United States District Court, D. Hawaii
MARIA D. SOMMERS, Plaintiff,
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
MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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.
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.
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.
STANDARDS OF REVIEW
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
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
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 ...