United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT ERNIE GIANOTTI'S MOTION
OKI MOLLWAY, UNITED STATES DISTRICT JUDGE.
Delroy Pengelly (“Delroy”),  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
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.
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.
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.
Allegations Regarding Gianotti.
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.
Complaint asserts four claims for relief against “the
Defendants, ” id. at PageID #s 7-11, by which
Delroy apparently means all Defendants, including
Gianotti. 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.
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.
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.
STANDARD UNDER RULES ...