Barjaktarovic v. State of Hawaii et al

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
MILICA BARJAKTAROVIC,
Plaintiff,
vs.
STATE OF HAWAII, 	et al.,
Defendants.
CIV. NO. 24-00249 LEK-WRP
ORDER: DISMISSING CERTAIN DEFENDANTS; STAYING THE CASE;
DENYING AS MOOT PLAINTIFF’S ORDER TO SHOW CAUSE (TRO),
[FILED 6/13/24 (DKT. NO. 8),] PLAINTIFF’S MOTION TO REMOVE
THE EVICTION CASE, [FILED 6/13/24 (DKT. NO. 9),] AND
DENYING PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYING FEES OR COSTS, [FILED 6/7/24 (DKT. NO. 3)]
On June 7, 2024, pro se Plaintiff Milica Barjaktarovic
(“Plaintiff”) filed a Complaint for a Civil Case (“Complaint”)
against: the Association of Apartment Owners of Mokuleia Surf
(“AOAO”), by and through its Board of Directors; board members
Lorne Jackson, Trent Call, Tonya Grace Goldberg, Carolyn Unser,
Cynthia Hoye, Joannie Torrio, Rick Yniguez, Kate Nazhura, and
board witness David Burkel; All Community Management, and its
sole proprietor Bryn James; Associa Hawaii, its parent company
Associa, and its managers Christina Marumoto and Richard Emery;
Kapono Kaikona; Michael Biechler; Jamie Mariage; Christian
Porter; James Ferguson; James Shin; Jodie Roeca; Arthuer Roeca;
Gail Nakatani; Dispute Prevention and Resolution (“DPR”);
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Philadelphia Indemnity Insurance Company; the United States
Department of Justice (“DOJ”) and various agencies under the
DOJ; various State entities: the State of Hawai`i (“the State”);
the State of Hawai`i Attorney General; the State of Hawai`i
Office of Disciplinary Counsel (“ODC”); the State of Hawai`i
Commission of Judicial Conduct; the State of Hawai`i Department
of Consumer Affairs (“DCCA”), Regulated Industries Office; and
its officers Grant Oumni, Ryan Yamashiro, Terri Cobb-Adams, Eric
Irwin; and the DCCA Insurance Division and its officer Nina
Couch (collectively “State Defendants”); State of Hawai`i First
Circuit Court Judge Lisa Cataldo and State of Hawai`i
Intermediate Court of Appeals Judges Keith Hiraoka and Clyde
Wadsworth (collectively “Judicial Defendants”); and Doe
Defendants 1-50 (all collectively “Defendants”). [Dkt. no. 1 at
pgs. 1-4.] The same day, Plaintiff filed the Application to
Proceed in District Court Without Prepaying Fees or Costs
(“Application”). [Dkt. no. 3.] On June 17, 2024, Plaintiff filed
Additional Evidence for the Complaint (“Additional Evidence”).
[Dkt. no. 13.] The Court liberally construes the Complaint for a
Civil Case together with the Additional Evidence as Plaintiff’s
Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). For the reasons set forth below, certain Defendants are
dismissed, and the case is stayed pending the resolution of
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Plaintiff’s state court appeal. Further, the Application and
Plaintiff’s pending motions are denied as moot.
BACKGROUND
Plaintiff’s Complaint is difficult to decipher, but
appears to take issue with a lawsuit that the AOAO filed against
Plaintiff in the Circuit Court of the First Circuit, State of
Hawai`i (“circuit court”) concerning modifications Plaintiff
made to the condominium unit she owns (“Modification Lawsuit”).
See Complaint at pgs. 18, 22; see also Ass’n of Apartment Owners
of Moluleia Surf v. Barjaktarovic, Case No. 1CCV-20-0000850
(Hawai`i Cir. Ct.), 1 Final Judgment, filed 11/15/22 (dkt. no.
231) (“Circuit Court Final Judgment”). Plaintiff takes issue
with the arbitration between Plaintiff and the AOAO that
occurred between September 2021 to July 2022 and resulted in an
award in favor of the AOAO, [Complaint at pg. 7,] which the
state court confirmed in its Final Judgment. See Circuit Court
Final Judgment at 2-3. Plaintiff’s appeal of the Circuit Court
Final Judgment is ongoing before to the Intermediate Court of
Appeals of the State of Hawai`i (“ICA”). See Ass’n of Apartment
Owners of Moluleia Surf v. Barjaktarovic, No. CAAP-23-0000018; 2
1 The circuit court case docket will hereinafter be
referenced as AOAO of Moluleia Surf v. Barjaktarovic, Case No.
1CCV-20-0000850.
2 The ICA case docket will hereinafter be referenced as AOAO
of Moluleia Surf v. Barjaktarovic, No. CAAP-23-0000018.
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see also Complaint at pgs. 24-27 (describing the arbitration
process, and the confirmation of the arbitration by the circuit
court).
In broad terms, Plaintiff alleges that the AOAO, its
property managers and attorneys colluded with a biased
arbitrator and judges to ultimately rule in favor of the AOAO.
Plaintiff contends this process began with the arbitration, was
legalized by the circuit court in a judgment, and the ICA failed
to correct the alleged error. See, e.g., Complaint at pgs. 10-
11. Plaintiff further contends various “watchdog” agencies
failed to take action to prevent the foregoing. See id. at pgs.
11, 44. 3
At the core of the instant case, Plaintiff appears to
be contesting the outcome of the Modification Lawsuit. See id.
at pg. 51 (“It is requested that the Federal Court take over the
case properly, examine plaintiff’s evidence and rule in
3 For example, Plaintiff alleges that: the AOAO obtained a
judgment of $277,311 against Plaintiff, [Complaint at pg. 30;]
Judge Keith Hiraoka and Judge Lisa Cataldo should have recused
themselves, [id. at pgs. 30-31;] the arbitrator and DPR violated
the United States Constitution, various laws and rules, and the
arbitration agreement, [id. at pgs. 33-36;] the circuit court
and the ICA acted improperly through bias and fraud, depriving
Plaintiff’s right to due process, [id. at pgs. 36-42;] the AOAO,
various defendants and Judge Cataldo and Judge Hiraoka colluded
in arriving at the judgment at issue, [id. at pgs. 42-44;] and
defendant Philadelphia Indemnity Insurance, Hawai`i state
agencies, and the DOJ did not stop the improper actions of other
defendants, [id. at pgs. 44-46].
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plaintiff’s favor, at least vacate the award.”); see also id. at
pgs. 48-50 (seeking the same relief Plaintiff requested in the
arbitration process that was ultimately confirmed by the state
court). Plaintiff also seeks additional related relief that
arose after she submitted her requested relief to the
arbitrator, such as a temporary restraining order stopping the
foreclosure process on her condominium unit, [id. at pg. 50,]
reimbursements, refunds, and repairs by the AOAO, and further
relief from different parties, [id. at pgs. 50-54].
STANDARD
“Federal courts can authorize the commencement of any
suit without prepayment of fees or security by a person who
submits an affidavit that demonstrates he is unable to pay.”
Smallwood v. Fed. Bureau of Investigation, CV. NO. 16-00505 DKW-
KJM, 2016 WL 4974948, at *1 (D. Hawai`i Sept. 16, 2016) (citing
28 U.S.C. § 1915(a)(1)).
The Court subjects each civil action
commenced pursuant to Section 1915(a) to
mandatory screening and can order the dismissal
of any claims it finds “frivolous, malicious,
failing to state a claim upon which relief may be
granted, or seeking monetary relief from a
defendant immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc) (stating that
28 U.S.C. § 1915(e) “not only permits but
requires” the court to sua sponte dismiss an in
forma pauperis complaint that fails to state a
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claim);[ 4 ] Calhoun v. Stahl, 254 F.3d 845, 845
(9th Cir. 2001) (per curiam) (holding that “the
provisions of 28 U.S.C. § 1915(e)(2)(B) are not
limited to prisoners”).
Id. at *3.
In addition, the following standards apply in the
screening analysis:
Plaintiff is appearing pro se; consequently,
the court liberally construes her pleadings.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987) (“The Supreme Court has instructed the
federal courts to liberally construe the
‘inartful pleading’ of pro se litigants.” (citing
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiam))). The court also recognizes that
“[u]nless it is absolutely clear that no
amendment can cure the defect . . . a pro se
litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to
dismissal of the action.” Lucas v. Dep’t of
Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also
Lopez v. Smith, 203 F.3d 1122, 1126 (9th. [sic]
Cir. 2000).
Despite the liberal pro se pleading
standard, the court may dismiss a complaint
pursuant to Federal Rule of Civil
Procedure 12(b)(6) on its own motion. See Omar v.
Sea–Land Serv., Inc., 813 F.2d 986, 991 (9th Cir.
1987) (“A trial court may dismiss a claim sua
sponte under [Rule] 12(b)(6). Such a dismissal
may be made without notice where the claimant
cannot possibly win relief.”); see also Baker v.
Dir., U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C.
Cir. 1990) (holding that district court may
dismiss cases sua sponte pursuant to
Rule 12(b)(6) without notice where plaintiff
could not prevail on complaint as alleged). . . .
“Federal courts are courts of limited
jurisdiction,” possessing “only that power
4 Lopez has been overruled, in part, on other grounds by
Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).
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authorized by Constitution and statute.” United
States v. Marks, 530 F.3d 799, 810 (9th Cir.
2008) (quoting Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994)). The assumption is
that the district court lacks jurisdiction. See
Kokkonen, 511 U.S. at 377. Accordingly, a “party
invoking the federal court’s jurisdiction has the
burden of proving the actual existence of subject
matter jurisdiction.” Thompson v. McCombe, 99
F.3d 352, 353 (9th Cir. 1996).
Flores v. Trump, CIVIL 16-00652 LEK-RLP, 2017 WL 125698, at *1
(D. Hawai`i Jan. 12, 2017) (some alterations in Flores) (some
citations omitted).
DISCUSSION
I. 	Screening of the Complaint
A. 	Immunity
Certain Defendants are entitled to immunity. The Court
lacks jurisdiction over the State and its agencies as these
entities possess sovereign immunity pursuant to the Eleventh
Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984). “This jurisdictional bar applies regardless
of the nature of the relief sought.” Id. (citation omitted); see
also During v. Citibank, N.A., 950 F.2d 1419, 1422-23 (9th Cir.
1991) (stating that the Eleventh Amendment bars “federal courts
from deciding virtually any case in which a state or the ‘arm of
a state’ is a defendant . . . unless the state has affirmatively
consented to suit” (citations omitted)). Therefore, Plaintiff’s
claims against the State; State of Hawai`i Attorney General; the
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ODC; the State of Hawai`i Commission of Judicial Conduct; the
DCCA Regulated Industries Office; and DCCA Insurance Division
must be dismissed because it is not possible for Plaintiff to
obtain relief against those defendants. See Omar, 813 F.2d at
991. Further, because it is absolutely clear that Plaintiff
cannot cure the defect in those claims by amendment, the
dismissal is with prejudice. See Lucas, 66 F.3d at 248.
Similarly, to the extent that Plaintiff sues State
officials acting in their official capacities for monetary
relief, the Eleventh Amendment also bars these claims. See
Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (“The
Eleventh Amendment bars claims for damages against a state
official acting in his or her official capacity.” (citation
omitted)). To the extent that Plaintiff seeks monetary damages
from Grant Oumni, Ryan Yamashiro, Terri Cobb-Adams, Eric Irwin,
and Nina Couch in their official capacities (collectively “State
Official Defendants”), such claims are barred by the Eleventh
Amendment and must be dismissed with prejudice.
The Court likewise lacks jurisdiction over the DOJ. As
an agency of the United States, the DOJ is protected from civil
suit unless sovereign immunity has been waived. See Balser v.
Dep’t of Justice, Off. of U.S. Tr., 327 F.3d 903, 907 (9th Cir.
2003). Plaintiff has not identified any waiver of sovereign
immunity, and there is no indication the United States has
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waived sovereign immunity in this case. Claims against the DOJ
therefore must be dismissed. However, because Plaintiff’s claims
against the DOJ are not entirely clear, and it is arguably
possible for Plaintiff to cure the defects in the claims against
the DOJ, dismissal of the DOJ is without prejudice. See Lucas,
66 F.3d at 248.
As to the Judicial Defendants, judges possess absolute
immunity for actions taken in their judicial capacities. See
Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). The only
instances where judicial immunity does not apply is when a judge
is not acting in a judicial capacity or acted in the clear
absence of jurisdiction. See id. at 356-57. Even “allegations
that judicial . . . decisions were conditioned upon a conspiracy
or bribery,” such as allegations that judges entered into a
conspiracy “to predetermine the outcome of a judicial
proceeding, while clearly improper, nevertheless does not pierce
the immunity extended to judges.” Ashelman v. Pope, 793 F.2d
1072, 1078 (9th Cir. 1986) (en banc). Here, Plaintiff is suing
Judges Lisa Cataldo, Keith Hiraoka and Clyde Wadsworth for
actions taken in their judicial capacities, namely ignoring
Plaintiff’s evidence when presiding over Plaintiff’s case in
state court. See, e.g., Complaint at pg. 54. Therefore, the
claims against Judges Cataldo, Hiraoka, and Wadsworth must be
dismissed with prejudice.
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B. 	Whether a Stay is Warranted
Finally, because the instant Complaint constitutes a
de facto appeal of the Circuit Court Final Judgment that is
currently on appeal before the ICA, a stay of the instant
proceeding is warranted until the proceedings in state court are
finalized.
Although Plaintiff couches the Complaint in terms such
as extortion or racketeering, see, e.g., id. at pg. 11, it is
clear Plaintiff seeks to appeal and overturn the Circuit Court
Final Judgment. Plaintiff requests the Court “take over the
case,” “rule in plaintiff’s favor” or “at least vacate the
award” confirmed in the underlying state court proceedings.
Complaint at pg. 51; see also id. at pgs. 48-50 (seeking the
same relief Plaintiff requested in the arbitration process that
resulted in the award ultimately confirmed by the circuit
court). The arbitration award that Plaintiff asks to be vacated
was confirmed in the Circuit Court Final Judgment, and an appeal
of Modification Lawsuit is currently pending before the ICA. See
AOAO of Moluleia Surf v. Barjaktarovic, Case No. 1CCV-20-
0000850, Final Judgment; see generally AOAO of Moluleia Surf v.
Barjaktarovic, No. CAAP-23-0000018.
The Colorado River doctrine allows a federal district
court to dismiss a case when a concurrent action in pending in
another court system in order to conserve judicial resources.
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See Colo. River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976). This doctrine furthers the purpose of
“wise judicial administration, giving regard to conservation of
judicial resources and comprehensive disposition of litigation.”
Id. at 817-18 (brackets and citations omitted).
Because Plaintiff appears to be trying to assert the
same appeal in federal court that is pending before the ICA, the
state proceedings and the instant case are similar enough to
warrant application of the Colorado River doctrine. See Nakash
v. Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989) (stating that
“exact parallelism” is not required, and “[i]t is enough if the
two proceedings are substantially similar” (citations and
internal quotation marks omitted)).
Courts consider eight factors to determine if a stay
is warranted:
(1) which court first assumed jurisdiction over
any property at stake; (2) the inconvenience of
the federal forum; (3) the desire to avoid
piecemeal litigation; (4) the order in which the
forums obtained jurisdiction; (5) whether federal
law or state law provides the rule of decision on
the merits; (6) whether the state court
proceedings can adequately protect the rights of
the federal litigants; (7) the desire to avoid
forum shopping; and (8) whether the state court
proceedings will resolve all issues before the
federal court.
Ernest Bock, LLC v. Steelman, 76 F.4th 827, 836 (9th Cir. 2023)
(citation omitted), cert. denied, 144 S. Ct. 554 (2024). The
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first two factors are irrelevant, as the state court has not
assumed control over property; and both the federal and state
forums are located in Honolulu. See R.R. St. & Co. v. Transp.
Ins. Co., 656 F.3d 966, 979 (9th Cir. 2011) (finding the first
two factors irrelevant for the same reasons). The remaining
factors substantially weigh in favor of a stay.
The third factor – piecemeal litigation – heavily
weighs in favor of a stay. “Piecemeal litigation occurs when
different tribunals consider the same issue, thereby duplicating
efforts and possibly reaching different results.” Am. Int’l
Underwriters (Philippines), Inc. v. Cont’l Ins. Co., 843 F.2d
1253, 1258 (9th Cir. 1988). As explained above, Plaintiff seeks
to litigate the same issues in the instant case as in state
court.
The fourth factor – the order in which jurisdiction
was obtained – also weighs in favor of stay, given the instant
action is at the screening stage, and Defendants have not yet
been served. On the other hand, the state proceeding is on
appeal before the ICA. Thus, the state courts have made
significantly more progress on the action than the Court. See
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
21 (1983) (determining the fourth factor is “measured . . . in
terms of how much progress has been made in the two actions”).
It would be “highly inefficient” to allow the instant case to
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proceed when the state proceedings have progressed far beyond
the instant case. See Nakash, 882 F.2d at 1415.
The fifth factor – whether state or federal law
provides the rule of decision – weighs slightly in favor of a
stay. As stated above, Plaintiff’s claims are not articulated
precisely, and it is unclear under what theories Plaintiff’s
case would be allowed to proceed upon if Plaintiff’s case
proceeded in this district court. However, Plaintiff’s claims
sound predominantly in state law. See, e.g., Complaint at pg. 25
(quoting Plaintiff’s former attorney’s argument that the
arbitrator violated Hawai`i law); id. at pgs. 33-37 (alleging
the arbitrator violated Hawai`i arbitration rules, and the state
court judges ignored evidence of the same in reaching their
rulings). To the extent that Plaintiff seeks relief under
federal law, state courts have concurrent jurisdiction, making
this factor less significant. See Nakash, 882 F.2d at 1416
(finding the fourth factor “less significant” in light of state
courts’ concurrent jurisdiction over RICO claims).
The sixth factor is of little or no weight when the
state forum is adequate to protect federal rights. See Travelers
Indem. Co. v. Madonna, 914 F.2d 1364, 1370 (9th Cir. 1990)
(stating the sixth factor is more important when it weighs in
favor of federal jurisdiction). Here, there are no obstacles to
the state court protecting federal rights. Plaintiff can and has
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appealed the Circuit Court Final Judgment to the ICA. Thus, the
same issues are actively at issue in the state court proceeding,
and state courts can resolve these issues just as effectively as
federal courts.
The seventh factor heavily weighs in favor of a stay.
Plaintiff appears to have filed the instant case to avoid a
ruling issued by the state court, due to an apparent loss in
state court and broader difficulties proceeding in state court.
This is quintessential forum-shopping. See id. at 1371 (“forum
shopping weighs in favor of a stay when the party opposing the
stay seeks to avoid adverse rulings made by the state
court . . .”).
Finally, the eighth factor weighs in favor of a stay,
as resolution of the state proceedings will resolve whether the
Circuit Court Final Judgment may be overturned or not.
Therefore, all applicable factors weigh in favor of a
stay. While mindful that the Colorado River doctrine is only
applied in “exceptional circumstances,” the Court concludes this
is one such circumstance. See Colo. River, 424 U.S. at 813
(quotation marks and citation omitted). Accordingly, the instant
action is hereby stayed pending final resolution of the
Modification Lawsuit on appeal. Plaintiff is directed to notify
the Court within 60 days after judgment has been entered in AOAO
of Moluleia Surf v. Barjaktarovic, No. CAAP-23-0000018 if
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Plaintiff does not file an application for certiorari with the
Hawai`i Supreme Court, or within 60 days of resolution of an
appeal to the Hawai`i Supreme Court. See Haw. R. App. P. 4(a)(1)
(stating a civil appeal must be filed within 30 days after entry
of the judgment or appealable order). The Court will determine
whether lifting the stay is warranted at that time.
II. 	Application and Other Motions
In light of the stay of the instant case, the Court
denies as moot Plaintiff’s Order to Show Cause (TRO), filed June
13, 2024, [dkt. no. 8;] Plaintiff’s Motion to Remove the
Eviction Case, filed June 13, 2024, [dkt. no. 9;] Plaintiff’s
Ex-Parte Motion for Appointment of Counsel, filed June 13, 2024,
[dkt. no. 10;] and the Application. Plaintiff may file new
motions and a renewed Application upon the lifting of the stay.
CONCLUSION
On the basis of the foregoing, Plaintiff’s claims
against Defendants State of Hawai`i; the State of Hawai`i
Attorney General; the State of Hawai`i Office of Disciplinary
Counsel; the State of Hawai`i Commission of Judicial Conduct;
the State of Hawai`i Department of Consumer Affairs, Regulated
Industries Office; the State of Hawai`i DCCA Insurance Division,
Lisa Cataldo, Keith Hiraoka, and Clyde Wadsworth are DISMISSED
WITH PREJUDICE. Additionally, to the extent that Plaintiff’s
claims seek monetary damages from Defendants Grant Oumni, Ryan
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Yamashiro, Terri Cobb-Adams, Eric Irwin, and Nina Couch in their
official capacities, those claims are DISMISSED WITH PREJUDICE.
Plaintiff’s claims against the United States Department of
Justice are DISMISSED WITHOUT PREJUDICE, and Plaintiff is
granted leave to amend the claims against the United States
Department of Justice. The Court will issue a deadline for the
filing of Plaintiff’s amended complaint after the stay is
lifted.
The case is STAYED. Plaintiff is DIRECTED to notify
the Court when Plaintiff’s state court appeal is resolved:
either 60 days after judgment has been entered in AOAO of
Moluleia Surf v. Barjaktarovic, No. CAAP-23-0000018 if Plaintiff
does not file an application for certiorari with the Hawai`i
Supreme Court, or within 60 days of the conclusion of a
potential Hawai`i Supreme Court appeal.
Plaintiff’s Application to Proceed in District Court
Without Prepaying Fees or Costs, filed June 7, 2024; Plaintiff’s
Order to Show Cause (TRO), filed June 13, 2024; and Plaintiff’s
Motion to Remove the Eviction Case, filed June 13, 2024, are
DENIED AS MOOT.
IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAII, June 25, 2024.
MILICA BARJAKTAROVIC VS. STATE OF HAWAII,ET AL; CV 24-00249 LEK-
WRP; ORDER: 	DISMISSING CERTAIN DEFENDANTS; STAYING THE CASE;
DENYING AS MOOT PLAINTIFF’S ORDER TO SHOW CAUSE (TRO), [FILED
6/13/24 (DKT. NO. 9),] AND DENYING PLAINTIFF’S APPLICATION TO
PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS,
[FILED 6/7/24 (DKT. NO. 3)]
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