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James v. City & County of Honolulu

United States District Court, D. Hawai'i

August 26, 2015

CHOON JAMES, Plaintiff,
CITY AND COUNTY OF HONOLULU; and John Does 1-50 in their individual or official capacity, Defendants

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          Choon James,, Plaintiff, Pro se, Laie, HI.

         For City and County of Honolulu, Defendant: Nicolette Winter, Office of Corporation Counsel-Honolulu, Honolulu, HI; Paul S. Aoki, Department of Corporation Counsel, Honolulu, Hi.

         For City and County of Honolulu, Counter Claimant: Paul S. Aoki, Department of Corporation Counsel, Honolulu, Hi.

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         J. Michael Seabright, United States District Judge.


         This is 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.

         In the 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

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James. The City has counter-claimed for breach of settlement agreement.

         Currently 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.


         A. Factual Background

         Most of 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.

         1. Facts Leading Up to Filing of First Action

         The relevant facts, as described in court's August 20, 2014 Order in the First Action, include the following:[1]

         On 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.

         On 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."

         After 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

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2014, these funds were deleted from the versions of the Capital Budget adopted by the City.

         To 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 Action.

         2. Facts Occurring After Filing of First Action

         After 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.

         At the 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. E.

         At some 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

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Decl. ¶ 5; Doc. No. 29-1, James Opp'n Ex. A (photographs).

         On 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.

         On October 21, 2013, the City installed a sign in the driveway of the subject property stating:


         Doc. 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.

         Also in 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.

         B. Procedural History

         1. The First Action

         On 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.

         The 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 summary judgment.

         On September 11, 2014, the parties entered into a Release, Indemnification and Settlement Agreement (" Settlement Agreement" ) whereby the City agreed to

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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 ...

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