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Tong v. Tom

United States District Court, D. Hawaii

May 14, 2018

SEAN CHEUNG TONG, Trustee of the unrecorded Kumukumu Trust dated January 1, 2015, Plaintiff,
v.
RONALD W.S. TOM; CITY AND COUNTY OF HONOLULU, et al., Defendants.

          ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S FRCP RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED VERIFIED COMPLAINT FILED ON FEBRUARY 26, 2018, ECF NO. 25

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The City and County of Honolulu (the “City”) moves to dismiss Plaintiff Sean Cheung Tong's (“Plaintiff” or “Tong”) Second Amended Complaint (“SAC”) for: 1) failure to state a valid claim under Monell v. Department of Social Services, 436 U.S. 658, 690 (1978); 2) alleging a violation of the Hawaii State Constitution when no such claim exists; and 3) claiming that the City conspired with Ronald Tom, without alleging any facts supporting a conspiracy. Because the court finds that Tong's SAC fails to state a claim against the City, the Motion is GRANTED, with leave to amend.

         II. BACKGROUND

         A. Factual Background

         The facts alleged in the SAC are relatively straightforward. Plaintiff claims that he is the owner of an apartment located at 1086 Kumukumu Street, Honolulu, Hawaii (the “apartment”). SAC ¶ 9, ECF No. 24. After a foreclosure action was instituted, a default judgment was entered entitling the Mariner's Village Three Community Association to foreclose on the apartment. Id. ¶¶ 12, 17. On June 26, 2017, the First Circuit Court of the State of Hawaii appointed Defendant Ronald Tom (“Tom”) as a commissioner for the purpose of holding a public auction to sell the apartment. Id. ¶ 18.

         The SAC alleges that Tom changed the locks on the apartment on several occasions, id. ¶¶ 23, 29, and 30, and that Tom and three officers from the Honolulu Police Department (“HPD”) evicted Plaintiff's houseguest on October 1, 2017 under threat of arrest. Id. ¶¶ 32-44. The SAC further alleges that “[t]he Officers involved falsified the police report identified as Incident Report 17-371846.” Id. ¶ 48.

         B. Procedural Background

         Plaintiff filed a Verified Amended Complaint in state court on November 16, 2017, which the City removed to this court on December 5, 2017. ECF No. 1. On December 12, 2017, the City filed its first Motion to Dismiss. ECF No. 7. On December 22, 2017, after a status conference, Plaintiff agreed to file a SAC in an effort to meet the more stringent pleading requirements in federal court. ECF No. 16. The SAC was filed on February 26, 2018. ECF No. 24.

         The City's Motion to Dismiss Plaintiff's SAC was filed on February 28, 2018. ECF No. 25. Plaintiff filed a “Position Memorandum, Opposing in Part and Supporting in Part” the City's Motion to Dismiss. ECF No. 35. And the City filed its Reply on March 26, 2018. ECF No. 37.

         A hearing was held on May 14, 2018.

         III. STANDARD OF REVIEW

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for failure to state a claim, a complaint generally must satisfy the requirements of Federal Rule of Civil Procedure 8, which requires that a complaint include a “short and plain statement of the claim showing that the pleader is entitled to relief.” This pleading standard “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). And a pleading that offers “labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. In other words, the allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Id. (citations and quotations omitted).

         A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state a cognizable legal theory or has not alleged sufficient facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). While the court is to accept as true all the factual allegations in the complaint, legally conclusory statements, not supported by actual factual allegations, need ...


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