Alkire-Cleme v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-FEB-2024
07:48 AM
Dkt. 74 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

VINH ALKIRE-CLEMEN, Plaintiff-Appellant,
v.
STATE OF HAWAI'I, DEPARTMENT OF HUMAN SERVICES,
DIVISION OF VOCATIONAL REHABILITATION, Defendant-Appellee;
and JOHN DOES 1-10; JANE DOES 1-10; DOE BUSINESS ENTITIES
1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS
1-10; DOE UNINCORPORATED ORGANIZATIONS 1-10;
and DOE GOVERNMENTAL AGENCIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC171001700)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Vihn Alkire-Clemen appeals from the Final Judgment
entered by the Circuit Court of the First Circuit on March 14,
2019.1 She challenges the (1) November 5, 2018 order denying her
motion for default judgment against the State of Hawai#i
Department of Human Services, Division of Vocational
Rehabilitation; (2) March 14, 2019 order granting the State's
motion to dismiss her complaint; and (3) June 5, 2019 order
denying her motion for reconsideration. We affirm, but for
reasons different from those articulated by the circuit court.

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The Honorable Dean E. Ochiai presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Alkire-Clemen's complaint was filed on October 19,
2017. It alleged that Alkire-Clemen received services from the
State under Hawaii Revised Statutes (HRS) Chapter 348 (Vocational
Rehabilitation) from 2003 until "March 28, 2014[,] when she was
advised that her [Individualized Plan for Employment] was being
closed allegedly because of 'Failure to Cooperate.'" The State
allegedly discriminated against her because of her disability,
which would violate HRS § 368-1.5 (2015).
(1) The complaint was served on Susan Foard, the
State's acting vocational administrator, on October 19, 2017.
The State did not respond to the complaint. On November 21,
2017, the circuit court clerk entered the State's default.
Alkire-Clemen moved for a default judgment. The circuit court
denied the motion because the complaint had not been served upon
the Attorney General, as required by Hawai#i Rules of Civil
Procedure (HRCP) Rule 4(d)(4). See Munoz v. Chandler, 98 Hawai#i
80, 89 n.13, 42 P.3d 657, 666 n.13 (App. 2002). The November 5,
2018 order denying the motion gave Alkire-Clemen leave to serve
the Attorney General. The circuit court was not wrong to deny
the motion for default judgment.
(2) After Alkire-Clemen served her complaint on the
Attorney General, the State moved to dismiss under HRCP
Rule 12(b)(1) (lack of subject matter jurisdiction) and (6)
(failure to state a claim). Alkire-Clemen contends the circuit
court erred by granting the motion. We review de novo, under the
same standard applied by the circuit court. Bank of Am., N.A. v.
Reyes-Toledo, 143 Hawai#i 249, 256-57, 428 P.3d 761, 768-69
(2018).
(a) We address HRCP Rule 12(b)(1) first, because
subject matter jurisdiction is a potentially dispositive issue.
The standard under HRCP Rule 12(b)(1) depends on whether the
jurisdictional challenge is facial or factual. State v. One Love
Ministries, 142 Hawai#i 197, 206, 416 P.3d 918, 927 (App. 2018).
A facial challenge is based on the allegations of the
complaint itself. The standard is the same as under HRCP

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Rule 12(b)(6). Id. That is, the allegations of the complaint
are accepted as true and construed in the light most favorable to
the plaintiff. Id. Under HRS § 368-12 (2015), a plaintiff has
90 days after receipt of a notice of right to sue to file a civil
action. Alkire-Clemen's complaint alleged that she received her
notice of right to sue on August 1, 2017. [JROA 27 @ 13] Her
complaint was filed on October 19, 2017 — 84 days later. The
complaint alleged facts showing subject matter jurisdiction.
A factual challenge to jurisdiction attacks the facts
alleged to support the existence of jurisdiction. To resolve a
factual challenge, the court may consider evidence outside the
pleadings. One Love Ministries, 142 Hawai#i at 206, 416 P.3d at
927. Alkire-Clemen's opposition attached a copy of the charge
she filed with the Hawai#i Civil Rights Commission (HCRC). The
parties disputed whether the charge was filed within 180 days
after "the alleged unlawful discriminatory practice occurred" as
required by HRS § 368-11(c)(1) (2015). That dispute is not
material to the circuit court's jurisdiction under HRS § 368-12.
The court had subject matter jurisdiction because Alkire-Clemen's
complaint was filed within 90 days after she received the right-
to-sue letter. But the 180-day dispute is material to whether
Alkire-Clemen stated a claim upon which relief could be granted.
(b) Under HRCP Rule 12(b)(6) a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts supporting
their claim that would entitle them to relief. Reyes-Toledo, 143
Hawai#i at 257, 428 P.3d at 769. Alkire-Clemen's proffer of her
HCRC charge was not objected to by the State. It was previously
authenticated by her affidavit in support of her motion for
default judgment. The circuit court did not exclude it; it was
mentioned in the court's oral ruling and in the order granting
the State's motion. Alkire-Clemen's submission of her HCRC
charge converted the motion to dismiss into one for summary
judgment. See HRCP Rule 12(b); Andrade v. County of Hawai#i, 145
Hawai#i 265, 269, 451 P.3d 1, 5 (App. 2019).

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

We review a grant or denial of summary judgment de
novo. Nozawa v. Operating Engineers Local Union No. 3, 142
Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018). We "may affirm a
grant of summary judgment on any ground appearing in the record,
even if the circuit court did not rely on it." Reyes v.
Kuboyama, 76 Hawai#i 137, 140, 870 P.2d 1281, 1284 (1994).
Alkire-Clemen's motion for default judgment was
supported by her affidavit. She stated, "on or about March 19,
20014 [sic], Defendant [State] closed her IEP and VR for her
'failure to cooperate' therein, as shown in Exhibit 'F' attached
hereto and incorporated herein by reference." Exhibit F was a
copy of the State's Case Closure Information form. It states
that Alkire-Clemen's case was closed on March 19, 2014. Alkire-
Clemen's HCRC charge of discrimination was filed on May 8, 2015 —
416 days later. The HCRC charge was not filed within 180 days
after "the alleged unlawful discriminatory practice occurred" as
required by HRS § 368-11(c)(1). The State was entitled to
summary judgment on that basis. The circuit court did not err by
dismissing Alkire-Clemen's lawsuit.
(3) Alkire-Clemen's motion for reconsideration also
sought leave to amend her complaint. Her motion presented no
arguments or evidence that could not have been presented during
proceedings on the State's motion to dismiss. James B. Nutter &
Co. v. Namahoe, 153 Hawai#i 149, 162, 528 P.3d 222, 235 (2023).
Her proposed amendment — to change the date from March 28, 2014
to January 2, 2015 — would have been futile because the Case
Closure Information form shows that the alleged discrimination
occurred on March 19, 2014. See Yoneji v. Yoneji, 137 Hawai#i
299, 318, 370 P.3d 704, 723 (App. 2016) (noting that reasons to
deny leave to amend include "futility of amendment"). The
circuit court did not abuse its discretion by denying
reconsideration and leave to amend.

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For these reasons, the "Final Judgment" entered by the
circuit court on March 14, 2019, is affirmed.
DATED: Honolulu, Hawai#i, February 22, 2024.

On the briefs:
/s/ Katherine G. Leonard
Ronald T. Fujiwara, Acting Chief Judge
for Plaintiff-Appellant.
/s/ Keith K. Hiraoka
Caron M. Inagaki, Associate Judge
Skyler G. Cruz,
Deputy Attorneys General, /s/ Sonja M.P. McCullen
State of Hawai#i, Associate Judge
for Defendant-Appellee
Department of Human Services,
Division of Vocational
Rehabilitation.

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