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Yoshimura v. Kaneshiro

United States District Court, D. Hawaii

April 29, 2019

TRACY T. YOSHIMURA, ET AL., Plaintiffs,
v.
KEITH M. KANESHIRO, ETC., ET AL., Defendants.

          ORDER ORDER DENYING DEFENDANT CITY & COUNTY OF HONOLULU'S MOTION TO DISQUALIFY COUNSEL AND DENYING DEFENDANT KEITH M. KANESHIRO'S JOINDER

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant City & County of Honolulu's (“the City”) Motion to Disqualify Attorney Keith M. Kiuchi (“Motion”), filed on February 19, 2019. [Dkt. no. 84.] On March 4, 2019, Defendant Keith M. Kaneshiro, in his individual capacity (“Kaneshiro”), filed his joinder of simple agreement in the Motion. [Dkt. no. 93.] Plaintiffs Tracy T. Yoshimura (“Yoshimura”), Eugene M. Simeona, Jr. (“G. Simeona”), Michael D. Miller, Jr. (“Miller”), Gary G. Danley, Jr. (“Danley”), Quentin D.R. Canencia (“Canencia”), Desiree U. Haina (“Haina”), Michael A. Madali, Jr. (“Madali”), and Clayton Simeona (“C. Simeona” and “Plaintiffs”) filed their memorandum in opposition on March 8, 2019, and the City filed its reply on March 15, 2019. [Dkt. nos. 102, 108.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). The City's Motion is hereby denied for the reasons set forth below.

         BACKGROUND

         Plaintiffs initiated the instant action on January 26, 2018, asserting federal question jurisdiction. [Complaint, dkt. no. 1.] On August 14, 2018, this Court issued an order dismissing Plaintiffs' Complaint and granting Plaintiffs leave to file an amended complaint. [Dkt. no. 27.] On September 25, 2018, Plaintiffs filed an amended complaint, and on November 8, 2018, Plaintiffs filed a Second Amended Complaint. [Dkt. nos. 31, 52.] The Second Amended Complaint is now the operative pleading.

         I. Second Amended Complaint

         The defendants named in the Second Amended Complaint are: Kaneshiro, in his individual capacity; Katherine Kealoha, in her individual capacity (“Kealoha”); Vernon Branco, in his individual capacity (“Branco”); the City; Jacob Delaplane, in his individual capacity (“Delaplane”); and Tommy Kong, in his individual capacity (“Kong” and collectively “Defendants”). [Second Amended Complaint at pgs. 3-4.] The Second Amended Complaint concerns the seizure of the Products Direct Sweepstakes (“PDS”) terminals on various dates and Plaintiffs' subsequent criminal indictments. [Id. at ¶ 20.]

         Yoshimura was the managing member of PJY Enterprises, LLC (“PJY”), which was a distributor of the PDS terminals; G. Simeona and Miller were owners of Hawai`i corporations that owned arcades in the City and County of Honolulu. [Id. at ¶¶ 20-21.[1] On September 27, 2012, Kaneshiro and the Honolulu Police Department (“HPD”) seized seventy-seven PDS terminals from six separate arcades that Plaintiffs allege they did not own or operate.[2] Following the September 27 seizures, Yoshimura made statements to the media that were critical of Kaneshiro's actions. [Id. at ¶ 22.] On December 13, 2012 and February 14, 2013, HPD seized additional PDS terminals at several different arcade locations; a majority of those seizures were made in arcades belonging to the corporations owned by G. Simeona and Miller. [Id. at ¶ 23.]

         As a result of the seizures of the PDS terminals, Plaintiffs allege that, on May 1, 2014, a state grand jury indicted Yoshimura, G. Simeona, Miller, Danley, Canencia, Haina, Madali, and C. Simeona (“First Indictment”). [Id. at ¶ 29.[3] On June 12, 2014, Yoshimura's then-defense attorney[4] filed a motion to disqualify the Department of the Prosecuting Attorney, and on September 2, 2014, filed the declaration of Mr. Kiuchi to supplement the motion. Plaintiffs allege that Mr. Kiuchi's declaration clarified that Yoshimura was not the owner of New World Group, Inc., one of the entities where PDS terminals were seized, and stated that Kealoha was aware that New World Group, Inc. was not owned by Yoshimura. [Id. at ¶ 35.] Yoshimura had also filed a motion to dismiss, which included the September 25, 2014 declaration of Mr. Kiuchi stating that Yoshimura did not own or operate the businesses which he was alleged to have owned and operated in the First Indictment. [Id. at ¶ 37.] The First Indictment was later dismissed without prejudice. [Id. at ¶ 41.]

         On January 28, 2016, Danley, Canencia, Haina, Madali, and C. Simeona were indicted (“Second Indictment”) for promoting gambling in the first degree and unlawful ownership or operation of a business. [Id. at ¶ 42.[5] On February 24, 2016, the state court indicted Yoshimura, G. Simeona, and Miller (“Third Indictment”), for promoting gambling in the first degree and unlawful ownership or operation of a business. [Id. at ¶ 47.] The criminal charges in the Third Indictment were later dismissed on October 27, 2017; and, on April 5, 2017, the criminal charges raised in the Second Indictment were also dismissed. [Id. at ¶¶ 51-52.] Plaintiffs allege that the other owners of the game arcades where PDS terminals were seized on September 27, 2012 were not indicted, and that Branco conducted all of the undercover investigations of the PDS terminals without the assistance of HPD or the Attorney General's office. [Id. at ¶¶ 23-24.] According to the Second Amended Complaint, Kaneshiro had been investigating Yoshimura since 2010, long before the PDS terminals were seized, and later targeted individuals who were involved in a civil lawsuit against Kaneshiro, the City, and others involved in the PDS terminal seizures, known as PJY Enterprises, LLC, et al. v. Kaneshiro, et al., CV 12-00577 LEK-RLP (“PJY Lawsuit” and “CV 12-00577”). Id. at ¶¶ 24, 27; and see infra, II.

         The Second Amended Complaint alleges the following claims:

-a 42 U.S.C. § 1983 claim against Kaneshiro, Kealoha, Branco, and the City for retaliatory prosecution, in violation of the First Amendment of the United States Constitution and the applicable provision of the Hawai`i State Constitution (“Count I”);
-a § 1983 claim against Kaneshiro, Kealoha, Branco, and the City based on allegations of selective enforcement, in violation of the Equal Protection Clause (“Count II”);
-a § 1983 claim against Kaneshiro, Kealoha, Branco, and the City based on an alleged violation of due process (“Count III”);
-a § 1983 claim by Canencia against Kaneshiro, Kong, and the City based on an alleged violation of due process (“Count IV”);
-a state claim by Danley, Canencia, Haina, C. Simeona, and Madali against Kealoha and the City for the initiation of malicious prosecution based on allegations regarding the Second Indictment (“Count V”);
-a state claim by Yoshimura against Kaneshiro, Kealoha, Delaplane, and the City for the initiation of malicious prosecution based on allegations regarding the First Indictment (“Count VI”);
-a state claim by Yoshimura against Kaneshiro, Kealoha, Delaplane, and the City for the initiation of malicious prosecution based on allegations regarding the Third Indictment (“Count VII”);
-a state claim by Danley, Canencia, Haina, C. Simeona, and Madali against Kealoha, Kaneshiro, and the City for maintaining a malicious prosecution based on allegations regarding the Second Indictment (“Count VIII”);
-a state claim by Yoshimura, G. Simeona, and Miller against Kealoha, Kaneshiro, and the City for maintaining a malicious prosecution based on allegations regarding the Third Indictment (“Count IX”);
-a state claim by all Plaintiffs against Kealoha and the City for abuse of process (“Count X”);
-a state claim by all Plaintiffs against Kaneshiro and the City for negligent hiring of Kealoha, Delaplane, Branco, and Kong (“Count XI”); and
-a state claim by all Plaintiffs against Kaneshiro and the City for negligent retention and supervision of Kealoha, Delaplane, and ...

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