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Sommers v. Okamoto

United States District Court, D. Hawaii

August 6, 2018

MARIA D. SOMMERS, Plaintiff,
v.
LINDA KAY OKAMOTO; ROY OKAMOTO; OKAMOTO REALTY, Defendants.

          ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (WHICH THE COURT CONSTRUES AS A MOTION TO DISMISS), ECF NO. 79

          J. MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On October 14, 2016, pro se Plaintiff Maria D. Sommers (“Plaintiff”) filed this civil action against Defendants Linda Kay Okamoto (“Kay”), Roy Okamoto (“Roy”), and Okamoto Realty (collectively, “Defendants”) alleging violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq. Compl., ECF No. 1.[1] On April 10, 2018, Defendants filed the instant Motion for Summary Judgment (the “Motion”). ECF No. 79. Because the court determines that Defendants could have made the same arguments in a Motion to Dismiss as opposed to a Motion for Summary Judgment, the court construes Defendants' Motion as a Motion to Dismiss. And so construed, Plaintiff's Complaint is DISMISSED, with leave to amend.

         II. BACKGROUND

         A. Factual Background

         As alleged in the Complaint, Kay owns Okamoto Realty and Roy is Kay's husband. Compl. ¶¶ 2-4. The Complaint alleges that on or about May 25, 2016, Roy ignored “NO trespassing” signs on Plaintiff's property located at 1539 Pakali Place, Lanai City, Hawaii (the “subject property”), entered the home, and sifted through Plaintiff's tenant's belongings, thereby allegedly committing robbery, theft, and criminal trespassing. Id. ¶ 5. The Complaint alleges that Plaintiff holds “the title deed to the house” and that she “gave no authorization for defendants to enter her property.” Id. ¶¶ 6, 8. The Complaint further alleges that Roy and Kay conspired to intimidate and harass Plaintiff's tenant in an attempt to force him to leave the premises, went to the tenant's work place, offered the tenant a “bribe” of $2, 500 to vacate Plaintiff's property, and threatened to change the locks if the tenant refused to leave. Id. ¶¶ 6, 7. Roy and Kay allegedly “run[] the only real estate enterprise, firm on the island” and use that enterprise to “bull[y] people off their land with threats of foreclosures and forfeitures.” Id. ¶ 9. The Complaint alleges that by these actions, Defendants have committed civil RICO violations.

         Although not clear, Plaintiff appears to allege the following offenses as RICO “racketeering” activities: 1) running a real estate business monopoly on the island of Lanai; 2) extortion; 3) bribery; 4) breaking and entering; 5) trespass; 6) robbery; 7) intimidation; 8) bullying; and 9) conspiracy to commit fraud.[2]

         B. Procedural Background

         Defendants filed the Motion on April 10, 2018. ECF No. 79. On April 11, 2018, the court entered an order stating the Motion would be heard on July 16, 2018 at 10:00 a.m., and that Plaintiff's opposition to the Motion was due by June 18, 2018. ECF No. 81. The court also provided Plaintiff with a notice to pro se litigants, setting forth the general nature of a motion for summary judgment and Plaintiff's obligation under Federal Rule of Civil Procedure 56. Id.

         Plaintiff filed no Opposition to the Motion. Defendants filed a Reply on June 25, 2018. ECF No. 96. Plaintiff failed to appear for the July 16, 2018 hearing.

         III. STANDARDS OF REVIEW

         Although brought as a Motion for Summary Judgment, the appropriate vehicle to address the issues raised here is a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). The court reaches this conclusion for several reasons. First, the Motion fails to adequately address a glaring legal deficiency in the RICO claim - many of the alleged offenses do not qualify (as a matter of law) as racketeering activity under RICO. Second, the Motion fails to address some of the offenses that do qualify as racketeering activities in the context of specific allegations in the Complaint. Third, the specific offense that is addressed (trespassing), does not qualify as a RICO racketeering activity. And fourth, the Motion can be determined solely on the sufficiency of the Complaint's allegations.

         “A court may convert a motion for summary judgment into a [Rule] 12(b)(6) motion to dismiss a complaint for failure to state a claim without notice to either party.” Scafe v. Pataki, 2009 WL 2707317, at *6 (E.D.N.Y. Aug. 26, 2009) (recognizing that “[c]onversion is appropriate when the court does not examine extrinsic evidence, but instead bases its decision solely on the pleadings”); see also Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968) (“Where appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.”); Fields v. Wise Media, LLC, 2013 WL 3812001, at *4 (N.D. Cal. July 19, 2013) (“Although defendant's motion is styled as a motion for summary judgment based on factual matters, . . . [a]s to arguments defendant raises based solely on the sufficiency of the allegations in the complaint, this order will consider those arguments as a motion to dismiss for failure to state a claim.”); Pascual v. Aurora Loan Servs., LLC, 2012 WL 2355531, at *2 (D. Haw. June 19, 2012) (construing summary judgment motion as a motion to dismiss); Sutor v. FEMA, 2009 WL 2004375, at *3 n.4 (E.D. Pa. July 9, 2009); Cabrita Point Dev., Inc. v. Evans, 2008 WL 5455405, at *6 (D.V.I. Dec. 31, 2008) (dismissing at summary judgment a claim under the Rule 12(b)(6) standard because an element was insufficiently pled).

         Under Rule 12(b)(6), the court may dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Dismissal is appropriate where a complaint lacks a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court assumes that all ...


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