United States District Court, D. Hawai'i
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James, ChoonJamesHawaii@gmail.com, Plaintiff, Pro se, Laie,
City and County of Honolulu, Defendant: Nicolette Winter,
Office of Corporation Counsel-Honolulu, Honolulu, HI; Paul S.
Aoki, Department of Corporation Counsel, Honolulu, Hi.
City and County of Honolulu, Counter Claimant: Paul S. Aoki,
Department of Corporation Counsel, Honolulu, Hi.
(1) GRANTING IN PART DEFENDANT CITY AND COUNTY OF
HONOLULU'S MOTION FOR SUMMARY JUDGMENT, DOC. NO. 13; AND
(2) DECLINING SUPPLEMENTAL JURISDICTION OVER REMAINING STATE
Michael Seabright, United States District Judge.
now Plaintiff Choon James' (" James" ) second
action in this court against Defendant City and County of
Honolulu (the " City" ), asserting United States
and Hawaii State Constitutional violations and state law
claims stemming from actions the City took regarding real
property located at 54-282 Kamehameha Highway (the "
subject property" ). Although James is the legal owner
of the subject property, it is the subject of an on-going
eminent domain action in the First Circuit Court of the State
of Hawaii, in which the City obtained an Ex Parte Order of
Possession (the " Possession Order" ) pursuant to
Hawaii Revised Statutes (" HRS" ) § 101-29.
first action, James v. City & County of Honolulu,
Civ. No. 13-397 JMS-BMK (the " First Action" ),
James alleged the same claims as in this action, all stemming
from the City's May 29, 2013 seizure of signs she placed
on the subject property. After the court denied the
parties' motions for summary judgment, a settlement was
reached. In this second action, James largely recycles her
Complaint from the First Action, but also includes additional
allegations regarding an October 18, 2013 seizure of signs
and the City's alleged interference with James'
contract with Reynolds Recycling Inc. (" Reynolds"
), who was leasing the subject property from
James. The City has counter-claimed for breach of settlement
before the court are Motions for Summary Judgment brought by
both parties. Based on the following, the court GRANTS in
part the City's Motion for Summary Judgment as to
James' federal claims, and DECLINES supplemental
jurisdiction over the remaining state law claims.
the facts relevant to the parties' Motions for Summary
Judgment are not only undisputed, but were previously
outlined in detail in the court's August 20, 2014 Order
denying the parties' motions for summary judgment in the
First Action (the " August 20, 2014 Order" ).
See James v. City & Cnty. of Honolulu, Civ.
No. 13-00397 JMS-BMK, 2014 WL 4181461 (D. Haw. Aug. 20,
2014). The court therefore first summarizes the relevant
facts as outlined in the August 20, 2014 Order, and then
addresses those facts that are new to this action.
Facts Leading Up to Filing of First Action
relevant facts, as described in court's August 20, 2014
Order in the First Action, include the
April 21, 2010, the City filed an action in the First Circuit
Court of the State of Hawaii, Civ. No. 10-1-863-05 RAN (the
" State Action" ), against James and her husband
Mark Olov James seeking to condemn, in fee simple, the
subject property for use in the Hauula Fire Station
Replacement Project. On April 22, 2010, the City filed an Ex
Parte Motion for an Order Putting the City in Possession of
the Property pursuant to HRS § 101-29 (" Ex Parte
Motion" ). The City's Ex Parte Motion and its
supporting evidence recites that the City is seeking
condemnation of the subject property for a new Hauula Fire
Station, and estimates that just compensation for the subject
property is $521,000, which the City paid to the Chief Clerk
of the First Circuit Court.
April 27, 2010, the State Court entered the Possession Order.
The Possession Order states in relevant part that the City
" is hereby awarded possession of the real property
described in the Complaint filed herein, and [the City] may
do such work thereon as may be required for the purpose for
which the taking of said real property, including its
appurtenances and any improvements thereon, is sought."
the Possession Order, James continued to maintain the subject
property by having the lawn mowed and performing other work.
And despite the Possession Order, the City imposed on James
certain indicia of ownership. For example, when James failed
to mow the lot frequently enough, she received a September
14, 2011 citation from the City for a " Vacant Lot
Overgrown." James also received an October 4, 2011
citation from the City for " Grubbing work w/o a
permit" on the subject property. James paid each of
these citations, as well as the tax she was assessed on the
subject property from 2010 through 2013. In comparison, the
City took little action on the subject property after
obtaining the Possession Order (before the seizure of
James' signs, described below). Indeed, although the
Capital Budget for the City proposed funds for " Hauula
Fire Station Relocation" in 2012, 2013, and
2014, these funds were deleted from the versions of the
Capital Budget adopted by the City.
protest the City's taking, James erected two signs on the
subject property, which stated " YOUTUBE: Eminent Domain
Abuse Hawaii," and " Eminent Domain Abuse Who's
Next?" On May 29, 2013, the City removed the two signs
to an offsite storage location, damaging at least one sign in
the process. At or near where the signs were erected, the
City left two " Storage and Removal Notices"
pursuant to Chapter 29, Article 19 of the Revised Ordinances
of Honolulu (" ROH" ) (" Article 19" ),
an ordinance authorizing the City to seize personal property
left on public property after providing twenty-four hours
notice. When James later sought to retrieve her signs, she
was asked to sign a document entitled " Release of
Impounded Property" (" Release Form" ), which
she refused to do out of concern that signing it could affect
the pending State Action. Instead, James filed the First
Facts Occurring After Filing of First Action
the May 29, 2013 removal of the signs from the subject
property and the filing of the First Action on August 13,
2013, the City took some steps directed to the subject
property. In particular, on August 15, 2013, the City filed
in the State Action a Certification stating that the City
took possession of the subject property on June 4, 2010. Doc.
No. 14-17, City Ex. M. The City also sent letters dated
August 22, 2013 to James' then-attorneys (different
counsel represented James in the First Action and the State
Action) notifying James of the City's sole possession of
the subject property. The letters notified James that she
" no longer has a legal right of possession to the
Property, the Property is not open to the public, and the
Property is not a designated public for[u]m." Doc. No.
29-6, James Opp'n Ex. F; Doc. No. 14-21, City Ex. Q. The
letters further stated that neither James " nor any
other person, is authorized to enter the Property for any
purpose, including the placement of signs. Unauthorized entry
onto the Property shall constitute a violation of Section
708-814, Hawaii Revised Statutes and any personal property
found on the Property shall be removed without notice."
Doc. No. 29-6, James Opp'n Ex. F; Doc. No. 14-21, City
Ex. Q. On September 10, 2013, the City issued tax
reimbursement checks on the subject property to James. Doc.
No. 14-18, City Ex. N.
time the City took these actions, Reynolds was leasing the
subject property from James to operate a recycling redemption
center. See Doc. No. 29-9, Marvin Iseke Decl. ¶
13. Reynolds had previously leased a parcel abutting the
subject property from the City, and had terminated the rental
agreement on June 30, 2013 after the City had sought to
expand the recyclables accepted and Reynolds did not wish to
do so. See Doc. No. 14-2, Diane Murata Decl. ¶
¶ 7-9. On October 1, 2013, the City sent a letter to
Reynolds notifying it of the City's Possession Order and
that the City had not granted Reynolds the right to enter or
use the subject property. Doc. No. 29-5, James Opp'n Ex.
point in October 2013, James placed another three signs on
the subject property, which stated " YOU-TUBE: EMINENT
DOMAIN ABUSE - HAWAII," " EMINENT DOMAIN ABUSE:
WHO'S NEXT?," AND " NO $$$ FOR BUS! GOT $7B FOR
RAIL. MORE BUS PLS." See No. 29-9, Iseke Decl.
¶ 7. These signs were each several feet tall and several
feet wide, and secured into the ground using deep concrete
footings. See Doc. No. 41-1, Brad Kitsu
Decl. ¶ 5; Doc. No. 29-1, James Opp'n Ex. A
October 17, 2013, a Removal Notice for the three signs was
affixed to one of the signs, stating that personal property
stored on public property shall be impounded if not removed
within twenty-four hours. See Doc. No. 41-1, Kitsu
Decl. ¶ 5; Doc. No. 41-2, City Suppl. Ex. A. After the
twenty-four hour period, on October 18, 2013, the City seized
the three signs on the subject property. See Doc.
No. 29-1, James Opp'n Ex. A (photographs of signs being
removed); Doc. No. 29-9, Marvin Iseke Decl. ¶ ¶
5-7. To seize the signs, the City enlisted " about a
dozen county workers" and also had on hand " a
total of six armed policemen." Doc. No. 29-9, Iseke
Decl. ¶ ¶ 5, 8. James was at the subject property
at the time of this seizure, and was provided a copy of the
Storage and Disposal Notice, which stated that her signs have
been impounded and providing the address where they could be
retrieved. Doc. No. 41-1, Kitsu Decl. ¶ 7; Doc. No.
41-3, City Suppl. Ex. B. The City took the signs to Halawa,
which is approximately 1.5 hours away, rather than Laie,
which is only 10 minutes away and where the City had
previously stored the signs seized on May 29, 2013. Doc. No.
29-9, Iseke Decl. ¶ 9. Unlike the signs seized on May
29, 2013, however, James had no difficulties retrieving them
and was allowed to alter the language of the Release Form.
See Doc. No. 42, Pl.'s Suppl. Ex. 1.
October 21, 2013, the City installed a sign in the driveway
of the subject property stating:
PROPERTY NO TRESPASSING VIOLATORS ARE SUBJECT TO CRIMINAL
PROSECUTION CITY AND COUNTY OF HONOLULU
No. 29-9, Iseke Decl. ¶ 11; see also Doc. No.
29-2, James Opp'n Ex. B. As a result of this sign,
Reynolds could not access the subject property and open its
recycling business. Doc. No. 29-9, Iseke Decl. ¶ 13.
October 2013, the City put out to bid the rental of the
parcel abutting the subject property, which the City holds in
fee. Reynolds was awarded the contract and given a revocable
permit from December 15, 2013 to December 15, 2014. Doc. No.
14-2, Murata Decl. ¶ 11.
The First Action
August 13, 2013, James filed her complaint in the First
Action alleging twelve claims titled (1) Violation of Fourth
Amendment; (2) Due Process Violation; (3) First Amendment
Violation; (4) Failure to Train and Supervise; (5) Hawaii
Constitution -- Unreasonable Seizure; (6) Hawaii Constitution
-- Property and Due Process Protections; (7) Hawaii
Constitution -- Freedom of Speech; (8) Trespass; (9)
Conversion; (10) Replevin; (11) Negligence; and (12) Trespass
to Chattels. All of these claims stemmed from the City's
May 29, 2013 seizure and alleged damage of a sign James
placed on the subject property.
parties both filed motions for summary judgment, and while
they were pending, the City returned James' signs that
were removed on May 29, 2013. The August 20, 2014 Order
subsequently issued, denying both parties' motions for
September 11, 2014, the parties entered into a Release,
Indemnification and Settlement Agreement (" Settlement
Agreement" ) whereby the City agreed to
pay James $21 in exchange for release of " any and all
claims, actions, causes of action, claims for relief,
liabilities, demands, damages, injuries, and/or losses that
have been alleged in the Lawsuit." See Doc. No.
14-10, City Ex. F. On September 15, 2014, the court approved
and ordered the parties' Stipulation to Dismiss with