United States District Court, D. Hawaii
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
COMPLAINT, ECF NO. 11
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
Li Cobian (“Plaintiff”), proceeding pro se, filed
this action against Defendants State of Hawaii Department of
Land and Natural Resources (“DLNR”) Land
Division; Russell Tsuji (“Tsuji”), DLNR
Administrator; and Barry W. Cheung (“Cheung”),
DLNR Land Agent (collectively, “Defendants”),
seeking injunctive relief requiring Defendants to cancel a
revocable use permit issued by the State of Hawaii Board of
Land and Natural Resources (“BLNR”) to Hawaii
Motorsports Association Inc. (“HMA”). Currently
before the court is Defendants' Motion to Dismiss
Plaintiff's Complaint. ECF No. 11. Defendants contend, in
part, that Plaintiff's Complaint fails to assert federal
subject matter jurisdiction. For the reasons discussed below,
the court agrees that Plaintiff has failed to allege federal
subject matter jurisdiction and therefore, GRANTS
Defendant's Motion without leave to amend.
alleged in the Complaint, on March 29, 2010 and pursuant to
Hawaii Revised Statute (“HRS”) § 171-55, the
BLNR issued a revocable permit to HMA to occupy and use a
parcel of state land for motorcycle and trail bike riding.
ECF No. 1, Compl. ¶ III.B; ECF No. 1-4, Pl.'s Ex. 4.
Under this permit, HMA operates the Kahuku Motocross Track
Park (“KMTP”). ECF No. 1, Compl. ¶ III.B.
The Complaint further alleges that HMA “officers and
special ‘insiders'” have violated federal tax
regulations, specifically, 26 C.F.R. §§ 53.4958-0
through 53.4958-8 concerning inurement, excessive private
benefits, and insider business practices as applied to a 26
U.S.C. § 501(c)(7) non-profit entity. ECF No. 1, Compl.
¶¶ II, IV. The Complaint includes additional
allegations that HMA mismanages KMTP and that “comments
and questions by park members regarding mis-management (sic)
and unethical business practices . . . have been received
with non-civil intimidating threats, violent responses,
physical altercations[, and] expulsion from the Park.”
Id. ¶ IV.
effort to obtain “justice for law abiding tax payers
and the community's best interests, ” Plaintiff
seeks injunctive relief directing Defendants to (1) require
that BLNR permittees comply with federal tax regulations, (2)
review HMA's business practices “with regard
to” federal tax regulations, and (3) revoke HMA's
permit for non-compliance. Id. ¶¶ II.,
III.A., III.B. Stated differently, by this action, Plaintiff
seeks to require that “the Landlord (Defendant[s])
makes a reasonable responsible effort and attempt to ensure
that future entities (Permittees) acquiring such
‘Revocable Permits' manage the park with
accountability and civil professionalism” so that the
“Park is a benefit to the Community” and is not
operated in manner that “privately benefit[s] a select
few through intimidation and threats.” Id.
filed his Complaint on August 3, 2016. ECF No. 1. On
September 6, 2016, Defendants filed the instant Motion. ECF
No. 11. Plaintiff filed his Objection on October 7, 2016, ECF
No. 17, and on October 17, 2016, Defendants filed their
Reply, ECF No. 18.
STANDARDS OF REVIEW
Rule of Civil Procedure 12(b)(1) authorizes a court to
dismiss claims over which it lacks proper subject matter
jurisdiction. The court may determine jurisdiction on a
motion to dismiss for lack of jurisdiction under Rule
12(b)(1) so long as “the jurisdictional issue is [not]
inextricable from the merits of a case.” Kingman
Reef Atoll Invs., L.L.C. v. United States, 541 F.3d
1189, 1195 (9th Cir. 2008).
moving party “should prevail [on a motion to dismiss]
only if the material jurisdictional facts are not in dispute
and the moving party is entitled to prevail as a matter of
law.” Casumpang v. Int'l Longshoremen's
& Warehousemen's Union, 269 F.3d 1042, 1060-61
(9th Cir. 2001) (citation and quotation marks omitted);
Tosco Corp. v. Cmtys. for a Better Env't, 236
F.3d 495, 499 (9th Cir. 2001).
Rule 12(b)(1) jurisdictional attack may be facial or
factual.” Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the
court may dismiss a complaint when its allegations are
insufficient to confer subject matter jurisdiction. When the
allegations of a complaint are examined to determine whether
they are sufficient 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 African Am. Contractors v. City of
Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). In such a
facial attack on jurisdiction, the court ...