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Pule v. Macomber

United States District Court, D. Hawaii

January 2, 2018



          Derrick R. Watson United States District Judge.

         Before the Court is Defendants' Motion to Dismiss the Third Amended Complaint Filed May 26, 2017 (“MTD”). Dkt. No. 22. The Court GRANTS the MTD as to Counts III, IV and V to the extent these counts intended to assert independent tort claims against Defendants. The allegations underlying these counts may nonetheless form the basis of the declaratory and/or injunctive relief sought elsewhere by Plaintiffs. The MTD is DENIED in all other respects for the reasons that follow.


         This lawsuit arises out of a 2013 dispute over the election of officers at Kahikolu Congressional Church (“Church” or “Kahikolu”), located in Kona, Hawai‘i.

         Factual Background-Church Governance

         Charmayne Pule, Dolly Andrade (“Dolly”), and Donna Falemalu (collectively “Plaintiffs”) allege that during an Annual General Membership Meeting on or about March 24, 2013, they were elected as officers of the Church- Moderator, Vice-Moderator, and Secretary, respectively-pursuant to the Kahikolu Congressional Church By-Laws. Third Am. Compl. ¶ 11; Dkt. No. 18 [hereinafter TAC]; see Valencia Decl. in Supp. of Pls.' Opp'n to MTD, Ex. B [2009 By-Laws], Dkt. No. 25-3. Plaintiffs were “formally installed in their offices” for two-year terms on April 7, 2013. TAC ¶ 11; see 2009 By-Laws, Art. VII (“The officers of Kahikolu Congressional Church . . . . shall serve terms of two years consecutively.”). Plaintiffs' two-year terms would have expired on April 7, 2015, but on February 28, 2015, at a “Special Meeting” Plaintiffs called themselves, they assert that the congregation amended the 2009 By-Laws in order to “extend the terms of the Officers until a specific time period after the final resolution of this litigation.” TAC ¶¶ 11, 16; Valencia Decl., Ex. C [2015 By-Laws], Dkt. No. 25-4.

         Bobby L. Macomber, Darryl Grace Sr., Donovan Cho, Herman Kihe, Travis Leinonen, Thomas Pua, Sarona Kawaauhau, Leona Grace, Betty Andrade, Edward Kawaauhau, Joseph Kihe, Thelma Macomber, Rebecca Leinonen, and Roberta Cho (collectively “Defendants”) belong to an alleged faction within the congregation who claim that none of those individuals elected in April 2013 continue to hold positions as officers of the Church at this time. Reply in Supp. of MTD at 13, Dkt. No. 26. According to Defendants, Falemalu resigned from her position on September 11, 2013, [1] and Pule and Dolly were removed from office during a Special Meeting on October 13, 2013.[2] Decl. of Counsel in Supp. of MTD, Ex. 1-A [Alan Andrade Decl.] ¶ 8, Dkt. No. 22-3 at 6 (“[Plaintiffs] have not been re-elected by the Church congregation and their term expired on April 2015.”). Defendants do not recognize the 2015 By-Laws “because they were created and allegedly enacted while the Church was under an administrative freeze by the Department of Commerce and Consumer Affairs [‘DCCA'], ”[3] which Plaintiffs “initiated” sometime after they were terminated as officers on October 13, 2013.[4] Alan Andrade Decl. ¶¶ 8-10.

         At their first General Membership Meeting as Church officers on April 21, 2013, a “surprise” motion was made from the floor to elect Defendant Bobby Macomber (“Macomber”) as the new “Pastor” or “Kahu” of the Church. Kahikolu had been without a full-time pastor since approximately August 26, 2012. TAC ¶¶ 18, 23-27. Plaintiffs complain that the subsequent hand-vote taken in Macomber's presence violated procedures set forth in the 2009 By-Laws.[5] Plaintiffs also claim that they were not yet “sufficiently knowledgeable” to recognize the April 21, 2013 election error in time to prevent it. TAC ¶ 27; Valencia Decl., Ex. E at 10-26 [Dolly Decl.] ¶ 12, Dkt. No. 25-6 at 12 (“[B]ecause this was the first meeting of the Plaintiffs as Officers, and because it was a surprise Motion from the floor, we neglected to check the By-Laws regarding the ‘calling' of a Kahu.”). Plaintiffs aver that they “have made a consistent and continuing good faith effort” to “correct their error” in the intervening years. TAC ¶ 28; e.g., Falemalu Decl. ¶ 16(d) (recounting a Special Meeting on November 17, 2013, properly noticed and called, at which “the Congregation discussed . . . Macomber and then voted 37 to 0 (by secret ballot) to remove [him] [as Kahu] and sever all of Kahikolu's ties with him”), Dkt. No. 25-6 at 32-33. But Defendants claim that any procedural deficiencies in Macomber's 2013 election have since been cured, and that Macomber is officially the Church's current Kahu.[6] See Mem. in Supp. of MTD at 4-5, Dkt. No. 22-1 (citing Decl. of Counsel, Exs. 1-A [Alan Andrade Decl.], 1-I [Leona Grace Decl.], 1-M [Travis Leinonen Decl.])).[7]

         Plaintiffs allege that Macomber's actions “with the approval of the other Defendants” in the wake of the April 21, 2013 General Membership Meeting were contrary to the 2009 By-Laws and longstanding Church customs and practices.[8]For example, Defendants allegedly changed Church policies on scheduling meetings and making church-wide announcements from the pulpit. TAC ¶¶ 31- 32.[9] Plaintiffs also assert that despite a provision in the 2009 By-Laws that “[a]ll projects shall be approved by the congregation, ” and that any “[c]ontracts shall be sent to the Financial committee prior to release [of payment] to ensure that sufficient funds are available” (2009 By-Laws, Art. IX, Dkt. No. 25-3), Macomber unilaterally revised building plans for a Tsunami Restoration Project and dispersed funds in conjunction with that project without any approval (TAC ¶¶ 22-40, 43- 44, 46). Moreover, the state court concluded that, as a matter of law, “Plaintiffs will likely prevail on the merits and will be able to prove that the purported Special Meeting on October 13, 2013 was invalid, ” so Plaintiffs assert that their elected positions were never rescinded. See FOF/COLs at COL 4.

         Plaintiffs also argue that Defendants conspired with the Kona Police to intimidate Plaintiffs and dissuade them from resisting Macomber as the Church Kahu. TAC ¶ 56. For example, on November 14, 2013, Dolly allegedly received a call from Kona Police Officer Darren Cho, who is a relative of Church member (and a Macomber follower) Donovan Cho, and who is close friends with other Macomber “followers.” TAC ¶ 58. At Officer Cho's request, Dolly drove to the police station to discuss a court hearing scheduled for the next day regarding an assault-and-battery Dolly suffered at the hands of a Macomber follower in the Church parking lot on October 27, 2013. TAC ¶¶ 53-55, 57. But before meeting with Officer Cho, Dolly allegedly spoke to the Chief of the Kona Police, who indicated that he was aware of and “wanted to discuss” the written invitation that had gone out regarding the planned November 15, 2013 meeting. TAC ¶ 59. And rather than discussing the upcoming hearing as he had represented, Dolly alleges that Officer Cho questioned her “about the scheduled meeting the next night . . . (which he said would be ‘Trespassing'), and [that Officer Cho] tried to get [Dolly] to cancel or reschedule that meeting” at another location. TAC ¶¶ 60, 61 (“Officer Cho indicated that he believed that none of the Plaintiffs had any right to enter . . . Church property[.]”).

         Dolly therefore showed Officer Cho various pieces of evidence demonstrating Plaintiffs' elected status as Church officers, including the 2009 By-Laws, a copy of DCCA records listing the Church's principal officers, and a copy of the minutes from the March 24, 2013 meeting at which they were elected. TAC ¶ 63. “Officer Cho and/or the Kona Police made and kept copies” of these documents (TAC ¶ 64), yet “when Defendant Darryl Grace Sr. reported to the Kona Police on the evening of November 15, 2013 that ‘someone had entered into the Kahikolu grounds without permission, '” uniformed police officers, including Officer Cho, “went to the Kahikolu property, disrupted the Plaintiffs' meeting regarding Kahikolu Church matters, and interrogated various Members of the Congregation about what the Police described as a trespass onto Kahikolu property” (TAC ¶ 66). See TAC ¶¶ 67 (alleging that “Officer Cho and/or the Police Chief and/or the Kona Police” also arranged for the Big Island SWAT Team to be in the area that evening “to support Officer Cho and [other] the Policemen”), 73 (noting that “one of the Congregation Members, who had been invited to attend . . . was actually charged by the County with Criminal Trespass” arising out of this incident), 105 (same).

         Since late 2013, Plaintiffs allege that Defendants' intimidating actions have prevented them from performing their governance duties as Church officers and from visiting the Church and its grounds.[10] Indeed, Plaintiffs argue that “the ability of Defendants to call and have Police come and interrogate Plaintiffs . . . about criminal trespass” on November 15 and 17, 2013 has “made the Plaintiffs and the Congregation fearful to even come to and/or use Kahikolu Church and its facilities.” TAC ¶¶ 75, 85, 86(a)-(d), 96; accord Dolly Decl. ¶¶ 49, 63, Dkt. No. 25-6 at 21, 24.

         Procedural Background

         Plaintiffs filed their initial Complaint on February 10, 2014 in the Circuit Court of the Third Circuit, State of Hawai‘i. One of the many pre-trial motions that the Circuit Court adjudicated prior to removal was Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, which the Circuit Court heard on October 3, 2016 and denied after finding genuine issues of material fact precluding summary judgment (see Reply, Ex. A [Tr. of Proceedings (Oct. 3, 2016), Civil 14-1-063K] at 24, Dkt. No. 26-2). In its order on the motion, the Circuit Court ordered Plaintiffs “to name as a party or parties the law enforcement officer(s) Plaintiffs contend are liable for violation of and/or conspiracy to violate 42 U.S.C. section 1983.” Valencia Decl., Ex. A [Order Denying State Court MSJ] at ¶ 3, Dkt. No. 25-2 at 2. As a result, Plaintiffs filed an “Ex Parte Motion for Order Identifying Darren Cho and Porter Devries as John Does 9 and 10 and the County of Hawaii as Doe Governmental Unit 1” in Circuit Court on March 17, 2017. See Civil 14-1-063K, Dkt. No. 304.

         Citing federal question jurisdiction, the new defendants filed their Notice of Removal (Dkt. No. 1) on April 27, 2017. But on May 26, 2017, Plaintiffs filed a Notice of Partial Dismissal of the Second Amended Complaint Against Defendants Clifford Medeiros, Jadelyn Medeiros, Darren Cho, J. Porter Devries, and the County of Hawaii (see Dkt. No. 17), which eliminated all government-affiliated defendants previously named in the matter before the instant, federal court. The same day, Plaintiffs also filed their TAC (Dkt. No. 18) asserting seven causes of action against the remaining Defendants, including: Declaratory Relief (Count I; TAC ¶¶ 98-99); Violation of 42 U.S.C. Section 1983 (Count II; TAC ¶¶ 101-13); Intentional and/or Negligent Interference with the Right of Peaceable Worship (Count III; TAC ¶¶ 114-118); Intentional and/or Negligent Interference with the Right to Visit Ancestral Grave Sites, and to Enjoy the Benefits and Honor as Elected Official (Count IV; TAC ¶¶ 119-23); Intentional and/or Negligent Interference with Plaintiffs' Ability to Fulfill Duties and Obligations to Church as Officers and Enjoy Benefits and Honor as Elected Officers (Count V; TAC ¶¶ 124-28); Conversion and/or Misappropriation of Insurance Proceeds (Count VI; TAC ¶¶ 129-36); and Civil Conspiracy (Count VII; TAC ¶¶ 137-42).

         Defendants filed their Motion to Dismiss the TAC on June 19, 2017, arguing that: the case is nonjusticiable because it involves church governance; the TAC omits indispensable parties and contains no “government actor” defendants to support Counts II and III; Plaintiffs have no standing to assert Count VI; the TAC contains insufficient facts to support Counts I, IV, V, VI, and VII; Plaintiffs failed to plead the elements of Counts III, IV, and V; and that Counts III and IV are not actionable in the State of Hawai‘i. See Mem. in Supp. of MTD, Dkt. No. 22-1. Plaintiffs opposed the MTD on July 27, 2017 (Dkt. No. 25); and Defendants filed their Reply in support of the MTD on August 3, 2017 (Dkt. No. 26). The Court heard oral arguments on August 17, 2017 and took matters under advisement.

         After providing the parties with an ultimately unsuccessful opportunity to resolve this matter without further litigation, the Court now GRANTS the MTD as to Counts III, IV, and V, and DENIES the MTD as to Counts I, II, VI, and VII, for the following reasons.[11]


         Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

         A motion to dismiss under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) challenges a complaint's compliance with the pleading requirements provided by the Federal Rules.

         The Court may dismiss a complaint pursuant to FRCP 12(b)(6) for “failure to state a claim upon which relief can be granted” when there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged.” UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, plaintiffs are required to allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the Court to infer “the mere possibility of misconduct” do not constitute a short and plain statement of the claim showing that the pleader is entitled to relief as required by FRCP Rule 8(a)(2). Id. at 677, 679 (explaining that Rule 8 “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).

         For purposes of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. See Iqbal, 556 U.S. at 678 (explaining that the construed-as-true/light-most-favorable tenet “is inapplicable to legal conclusions”); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Nat'l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000); In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996); Twombly, 550 U.S. at 555 (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . ., a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” (internal citations omitted)). Moreover, the court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell, 266 F.3d at 988.

         Leave to Amend

         Under Rule 15(a) of the FRCP, leave to amend a party's pleading “should [be] freely give[n] . . . when justice so requires.” FRCP 15(a)(2); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (explaining that “the underlying purpose of [FRCP] Rule 15 . . . [is] to facilitate decision on the merits, rather than on the pleadings or technicalities”) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). “[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962); Erlich v. Glasner, 352 F.2d 119, 122 (9th Cir. 1965)); Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (“Dismissal without leave to amend is improper unless it is clear that the complaint ‘could not be saved by any amendment.'”) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001)) (citing Chappel v. Lab. Corp. of Am., 232 F.3d 719, 726 (9th Cir. 2000)). Leave to amend may also be denied for “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Mayes v. Leipziger, 729 F.2d 605, 608 (9th Cir. 1984) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).


         I. Plaintiffs May Proceed In Federal Court Despite The Absence Of Local Government Defendants.

         In their first argument, Defendants state that the TAC lacks parties that the State court found to be “indispensable” during its October 3, 2016 hearing on the State Court MSJ prior to removal. Mem. in Supp. at 8-10, Dkt. No. 22-1. Without the indispensable parties-here, Officer Cho and the County (collectively “Government Defendants”)-Defendants insist that the case cannot proceed and must be dismissed. Id. Plaintiffs respond that they are not required to name the Government Defendants, notwithstanding allegations of a conspiracy involving the Kona police, under federal law set forth in Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). See Reply at 12-13, Dkt. No. 26.

         Plaintiffs have not offended the state court's order by maintaining their claims only against private individuals.[12] Order Denying State Court MSJ at ¶¶ 1- 3, Dkt. No. 25-2. Plaintiffs did not forum shop by following the state court's order below and joining the Government Defendants. Indeed, Plaintiffs were not responsible for removal (see Notice of Removal, Dkt. No. 1), and federal law controls.[13]

         Under Section 1983, a plaintiff must prove (1) that the defendant has deprived the plaintiff of a right secured by the “Constitution and laws” of the United States, and (2) that the defendant so deprived the plaintiff “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, ” or, in other words, that the “defendant acted ‘under color of law.'” Adickes, 398 U.S. at 150 (citing Monroe v. Pape, 365 U.S. 167, 184, 187 (1961); United States v. Price, 383 U.S. 787, 793, 794 (1966)). Here, Defendants argue that the Government Defendants are necessary in order to demonstrate action “under color of law.” But in Adickes v. S.H. Kress & Co., the Supreme Court held that “a private party involved in . . . a conspiracy [to violate an individual's constitutional rights], even though not an official of the State, can be liable under § 1983.” 398 U.S. at 152.[14]

         In that case, a white schoolteacher was first refused service in a private restaurant she visited accompanied by several of her black students and then later arrested for vagrancy. Adickes, 398 U.S. 144. The teacher sued the restaurant under Section 1983, alleging that its refusal to serve her and the vagrancy arrest were products of a conspiracy between a private individual (restaurant/Kress) and a governmental entity (local police) to deprive her of the right to equal treatment in a place of public accommodation. Id. at 147-48. Despite the absence of governmental defendants, the United States Supreme Court reversed summary judgment against the teacher. In allowing the private party suit to proceed, the Court explained that the teacher-plaintiff would be entitled to relief under Section 1983 if she could prove that an employee of the private restaurant-defendant and a local police officer “somehow reached an understanding” to deny her service in the restaurant or to cause her arrest on impermissible grounds. Id. at 152. If such a showing were made, then “[t]he involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's [constitutional] rights, whether or not the actions of the police were officially authorized or lawful.” Id. Accordingly, “[t]hat the state official[s] [are] no longer in the suit . . . is no defense” to the claims in the TAC. Howerton v. Gabica, 708 F.2d 380, 383 n.6 (9th Cir. 1983) (citing Dennis v. Sparks, 449 U.S. 24, 28 n.4 (1980); Adickes, 398 U.S. at 152); Johnson v. B.H. Liquidation Corp., 1992 WL 79297, at *1 (9th Cir. Apr. 21, 1992) (affirming dismissal of municipal defendants from action under § 1983 but reversing dismissal of private-defendant repossessor and remanding because plaintiff alleged sufficient facts about the private defendant's actions “to clothe the repossession with state sanction”).

         In sum, Plaintiffs correctly state that they can proceed in federal court on their Section 1983 claims, consistent with A ...

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