United States District Court, D. Hawaii
ORDER GRANTING THE HAWAII FAMILY COURT'S, EDWARD
SMITH'S, AND ROBERT KIM'S MOTIONS TO DISMISS AND
DENYING MOTION FOR A TRIAL DATE
Oki Mollway United States District Judge
Delroy Pengelly (“Delroy”),  proceeding pro
se, has filed a Complaint alleging that two of his attorneys,
his estranged wife, her attorney, and a Hawaii Family Court
violated his Fifth and Fourteenth Amendment rights and
various Hawaii statutes. The allegations focus on conduct
that occurred during Family Court proceedings between Delroy
and his wife. Before this court are several Defendants'
motions to dismiss, arguing that the court lacks subject
matter jurisdiction or, alternatively, that the Complaint
fails to state a claim upon which relief can be granted. The
court grants the motions filed by the Hawaii Family Court,
Edward Smith, and Robert Kim. The court decides the motions
without a hearing pursuant to Local Rule 7.2(d). A hearing on
Defendant Ernie Gianotti's Motion remains scheduled for
9:00 a.m. on November 27, 2017. The court also denies as
unnecessary Plaintiff's Motion for a Trial Date.
names as Defendants his estranged wife, Margarita Pengelly
(“Margarita”); her attorney, Robert Kim; two of
Delroy's previous attorneys, Edward Smith and Ernie
Gianotti; and the State of Hawaii Family Court of the Third
Circuit (“Hawaii Family Court”). ECF 1, PageID #
1. No other party is labeled a “Defendant” in the
caption or the body of the Complaint. See id.,
PageID # 1-2. The Complaint does note that the Hawaii Family
Court acted “at all times . . . through its agents:
Judge Aley K. Auna Jr. and court employees.”
Id. The Complaint's allegations describe conduct
by Judge Auna, but not conduct by any other court employees.
Accordingly, the court construes the Complaint as naming
Judge Auna--and only Judge Auna--as an additional
Order addresses motions by two of the three attorneys, the
Hawaii Family Court, and Judge Auna. See ECF 7,
PageID # 25 (Robert Kim); ECF 11, PageID # 43 (Hawaii Family
Court and Judge Auna); ECF 20, PageID # 83 (Edward Smith).
All of these Defendants' motions to dismiss were set for
hearing on October 3, 2017, see ECF 25, while the
third attorney, Gianotti, filed a motion to dismiss that
remains scheduled for a hearing at 9:00 a.m. on November 27,
2017, see ECF 27; ECF 28. The present Order,
consequently, does not resolve Gianotti's Motion.
Margarita has filed an Answer but no motion to dismiss.
See ECF 14, PageID # 61-62.
filed a “Motion for a Trial Date” on October 3,
2017. See ECF 30, PageID # 132.
Allegations in the Complaint.
is a United States citizen who resides in Kailua Kona,
Hawaii. ECF 1, PageID # 2. On September 12, 2015, Delroy
married Margarita Pengelly, a Russian citizen, who, according
to Delroy, “schemed and plotted” to marry Delroy
for the “sole purpose” of obtaining a green card.
Id. The two have a young child. Id.
received her green card around May 29, 2016, and began
planning a trip to Dubai for herself, Delroy, and their
child. Id., PageID # 4. Margarita bought tickets for
flights on July 15, 2016. Id., PageID # 4-5. Delroy
started to worry that, once in Dubai, Margarita would divorce
him and abscond with their child. Id. The day before
the family was scheduled to leave, Delroy “removed and
secured” the child's passport, went to work, and
phoned Margarita to express his fears. Id., PageID #
5. At 6 p.m., Margarita texted Delroy to ask where the
passport was. Id. It is unclear whether Delroy
responded. See Id. At 11:50 p.m., Delroy returned
home from work and found the house empty. Id. Delroy
contacted the local police, the FBI, the State Department,
and the National Center for Missing and Exploited Children to
report that his wife and child were missing. Id.
next day, unable to board the flight to Dubai, Margarita and
the child went to the Hawaii Family Court to request a
temporary restraining order (“TRO”) against
Delroy. Id. On the application, Margarita accused
Delroy of being “emotionally and psychologically
violent” and “threaten[ing] to kill her.”
Id. Delroy calls these “false
statements.” Id. At some point, Margarita
allegedly “lied [to] and deceived the Child and Family
Services for Domestic Abuse Shelter” by claiming that
Delroy had abused her, and telephoned Delroy's sister in
an alleged attempt to elicit false statements to the effect
that Delroy “was an abusive person and
ex-husband.” Id., PageID # 5-6.
TRO hearing, Margarita allegedly “provided four false
witnesses to testify” against Delroy. Id.,
PageID # 3. It is not clear who the witnesses were. See
Id. Delroy complains that his attorney, Ernie Gianotti,
failed to “show a willingness to work on [Delroy's]
behalf” and “refus[ed] to effectively cross
examine” the witnesses. Id. Judge Aley K. Auna
Jr. granted the TRO. See id.
filed for divorce on July 29, 2016, and for annulment on
November 1, 2016. Id., PageID # 3. Margarita,
through her attorney, Robert Kim, filed for divorce on August
10, 2016. Id.
describes Judge Auna as having demonstrated
“bias” towards Delroy during the various
proceedings. Id., PageID # 6. Judge Auna allegedly
“ignored evidence prejudicial to the favored party,
” made “one[-]sided comments, ” and
“granted approximately 99% of the motions in favor of
Margarita.” Id. Margarita had, for example,
allegedly violated the TRO “on four separate occasions,
” including by approaching “within one
f[oo]t” of Delroy's car and by being “present
when [Delroy] picked up and dropped off” their child at
a playground. Id. When Judge Auna was informed of
Margarita's four violations, he allegedly dismissed them
as “nothing of great importance.” Id.
Then, on August 22, 2016, Judge Auna allegedly
“enforced” the TRO and “charged Delroy with
domestic violence, ” “even [though] there was no
evidence of abuse and while ignor[ing] [Delroy's]
evidence.” Id., PageID # 3. According to
Delroy, Judge Auna also “stated in court that he
w[ould] prevent Delroy . . . from having any contact”
with the child until Delroy attended a domestic violence
program, “[t]hereby misusing the legal system.”
Smith represented Delroy in some of these proceedings but,
like the attorney before him, allegedly failed to “show
a willingness to work” on Delroy's behalf.
Id., PageID # 4. Delroy claims that Smith said at
the time he was hired that he would file an appeal and take
other actions in the case, but, as of June 12, 2017, had not
done so. Id., PageID # 4. On June 12, 2017, Delroy
sent an email that “terminated [his and Smith's]
legal relationship, ” but on June 16, 2017, Judge Auna
“denied Attorney Smith's Motion to Withdraw as
Coun[sel]” and Smith “continue[d] working on
[the] case.” Id.
Kim, representing Margarita, was allegedly “the
‘kingpin' of [a] collusive effort to deplete
Delroy[‘s] . . . income and assets.”
Id., PageID # 6. Delroy says that Kim filed
documents with the Family Court to have Delroy's income
garnished, and, soon thereafter, Delroy faced “orders
for payments to various entities.” Id., PageID
# 3, 6.
Theories of Liability.
Complaint asserts four claims for relief against “the
Defendants, ” ECF 1, PageID # 7-11, by which Delroy
apparently means all Defendants. First, Defendants
violated Delroy's Fifth and Fourteenth Amendment rights
by depriving him of income and his emotional bond with
his child without due process of law.
Id., PageID # 8. Second, Defendants were part of a
civil conspiracy to deprive Delroy of his assets.
Id., PageID # 9. Third, Defendants “engage[d]
in overt acts [of] fraud” while using the legal system
to further their conspiracy. Id., PageID # 9-10.
Fourth, Defendants intentionally inflicted emotional distress
on Delroy. Id., PageID # 10-11. The Complaint seeks
more than $75, 000 per claim in damages. Id., PageID
remainder of this Order uses the term
“Defendants” to refer only to those Defendants
whose motions to dismiss are before this court in the present
Order: Robert Kim, Edward Smith, the Hawaii Family Court, and
have moved to dismiss the Complaint under Rule 12(b)(1) or,
in the alternative, Rule 12(b)(6) of the Federal Rules of
part, Delroy has filed a “Motion for a Trial Date,
” which requests that a trial date be set and also
argues that Defendants' motions are without merit.
See ECF 30, PageID # 133. Delroy attached as an
exhibit a Hawaii Family Court document indicating that Judge
Auna had recused himself from Delroy's Family Court
proceedings on July 13, 2017. ECF 30-2, PageID # 143.
STANDARD UNDER RULES 12(b)(1) AND 12(b)(6).
12(b)(1) authorizes a court to dismiss claims over which it
lacks subject matter jurisdiction. An attack on subject
matter jurisdiction “may be facial or factual.”
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004). A facial attack asserts that “the
allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.”
Id. A factual attack, on the other hand,
“disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
bring facial attacks. When the moving party makes a facial
challenge, the court's inquiry is “confin[ed] . . .
to allegations in the complaint.” Savage v.
Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir.
2003). Those allegations are taken by the court as true.
Courthouse News Serv. v. Planet, 750 F.3d 776, 780
(9th Cir. 2014).
alternatively move under Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Dismissal under Rule 12(b)(6) may be
based on either: (1) lack of a cognizable legal theory, or
(2) insufficient facts under a cognizable legal theory.
Balistreri v. Pacifica Police Dept., 901 F.2d 696,
699 (9th Cir. ...