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Hamilton v. Lefkowitz

United States District Court, D. Hawaii

June 24, 2019



          Jill A. Otake, Judge

         This action arises out of Defendants William (“William”) and Denise (“Denise”) Lefkowitz's (collectively “Defendants”) alleged defamation, threats, and verbal abuse of Plaintiff Danielle Hamilton (“Plaintiff”) on Facebook and Our Family Wizard (“OFW”). Defendants move to dismiss this action because: (1) a Texas family court retained jurisdiction over the divorce decree between William and Plaintiff and (2) Plaintiff fails to state a claim upon which relief can be granted. For the reasons articulated below, the Court GRANTS IN PART AND DENIES IN PART Defendants' FRCP Rule 12(b)(6) and/or 12(b)(1) Motion to Dismiss. ECF No. 15.


         Plaintiff commenced this action on December 26, 2018. Plaintiff alleges that Defendants engaged in a campaign of threats, insults, and maliciously published false and defamatory remarks against her in an attempt to force her to pay for her and William's children's airfare to Hawai‘i. Compl. at ¶ 20. Plaintiff asserts the following claims: (1) defamation (Count I); (2) negligent and/or intentional infliction of emotional distress (Count II); and (3) injunctive relief (Count III). Id. at ¶¶ 25-35. In her prayer for relief, Plaintiff requests an order enjoining Defendants from further defaming, abusing, and harassing her; an award of general and special damages; and attorneys' fees and costs. Id. at 13.


         A. Rule 12(b)(1)

         Under Federal Rule of Civil Procedure (“FRCP”) 12(b)(1), a district court must dismiss a complaint if it lacks subject matter jurisdiction to hear the claims alleged in the complaint. Fed.R.Civ.P. 12(b)(1). A jurisdictional attack pursuant to FRCP 12(b)(1) may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). A facial attack challenges the sufficiency of the allegations contained in a complaint to invoke federal jurisdiction. Id. A factual attack contrastingly “disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. District courts may review evidence beyond the complaint in resolving a factual attack on jurisdiction without converting a motion to dismiss into a motion for summary judgment. Id. (citations omitted). In such instances, courts “need not presume the truthfulness of the plaintiff's allegations.” Id. (citation omitted); Courthouse News Serv. v. Planet, 750 F.3d 776, 780 (9th Cir. 2014) (alteration in original) (“A factual challenge ‘rel[ies] on affidavits or any other evidence properly before the court' to contest the truth of the complaint's allegations.”). “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Safe Air, 373 F.3d at 1039 (citation and quotations omitted).

         B. Rule 12(b)(6)

         FRCP 12(b)(6) authorizes dismissal of a complaint that fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). On a Rule 12(b)(6) motion to dismiss, “‘the court accepts the facts alleged in the complaint as true,' and ‘[d]ismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged.'” UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)) (alteration in original). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Nat'l Ass'n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000). Furthermore, the court need not accept as true allegations that contradict matters properly subject to judicial notice. Sprewell, 266 F.3d at 988.

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The tenet that the court must accept as true all of the allegations contained in the complaint does not apply to legal conclusions. Id. As such, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (citing Fed.R.Civ.P. 8(a)(2)) (some alterations in original). If dismissal is ordered, the plaintiff should be granted leave to amend unless it is clear that the claims could not be saved by amendment. Swartz v. KPMG LLP, 476 F.3d 756, 760 (9th Cir. 2007).


         Defendants seek dismissal of Counts I-III for lack of jurisdiction based on comity. The Court notes that the Ninth Circuit has not determined “whether abstention is properly raised under Rule 12(b)(6), Rule 12(b)(1), both, or neither.” Courthouse News, 750 F.3d at 780 n.2.

         Alternatively, Defendants argue that each count fails to state a claim upon which relief can be granted. The Court addresses each argument in turn. A. Abstention Defendants contend that the Court should decline to exercise jurisdiction because the claims in this action relate to the child custody provisions of Plaintiff and William's Divorce Decree, over which the Texas family court has retained jurisdiction. Mem. in Supp. of Mot. at 5. Defendants argue that Plaintiff's claims are a flagrant attempt to violate principles of comity and posit that the Younger v. Harris, 401 U.S. 37 (1971), requires the parties to resolve the current dispute in the Texas family court.

         Abstention is not warranted merely because a state court proceeding involving the same subject matter is pending. Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013) (citation omitted). “Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976); Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992). District courts should rarely invoke abstention “because the federal courts have a ‘virtually unflagging obligation . . . to exercise the jurisdiction given them.'” Ankenbrandt, 504 U.S. at 705 (quoting Colorado River, 424 U.S. at 817).

         “Younger exemplifies one class of cases in which federal-court abstention is required: When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution.” Sprint, 571 U.S. at 72. The Supreme Court has also extended Younger to “particular state civil proceedings that are akin to criminal prosecutions, or that implicate a State's interest in enforcing the orders and judgments of its courts.” Id. at 72-73 (internal citation omitted). When an action falls within the scope of a jurisdictional grant, a court should resolve it on the merits. Id. at 73. The “exceptional” circumstances fitting within Younger include “state criminal prosecutions, ” “civil enforcement proceedings, ” and “civil proceeding involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions.” Id.

         A party seeking to invoke Younger in a civil proceeding must satisfy a three-part test. “[A]bstention is required so long as the state proceedings: (1) are ongoing; (2) implicate ‘important state interests'; and (3) provide an adequate opportunity to raise federal questions.” Potrero Hills Landfill, Inc. v. Cty. of Solano, 657 F.3d 876, 882 (9th Cir. 2011) (quoting Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, (1982)). The Ninth Circuit has “articulated an implied fourth requirement that (4) the federal court action would ‘enjoin the proceeding, or have the practical effect of doing so.'” Id. (citations and internal quotations omitted).

         This case clearly does not fall within the exceptional circumstances covered by Younger. Younger requires a pending state court proceeding. The divorce decree relied upon by Defendants issued on May 27, 2014, well before the commencement of this action. And although the Texas family court reserved the right to enter orders to clarify and enforce the decree, the decree terminated those proceedings. 2013CI19552%20%20%20%20DC0000100000 (last visited June 24, 2019) (May 27, 2014 P00017 entry stating “CASE CLOSED FINAL JUD AFTER NON JURY TRIAL”).[1] A case does not remain open and pending for the purpose of an abstention analysis merely because a court elects to retain jurisdiction over certain issues before it, and Defendants have not provided any authority demonstrating otherwise. Cf. In re Blixseth, No. 09-60452-7, 2011 WL 3274042, at *9 (Bankr. D. Mont. Aug. 1, 2011) (finding absence of “binding or persuasive authority stating a state court's retention of jurisdiction would qualify as a pending, parallel state court proceeding for the purposes of abstention under 28 U.S.C. § 1334(c)”). Accordingly, because there is no pending state court proceeding, [2] Younger abstention is inapplicable.[3] Ankenbrandt, 504 U.S. at 705 (finding clearly erroneous the lower courts' application of Younger abstention absent pending state tribunal proceedings, which ended prior to the commencement of the federal lawsuit).

         Defendants did not raise the domestic relations exception to diversity jurisdiction, [4] but it would not divest this Court of jurisdiction. The domestic relations exception applies to “a narrow range of domestic issues.” Marshall v. Marshall, 547 U.S. 293, 307 (2006). Only divorce, alimony, and child custody decrees fall outside the Court's jurisdictional bounds because state tribunals have special proficiency in handling these issues. Marshall, 547 U.S. at 308 (citation omitted); Ankenbrandt, 504 U.S. at 703. Otherwise, “federal courts a[re] equally equipped to deal with complaints alleging the commission of torts.” Marshall, 547 U.S. at 308 (citation omitted).

         As already discussed, the Texas family court issued the divorce decree. The tort claims before this Court are not covered by the domestic relations exception. Defendants insist that the claims in this action pertain to visitation and payment of flights for the minor children, but the present claims have no bearing on the visitation schedule or other visitation rights. Plaintiff's claims are based on the contents of communications and she seeks injunctive relief and monetary damages. Notably, even if the claims presented in this lawsuit were more appropriately adjudicated in family court, Denise, who purportedly defamed Plaintiff, was not a party to any of the pertinent family court proceedings, and neither the Texas nor Alabama orders address Facebook postings. Consequently, any claims against Denise, as well as those concerning Facebook postings, would necessarily have to be the subject of a separate action. Thus, the domestic relations exception does not apply, and diversity jurisdiction provides a basis for the Court to adjudicate Plaintiff's claims.[5]

         B. Sufficiency of Plaintiff's Allegations

         Defendants alternatively argue that Plaintiff's claims are deficiently pled. At the hearing, however, defense counsel presented arguments that speak to the merits of the claims. Plaintiff's ability to prove her claims is not presently before the Court. Because this is an FRCP ...

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