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Kriege v. State of Hawaii Consumer Protection Division

United States District Court, D. Hawaii

March 12, 2018



          Derrick K. Watson, United States District Judge


         Plaintiff Phillip B. Kriege, proceeding pro se, initiated this case on June 17, 2016 against the State of Hawaii Consumer Protection Division ("State") and its employees Gregg N. Morimoto, Michael A. Nuss, and Mark S. Kawata, as well as Iron Horse Towing and its principals Brenda Ortez Parks and Harley Parks ("Iron Horse Defendants"), alleging violations of his federal civil rights, fraud, and breach of the "duty of protection." As best the Court can discern, Kriege asserts that the Iron Horse Defendants wrongfully impounded and took title to his dump truck and that the State, Kawata, Morimoto, and Nuss failed to investigate and/or concealed the wrongful conduct, in concert with the Iron Horse Defendants and other unnamed parties. Morimoto seeks dismissal of all claims against him.[1]Because Kriege fails to allege plausible claims for relief for violations of his federal civil rights or to satisfy the heightened pleading requirement applicable to his fraud-based claims, Morimoto's Motion is GRANTED. Because amendment of the claims may be possible, Kriege is permitted limited leave to amend, with specific instructions below.


         I. Factual Background

         On June 17, 2016, Kriege filed his Complaint, Dkt. No. 1, a Notice of Intent to File Action, Dkt. No. 2, and an Affidavit in support of the Complaint, Dkt. No. 3, which included numerous exhibits. Liberally construed, these initiating documents allege that Iron Horse improperly towed, repaired, stored, and eventually took possession and/or title to Kriege's dump truck, which Kriege values at $80, 000.00. In response to Kriege's complaint against Iron Horse, the State's Regulated Industries Complaints Office investigators Morimoto, Nuss, and/or Kawata, found no violation of law by Iron House, and accordingly, closed its case. Kriege alleges that the State, its employees, and the Iron Horse Defendants, together with unnamed parties, committed fraud and conspired to deprive him of his federal civil rights under color of law, in violation of 42 U.S.C. §§ 1981, 1983, and 1985. See generally Compl. at 1-2. He further alleges that the Iron Horse Defendants committed fraudulent and deceptive business practices. Compl. at 11.

         With respect to Morimoto, the Complaint alleges that he "knowingly file[d] with a supervisor or Public Official a false, untruthful and misleading report[] and determination of findings of fact and conclusion of law that did deprive [Kriege] of his lawfully owned vehicle[, ] [and] knowingly [did so] to collude and conspire with Iron Horse Towing to protect them." Compl. at 7. Morimoto thereby breached a "duty to protect" Kriege from Iron Horse's improper storage and possession of the subject dump truck. Iron Horse did not produce a "binding legal contract, " and Morimoto "was informed of [Iron Horse's] fraud of disclosure in contract. . . [yet] Morimoto failed to protect." Compl. at 16. Kriege concludes, with no additional factual support, "[t]hus, [there was a] total failure to protect and [Morimoto] knowingly filed as truthful fact and deceptive wholly flawed legal determinations and findings." Compl. at 17.

         The Notice of Intent, filed concurrently with the Complaint, includes some factual details regarding the basis for his grievances against the Iron Horse Defendants, which presumably prompted the filing of his complaint with the State agency. Kriege indicates that "Harley Parks fabricated all the towing and storage fees. . . . There are no actual tow fees described or billed on this document. Therefore, the whole tow and the gaining of possession and storage fees are based on contracted or uncontracted repairs they lawfully 'could not' engage in or perform. And [the State] Consumer Protection investigators concealed these facts." Notice of Intent at 3. According to Kriege, Morimoto and other investigators breached their "duty to regulate industry, " and "held predisposed extreme biased opinions and indifference enough so as to conspire secretly and feloniously with [Iron Horse Defendants] to embezzle by Fraud, Deceit, and Deception to steal [Kriege's] lawfully, legally owned Truck." Notice of Intent at 4. Defendants allegedly conspired and colluded with "prior defendants, " including various state court judges, due to "indifference and racism." Notice of Intent at 10.

         Finally, Kriege's Affidavit includes similar allegations against the State investigators, including statements that their "findings and determinations are not factual, have numerous misleading and unfactual statements, as well [as] indicate 'actual knowledge' of past litigation." Aff. in Supp. of Compl. 113. Without further elaboration or factual support, Kriege asserts that "the above named defendants have been paid off. . . . [Iron Horse Defendants] paid for protection to [the State] investigators." Aff. in Supp. of Compl. ¶¶ 17-18.

         II. Morimoto's Motion

          Morimoto seeks dismissal of the claims against him because (1) the pleading documents fail to comply with the applicable Federal Rules of Civil Procedure; (2) Kriege fails to state claims under Sections 1981, 1983, or 1985(3); and (3) any valid claims are nonetheless barred by the applicable statutes of limitations. See Mem. in Supp. at 2, Dkt. No. 80-1. Kriege filed a written opposition to the Motion, Dkt. No. 82, and was afforded the opportunity to present additional arguments at the hearing on March 8, 2018.[2]


         The standard governing a Rule 12(c) motion for judgment on the pleadings is functionally identical to that governing a Rule 12(b)(6) motion. United States ex rel Caffaso v. Gen. Dynamics C4Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). For a Rule 12(c) motion, the allegations of the nonmoving party are accepted as true, while the allegations of the moving party that have been denied are assumed to be false. See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). A court evaluating a Rule 12(c) motion must construe factual allegations in a complaint in the light most favorable to the nonmoving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Under Rule 12(c), "[j]udgment on the pleadings is properly granted when, accepting all factual allegations as true, there is no material fact in dispute, and the moving party is entitled to judgment as a matter of law." Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (quoting Fleming, 581 F.3d at 925); see also Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 937 n.l (9th Cir. 2011).

         Because Kriege is appearing pro se, the Court liberally construes his filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) ("The Supreme Court has instructed the federal courts to liberally construe the 'inartful pleading' of pro se litigants.") (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that "[u]nless it is absolutely clear that no amendment can cure the defect... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).


         As discussed below, even liberally construed, the Complaint and accompanying documents fail to allege any discernable basis for judicial relief against Morimoto. Assuming the truth of the factual allegations in the collective pleading documents, Kriege fails to allege sufficient factual matter to state plausible claims for relief under Sections 1981, 1983, and 1985(3). Nor does he plead plausible causes of action sounding in fraud with the required particularity. Because the allegations fail to satisfy Federal Rules of Civil Procedure 8 and 9(b), the Complaint is dismissed, with leave to amend by no later than April 9, 2018.

         I. The Complaint Fails to State a Claim and Is Dismissed

         The Complaint asserts claims for "fraud and embezzlement; civil rights injury of equal protection; failure of duty to protect; conspiracy to defraud and injury; [and] loss of personal property, " Compl. at 2, and seeks $1, 075, 000.00 in damages, id. at 25. Kriege disagrees with the State investigators' finding that Iron Horse violated no state licensing laws in response to the complaint he filed with the State agency, and refuses to accept the legitimacy of those conclusions. He instead alleges a conspiracy between the State and Iron Horse in violation of his federal civil rights, without any specific factual elaboration supporting the theory. Even given a liberal construction, Kriege's allegations fail to present plausible claims for relief or state with particularity the circumstances constituting fraud. Collectively, the Complaint, Notice of Intent, and Affidavit, ...

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