United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' FRCP RULE 12(b)(6) AND/OR 12(b)(1) MOTION TO
A. Otake, Judge
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.
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.
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).
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.
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).
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.
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.
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).
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
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).
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”). 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,  Younger
abstention is inapplicable. 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).
did not raise the domestic relations exception to diversity
jurisdiction,  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).
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.
Sufficiency of Plaintiff's Allegations
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 ...