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Pengelly v. State

United States District Court, D. Hawaii

November 20, 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 DEFENDANT ERNIE GIANOTTI'S MOTION TO DISMISS

          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 former attorneys, his estranged wife, her attorney, and a Hawaii Family Court violated his Fifth and Fourteenth Amendment rights and various Hawaii statutes. Before the court is a motion to dismiss by one of Delroy's former attorneys, Ernie Gianotti. The court grants Gianotti's motion as to thed federal claims, and declines to exercise supplemental jurisdiction over the remaining state-law claims. The court decides the motion without a hearing pursuant to Local Rule 7.2(d).

         II. BACKGROUND.

         In the Complaint, Delroy names as Defendants his estranged wife, Margarita Pengelly; her attorney, Robert Kim; two of Delroy's previous attorneys, Edward Smith and Ernie Gianotti; Hawaii Family Court Judge Aley K. Auna Jr.; and the State of Hawaii Family Court of the Third Circuit (“Hawaii Family Court”). ECF 1, PageID # 1.

         In an order on October 18, 2017, this court granted motions to dismiss made by Defendants Kim, Smith, Judge Auna, and the Hawaii Family Court. See ECF 31. Much of what is stated in that order applies here, and to that extent the prior order is incorporated here, supplemented by the present discussion relating particularly to Gianotti.

         In a filing on November 17, 2017, Delroy stated that he is appealing the October 18, 2017 order, see ECF 34, but, as the court explains below, the order appealed from is nonfinal, and not yet appealable. Any appeal therefore does not divest this court of jurisdiction.

         A. Allegations Regarding Gianotti.

         According to the Complaint, on July 15, 2016, Margarita Pengelly went to the Hawaii Family Court to request a temporary restraining order (“TRO”) against Delroy. ECF 1, PageID #s 3, 5. At the TRO hearing, Margarita allegedly “provided four false witnesses to testify” against Delroy. Id. at PageID # 3. It is not clear who the witnesses were. See Id. During the proceeding, Delroy's attorney, Ernie Gianotti, allegedly 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. There are no further factual allegations relating to Gianotti. See id.

         The Complaint asserts four claims for relief against “the Defendants, ” id. at PageID #s 7-11, by which Delroy apparently means all Defendants, including Gianotti.[2] 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. at PageID # 8. Second, Defendants were part of a civil conspiracy to deprive Delroy of his assets. Id. at PageID # 9. Third, Defendants “engage[d] in overt acts [of] fraud” while using the legal system to further their conspiracy. Id. at PageID #s 9-10. Fourth, Defendants intentionally inflicted emotional distress on Delroy. Id. at PageID #s 10-11. The Complaint seeks more than $75, 000 per claim in damages. Id. at PageID #s 7-11.

         The court construes the federal claims in the Complaint as proceeding under 42 U.S.C. § 1983, for the same reasons expressed in its order on October 18, 2017. See ECF 31. The court has discretion to exercise supplemental jurisdiction over the state-law claims. See 28 U.S.C. § 1367.

         B. Gianotti's Filings.

         Gianotti moved to dismiss on September 20, 2017. ECF 27. His motion incorporated by reference a scheduling conference statement filed on August 14, 2017. See ECF 24. In both filings, Gianotti argued that the Complaint should be dismissed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See ECF 24, PageID #s 121-22; ECF 27, PageID # 127.

         III. STANDARD UNDER RULES ...


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