United States District Court, D. Hawaii
ORDER (1) GRANTING MOTIONS TO DISMISS AMENDED
COUNTERCLAIMS OF DEFENDANT ALBERT HEE, ECF NOS. 132, 134; AND
(2) DENYING HEE'S MOTION FOR PARTIAL SUMMARY JUDGMENT,
ECF NO. 127
Michael Seabright Chief United States District Judge.
Order follows from the court's July 22, 2019 Order in
this case that (1) partially granted a motion for summary
judgment in favor of Plaintiff United States of America
(“Plaintiff” or the “United States”)
against Defendant Sandwich Isles Communications, Inc.
(“Sandwich Isles”), (2) dismissed counterclaims
asserted by Sandwich Isles against the United States, and (3)
dismissed counter- or third-party claims asserted by Sandwich
Isles against government officials in their individual
capacities. See ECF No. 161, United States v.
Sandwich Isles Commc'ns, Inc., __F.Supp.3d__, 2019
WL 3293641 (D. Haw. July 22, 2019) (the “July 22, 2019
Order”). Here, the court addresses three motions
regarding pro se co-Defendant Albert Hee's
(“Hee”) First Amended Counterclaim.
Hee seeks summary judgment on Count One (“Violation of
the Fifth Amendment Takings Clause”) of his
counterclaim against the United States. ECF No. 127. Second,
the United States moves to dismiss all counts of Hee's
counterclaim. ECF No. 132. And third, Pai, Hone, Gillett, and
Mattey (collectively, the “Individual-Capacity
Counter-Defendants”), move to strike or dismiss all
counts asserted against them in their personal capacities.
ECF No. 134.
court decides the motions without an oral hearing under Local
Rule 7.2(d). Based on the following, as well as for some of
the reasons explained in the July 22, 2019 Order, the court
(1) DENIES Hee's Motion for Partial Summary Judgment as
to Count One of Hee's counterclaim (2) GRANTS the United
States' Motion to Dismiss Hee's counterclaim; and (3)
GRANTS the Individual-Capacity Counter-Defendants' Motion
to Dismiss Hee's claims against them in their personal
court relies on and incorporates the July 22, 2019 Order for
this action's background and history, and thus the court
does not set forth all the details alleged in the Complaint,
and in Sandwich Isles' and Hee's counterclaims.
Hee's counterclaim is similar to Sandwich Isles'
counterclaim, and the motions to dismiss them involve some
similar issues. Consequently, the July 22, 2019 Order's
analysis (and dismissal) of Sandwich Isles' counterclaim
is especially relevant in addressing the present motions.
See Sandwich Isles, __F.Supp.3d at__, 2019 WL
3293641, at *11-20 (dismissing counterclaims for violations
of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et
seq. (“ECOA”); the Telecommunications Act, 47
U.S.C. § 254 et seq.; and claims based on Bivens v.
Six Unknown Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971)).
counterclaim alleges four counts against both the United
States and the Individual-Capacity
• Count One (“Violation of the Fifth Amendment
Takings Clause”), alleging that “[i]t is a
physical taking when Plaintiff USA sells Sandwich Isles
infrastructure to another company, ” and “[i]t is
a regulatory taking when Plaintiff USA reduces the amount of
[Universal Service Funds (“USF”)] Sandwich Isles
is entitled to after Sandwich Isles has incurred expenses
based on the amount of [USF] Plaintiff USA previously
approved.” For this, it alleges that “Sandwich
Isles has incurred expenses based on the amount of [USF]
Plaintiff USA previously approved.”
• Count Two (“Violation of the Fifth Amendment Due
Process Clause and the [Equal Credit Opportunity
Act]”), alleging in part that “[a]t all times,
Sandwich Isles has been owned by one or more Native
Hawaiians, ” and “[i]t is a violation of the ECOA
to discriminate against Sandwich Isles in any loan
• Count Three (“Violation of Good Faith and Fair
Dealings”), alleging in part that
[t]he loan contracts [between the United States and Sandwich
Isles] become unconscionable contracts of adhesion when
Plaintiff USA drafts the contract based on Sandwich Isles
receiving [USF], Plaintiff USA provides sufficient [USF] for
over 10 years, Plaintiff USA reduces to $0.00 the amount of
[USF] Sandwich Isles receives, then forecloses on the loan
contracts and seeks to obtain any shortfall from Sandwich
Isles, its former officers, directors and stockholder of its
• Count Four (“Defamation and Slander”)
alleging, in part, that “Plaintiff USA and Counterclaim
defendants have defamed and slandered me by making false
statements to the public that they know or should have known
and have the resources to determine are false.”
ECF No. 126 at PageID #1703.
that background, the court proceeds directly to analyzing the
three motions regarding Hee's counterclaim, starting with
the motions to dismiss.
The United ...