United States District Court, D. Hawaii
SEAN CHEUNG TONG, Trustee of the unrecorded Kumukumu Trust dated January 1, 2015, Plaintiff,
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
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
hearing was held on May 14, 2018.
STANDARD OF REVIEW
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
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
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 ...