United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
COMPLAINT, ECF NO. 15, WITH LEAVE TO AMEND ORDER GRANTING
DEFENDANT'S MOTION TO DISMISS COMPLAINT, ECF NO. 15, WITH
LEAVE TO AMEND
Michael Seabright Chief United States District Judge
the court is Defendant Joshua B. Hyman's
(“Defendant”) Motion to Dismiss pro se Plaintiff
Angela Michelle Morelli's (“Plaintiff”)
Complaint for lack of subject matter jurisdiction. ECF No.
15. For the reasons set forth below, the Motion to Dismiss is
GRANTED for failure to state a claim, with leave to amend.
February 20, 2019, Plaintiff filed her Complaint against
Defendant alleging 42 U.S.C. § 1983 claims for violation
of unspecified constitutional and civil rights in connection
with a custody dispute involving their minor child. ECF No. 1
at PageID #1, 3. The Complaint alleges that Defendant is the
father of Plaintiff's young son. Id. at PageID
#4. The Complaint also references numerous federal and state
statutes, primarily criminal, and includes allegations of
abuse by Defendant. Id. at PageID #2-6. More
specifically, the Complaint alleges violations of 5 U.S.C.
§ 552; 18 U.S.C. §§ 242, 512, 1503, 1510,
1513, 1621, 1001, 241, and 2261A; and Hawaii Revised Statutes
(“HRS”) §§ 92F-24, 708-820, and
708-906. Id. at PageID # 2-4. The Complaint refers
to a “lower court order” and appears to challenge
various state court orders regarding custody, child support,
and other issues related to a temporary restraining order.
Id. at 6. Plaintiff seeks an “award of full
physical legal custody along with child support . . . [and]
damages and legal fees.” Id. at PageID #7.
April 19, 2019, Defendant filed the instant Motion to
Dismiss. ECF No. 15. On June 3, 2019, Plaintiff filed an
Opposition and on June 10, 2019, Defendant filed a Reply. ECF
Nos. 27-28. Pursuant to Local Rule 7.2(d), the court finds
this matter suitable for disposition without a hearing.
STANDARDS OF REVIEW
Rule of Civil Procedure 12(b)(1) authorizes a court to
dismiss claims over which it lacks proper subject matter
jurisdiction. The court may determine jurisdiction on a
motion to dismiss for lack of jurisdiction under Rule
12(b)(1) so long as “the jurisdictional issue is [not]
inextricable from the merits of a case . . . .”
Kingman Reef Atoll Invs., L.L.C. v. United States,
541 F.3d 1189, 1195 (9th Cir. 2008). The moving party
“should prevail [on a motion to dismiss] only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Casumpang v. Int'l Longshoremen's
& Warehousemen's Union, 269 F.3d 1042, 1060 (9th
Cir. 2001) (citation and quotation marks omitted); Tosco
Corp. v. Cmtys. for a Better Env't, 236 F.3d 495,
499 (9th Cir. 2001), abrogated on other grounds by Hertz
Corp. v. Friend, 559 U.S. 77 (2010).
Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
for “failure to state a claim upon which relief can be
granted.” Dismissal is appropriate where the 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) (quoting Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).
The court may also “dismiss a complaint sua sponte
under [Rule] 12(b)(6) . . . without notice where the claimant
cannot possibly win relief.” Omar v. Sea-Land
Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see
also Barnard v. U.S. Gov't, 635 Fed.Appx. 388, 388
(9th Cir. 2016) (affirming sua sponte dismissal of complaint
where the “claims lacked any arguable basis in law or
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)); see also Weber v. Dep't of Veterans
Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This
tenet-that the court must accept as true all of the
allegations contained in the complaint-“is inapplicable
to legal conclusions, ” and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). Rather, “[a] claim has facial
plausibility 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).
Factual allegations that only permit the court to infer
“the mere possibility of misconduct” or
“unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id. at 679; see also Moss v. U.S.
Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
Pro Se Pleadings
Plaintiff is proceeding pro se, the court liberally construes
her Complaint and resolves all doubts in her favor. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations
omitted). The court must grant leave to amend if it appears
that Plaintiff can correct the defects in her Complaint,
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000),
but if a claim or complaint cannot be saved by amendment,
dismissal with prejudice is appropriate. Sylvia Landfield
Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir.
2013); see also Leadsinger, Inc. v. BMG Music Pub.,
512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a
district court may deny leave to amend for, among other
reasons “repeated failure to cure deficiencies by
amendments previously allowed . . . [and] futility of
amendment”) (citation omitted).
seeks dismissal of Plaintiff's Complaint, arguing that
the Complaint fails to assert a cognizable basis for federal
subject matter jurisdiction. The court agrees.