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Pengelly v. State

United States District Court, D. Hawaii

October 18, 2017

DELROY PENGELLY, Plaintiff,
v.
STATE OF HAWAII, FAMILY COURT OF THE THIRD CIRCUIT; MARGARITA PENGELLY AND OBO MINOR CHILD; EDWARD J.S.F. SMITH; ERNIE F. GIANOTTI; ROBERT D.S. KIM, Defendants.

          ORDER GRANTING THE HAWAII FAMILY COURT'S, EDWARD SMITH'S, AND ROBERT KIM'S MOTIONS TO DISMISS AND DENYING MOTION FOR A TRIAL DATE

          Susan Oki Mollway United States District Judge

         I. INTRODUCTION.

         Plaintiff Delroy Pengelly (“Delroy”), [1] 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.

         II. BACKGROUND.

         Delroy 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 Defendant.[2]

         This 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.

         Delroy filed a “Motion for a Trial Date” on October 3, 2017. See ECF 30, PageID # 132.

         A. Allegations in the Complaint.

         Delroy 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.

         Margarita 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.

         The 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.

         At the 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.

         Delroy 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.

         Delroy 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.” Id.

         Edward 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.

         Robert 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.

         B. Theories of Liability.

         The Complaint asserts four claims for relief against “the Defendants, ” ECF 1, PageID # 7-11, by which Delroy apparently means all Defendants.[3] 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 # 7-11.

         C. Subsequent Filings.

         The 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 Judge Auna.

         Defendants have moved to dismiss the Complaint under Rule 12(b)(1) or, in the alternative, Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         For his 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.

         III. STANDARD UNDER RULES 12(b)(1) AND 12(b)(6).

         A. Rule 12(b)(1).

         Rule 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 jurisdiction.” Id.

         Defendants 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).

         B. Rule 12(b)(6).

         Defendants 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. ...


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