settled the case through a Mutual Release Settlement and Indemnification Agreement ("BOH Settlement Agreement") dated June 2, 1986, and filed on June 23, 1986. On November 5, 1986, the district judge approved and filed the parties' stipulation to dismiss the case with prejudice. [Moriyama Decl. at ¶ 3(a).]

B. United States v. Shiraishi, et al., CV 04-00678 SPK-LEK

The United States filed a foreclosure action ("FSA Foreclosure Case") on November 16, 2004 on behalf of the Farm Service Agency, United States Department of Agriculture ("FSA") based on Shiraishi's alleged default on two FSA loans.*fn3 At the time, Edward Kubo, Jr., was the United States Attorney. AUSAs Harry Yee and Edric Ching handled this case. After a two-day bench trial, during which R. Steven Geshell, Esq., represented Shiraishi, Senior United States District Judge Samuel P. King ruled in favor of the United States and ultimately entered a judgment and interlocutory decree of foreclosure authorizing the United States to sell the Property. [Id. at ¶ 3(c).]

Shiraishi appealed and, on August 27, 2007, the Ninth Circuit dismissed the appeal as moot because Shiraishi did not obtain a stay of the foreclosure sale during the pendency of the appeal, and the Property had been sold. [Id.]

C. In re Shiraishi, Case No. 06-00636 (Bankr. D. Hawai`i)

Shiraishi filed a Chapter 7 bankruptcy proceeding on September 8, 2006, to try to stop or postpone the foreclosure sale authorized in the FSA Foreclosure Case. AUSAs Yee and Ching obtained relief from the automatic stay to allow the foreclosure auction to go forward. [Id. at ¶ 3(d).]

II. Pro Se Actions Against Government Defendants

Shiraishi has also filed a number of civil actions against government defendants based on or related to the original cases. The cases that Shiraishi filed this year prompted the United States to seek a vexatious litigant order.

A. Shiraishi, et al. v. United States, CV 85-00984

During the pendency of the BOH Foreclosure Case, Shiraishi filed this action ("FmHA Tort Case") in this district court on August 20, 1985.*fn4 Shiraishi alleged that FmHA employees committed various torts in connection with the loans at issue in the BOH Foreclosure Case. Then-AUSA Nakakuni represented the United States in this case. The district judge ultimately found that Shiraishi and the United States resolved this dispute in the BOH Settlement Agreement, and the district judge dismissed the case for lack of subject matter jurisdiction. [Id. at ¶ 3(b).]

B. Shiraishi v. United States, CV 06-00600 EFS-LEK

On October 23, 2006, Shiraishi filed a complaint in state court against four FSA employees and a paralegal in the United States Attorney's Office ("Shiraishi v. Greer").*fn5 The action was based on events that led up to the filing of the FSA Foreclosure Case. AUSA Ching represented the defendants. The defendants removed the case and later filed a notice substituting the United States for the individual defendants. On August 3, 2007, the district judge issued an order granting the United States' motion to dismiss the case based on sovereign immunity and on res judicata grounds. Shiraishi appealed and, on March 3, 2009, the Ninth Circuit issued a memorandum decision affirming the judgment. [Id. at ¶ 3(e).]

C. Shiraishi v. Kubo, et al., CV 11-00225 DAE-BMK

On March 22, 2011, Shiraishi filed this action ("Shiraishi v. Kubo") in state court against Former U.S. Attorney Kubo and AUSAs Yee and Ching, challenging their actions in connection with the FSA Foreclosure Case and the related bankruptcy proceeding.*fn6 The defendants, who are represented by AUSA Rachel Moriyama, removed the case on April 7, 2011. [Id. at ¶ 3(f).] On April 14, 2011, Shiraishi filed a motion to remand. [Shiraishi v. Kubo (dkt. no. 11).] On May 19, 2011, United States Magistrate Judge Richard L. Puglisi issued his findings and recommendation to deny the motion ("Shiraishi v. Kubo F&R"). [Id. (dkt. no. 17).] On May 25, 2011, Shiraishi filed objections to the Shiraishi v. Kubo F&R. [Id. (dkt. no. 21).]

The district judge adopted the Shiraishi v. Kubo F&R on June 23, 2011. The district judge noted: "It is not entirely clear to the Court what, specifically, Plaintiff here challenges with respect to Judge Puglisi's decision. The majority of Plaintiff's Objections can only be characterized as ad hominem attacks on Judge Puglisi." [Shiraishi v. Kubo, Order, filed 6/23/11 (dkt. no. 28) at 6 (citation and footnote omitted).] In fact, Shiraishi seemed to suggest that Magistrate Judge Puglisi had engaged in criminal or negligent conduct. [Id. at 6 n.1 (citation omitted).]

On May 23, 2011, the defendants filed a motion to dismiss the complaint based on absolute immunity, qualified immunity, and res judicata. [Shiraishi v. Kubo (dkt. no. 18).] On September 9, 2011, United States District Judge David Alan Ezra, however, denied the motion without prejudice and sua sponte dismissed the complaint for failure to comply with Fed. R. Civ. P. 8. Shiraishi has thirty days from the filing of Judge Ezra's order to amend his complaint. [Id. (dkt. no. 33).]

D. Shiraishi v. United States, CV 11-00323 JMS-BMK

On May 5, 2011, Shiraishi filed this action ("Shiraishi v. Nakakuni") in state court against U.S. Attorney Nakakuni, challenging her actions in the BOH Foreclosure Case.*fn7 AUSA Moriyama is representing U.S. Attorney Nakakuni, and she removed the case on May 19, 2011. [Shiraishi v. Nakakuni (dkt. no. 1).] Shiraishi filed a motion to remand on May 25, 2011. [Id. (dkt. no. 8).]

On July 12, 2011, United States Magistrate Judge Barry M. Kurren issued his findings and recommendation that Shiraishi's motion to remand be denied ("Shiraishi v. Nakakuni F&R"). The document also contained an order that the United States be substituted as the defendant for U.S. Attorney Nakakuni. [Id. (dkt. no. 24).] On July 18, 2011, Shiraishi filed objections to the Shiraishi v. Nakakuni F&R, arguing that the substitution was erroneous and constituted unethical misconduct. He also stated that he would address Magistrate Judge Kurren's denial of his basic fundamental rights in a separate complaint. [Id. (dkt. no. 25) at 1.] On July 27, 2011, United States District Judge J. Michael Seabright issued an order adopting the Shiraishi v. Nakakuni F&R and affirming the order substituting the United States as the defendant. [Id. (dkt. no. 29).]

On June 30, 2011, the United States filed a motion to dismiss the complaint with prejudice based on immunity and statute of limitations grounds. [Id. (dkt. no. 20).] On September 27, 2011, Judge Seabright issued an order that, inter alia, granted the motion and dismissed the case with prejudice ("Shiraishi v. Nakakuni Dismissal Order"). [Id. (dkt. no. 44).] The Clerk's Office entered final judgment on the same day. [Id. (dkt. no. 45.).]

E. Shiraishi v. Puglisi, et al., CV 11-00425 REJ

On June 13, 2011, Shiraishi filed this action against Magistrate Judge Puglisi, First Assistant United States Attorney ("FAUSA") Elliot Enoki, and AUSA Moriyama in state court ("Shiraishi v. Puglisi").*fn8 This case is based on the defendants' actions in their official capacities in connection with the litigation of Shiraishi v. Kubo and Shiraishi v. Nakakuni. [Moriyama Decl. at ΒΆ 3(h).] The defendants removed this action on July 1, 2011, and filed a motion to dismiss on July 21, 2011. [Shiraishi v. Puglisi (dkt. nos. 1, 8).] On August 10, 2011, after the briefing was complete, Senior United States District Judge Robert E. Jones, sitting by designation, issued an entering order granting the motion and dismissing the case with prejudice for ...

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