The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT
Plaintiff Jose I. Guzman ("Guzman") has brought suit against Defendants Russell T. Higa, Paul Tsukiyama, Bruce Anderson, Vincent Lee,*fn1 Charla J. Ota, Alice M. Hall, Wesley Lo,*fn2 Lisa Knutson,*fn3 Wendy Ono, and Kimberly Ueno (collectively, "Defendants") for alleged due process violations in connection with his application for employment. In his "First Amended Complaint For Declaratory Judgment; Compensatory and Examplary [sic] Damages" ("FAC"), Guzman barely mentions Defendants' allegedly wrongful actions as a whole, much less individually, and fails to allege a basis for federal jurisdiction. Lacking subject matter jurisdiction over Guzman's claims, the court GRANTS Defendants' Motion to Dismiss First Amended Complaint (the "Motion").
Because the FAC is sometimes unclear, the court, to the extent necessary to understand Guzman's allegations, relies on the supplemental facts offered in Defendants' Motion. Guzman does not appear to contest those supplemental facts.
Guzman is a resident of the City and County of Honolulu, State of Hawaii. See FAC ¶ 44, ECF No. 9. He alleges that, on or around March 9, 2011, he applied for civil service positions as a Building Maintenance Worker with the Oahu and Maui regions of the Hawaii Health Systems Corporation, State of Hawaii ("HHSC").*fn4 Id. ¶¶ 4, 45; Employment Application, attached as Exhibit "C" to FAC. Defendants allege that Guzman is not, and has never been, an HHSC employee. See Motion at 2, ECF No. 10.
After interviewing Guzman, the Oahu Region of HHSC informed him by a letter signed by Higa and dated May 10, 2011, that he had not been selected. See FAC ¶ 26, ECF No. 9; Letter from R. Higa to J. Guzman (May 10, 2011), attached as Exhibit "B" to Motion, ECF No. 10-3. The letter informed Guzman that he could request administrative review of the decision within 20 days of the date of the letter. See id. By letter dated March 20, 2011, the Maui Region of HHSC informed Guzman that it also had not selected him. See FAC ¶ 24, ECF No. 9; Letter from K. Ueno to J. Guzman (Mar. 30, 2011), attached as Exhibit "C" to Motion, ECF No. 10-4. Guzman does not appear to have filed a timely request for administrative review in either instance. See Motion at 2-3, ECF No. 10.
Guzman commenced this action on July 28, 2011, and amended his Complaint on September 13, 2011. While the allegations in the FAC are difficult to follow, the caption to the FAC indicates that Guzman is asserting nine claims:
(1) Deprivation of Substantive Due Process; (2) Deprivation of Procedural Due Process; (3) Deprivation of Confrontation and Cross-Examination; (4) Deprivation of Article I, Sec. 5 of the Hawaii Constitution; (5) Deprivation of Article I, Sec. 5 of the Hawaii Constitution - Deprivation of Procedural Due Process; (6) Deprivation of Confrontation and Cross-Examination Under Hawaii Constitution; (7) Disregard of HRS, Chapter 1, Section 2; (8) Disregard of HRS, Chapter 91; and (9) Disregard of HRS, Chapter 91, Section 3. See FAC, ECF No. 9. Guzman does not specify what allegedly wrongful act any individual Defendant took, instead alleging generally that "Defendants are employees of [the Oahu Region] and [the Maui Region] of HHSC, State of Hawaii, and acted under color of state law when they deprived Plaintiff of his federal and state constitutional rights and are residents of the State of Hawaii[.]" Id. ¶ 43. In lieu of an Answer, Defendants filed the present Motion on October 12, 2011. See Motion, ECF No. 10. Guzman filed no Opposition to the Motion, but, on the deadline for filing an Opposition, filed his own Motion for Partial Summary Judgment ("MPSJ"). See Pl. Mot. for Partial Summ. J; Pl. Will Address Count I, VII, VIII and IX First and Count I Last, ECF No. 14. However, as Guzman's MPSJ suggests that the present Motion is improper, Guzman apparently intended the MPSJ to be his Opposition to the present Motion. See MPSJ at 2, ECF No. 14 ("On October 12, 2011 Defendant [sic] filed a motion to dismiss plaintiff's 'FAC' without leave of court. Today is January 5, 2012 and Plaintiff has yet to receive defendants' answer to plaintiff's complaint."). Noting that the MPSJ did not address the same issues as the present Motion, this court did not treat the MPSJ as a counter-motion that could be heard with the Motion. The MPSJ is set for hearing on April 2, 2012. See Notice of Hr'g on Mot., ECF No. 15. Defendants timely filed their Reply on January 13, 2011. See Defs.' Reply Mem. in Supp. of Mot. to Dismiss First Am. Compl., Filed Oct. 12, 2011, ECF No. 16.
Rule 12(b)(1) of the Federal Rules of Civil Procedure
provides: "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]"
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may either attack the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction, or attack the existence of subject matter jurisdiction in fact. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When, as is the case with Defendants' Motion, the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of ...