Eng v. Banta
| Barton Eng and WenDee Eng |
| Tyler Banta, Bert Miller, James Conaway, Lorraine Conaway, Giro Katsimbrakis, Tycon Properties, Inc., Tycon, LLC, STL 100, LLC, Blue Pacific Solution Group, NPF Plus Smart Tax Hawaii, LLC, St. Louis Redevelopment Company, LLC, GM Realty Management, Inc., Shelby Holdings, Inc., John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, Doe Unincorporated Organizations 1-10, Doe Governmental Agencies 1-10, Tycon 151, LLC, New Paradigm Financial, Inc., GM Realty, Inc., GM Realty Property Management, Inc. and Shelby Holdings, LLC |
| 1:2022cv00309 |
| July 15, 2022 |
| US District Court for the District of Hawaii |
| SUSAN OKI MOLLWAY |
| JILL A OTAKE |
| WES REBER PORTER |
| Negotiable Instrument |
| 12 U.S.C. § 1819 Default of Promissory Note |
| Plaintiff |
Docket Report
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This docket was last retrieved on June 30, 2023. A more recent docket listing may be available from PACER.
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Filing 17
EO: The Court GRANTS Plaintiffs' #16 Ex Parte Motion to Amend/Correct Amended Complaint. See Fed. R. Civ. P. 15(a)(2). Plaintiffs shall file the proposed Second Amended Complaint, see ECF No. 16-3, by no later than 9/20/2022 and shall effect service of the Second Amended Complaint on all Defendants by no later than 10/28/2022. (MAGISTRATE JUDGE WES REBER PORTER) (jo)
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Filing 16
Ex Parte MOTION to Amend/Correct #10 Amended Complaint David F. Day appearing for Plaintiffs Barton Eng, WenDee Eng (Attachments: #1 Memorandum Memorandum in Support of Ex Parte Motion for Leave to Amend, #2 Declaration Declaration of David F. Day, #3 Exhibit Exh A - Redlined version of porposed 2nd Amended Complaint, #4 Proposed Order Granting Leave to File 2nd Amended Complaint)(Day, David)
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Filing 15
EO: The Court CONTINUES the Telephonic Rule 16 Scheduling Conference from 9/12/2022 to 11/7/2022 at 10:00 AM before MAGISTRATE JUDGE WES REBER PORTER via Zoom: Dial in number: 1-833-568-8864; Meeting ID: 161 0084 2470.The public may listen to the proceedings by dialing the Public Dial-in number at 1-650-479-3207 and entering Access code: 1601263445.(MAGISTRATE JUDGE WES REBER PORTER)(jp)
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Filing 14
EO: On 7/21/22, the Court ordered Plaintiffs to show cause why this case should not be dismissed without prejudice for lack of subject matter jurisdiction. ECF No. 9. Plaintiffs then filed a #10 First Amended Complaint ("FAC"), which still contained deficiencies identified by the Court. ECF No. 11. In response, Plaintiffs filed a #12 Second Amended Complaint ("SAC"). The Court struck the SAC because it was filed without leave of court or Defendant' consent. ECF No. 13. Plaintiffs were already twice cautioned that their failure to establish subject matter jurisdiction might result in the dismissal of this action. As of now, the FAC is the operative pleading and it remains deficient for reasons articulated nearly one month ago. Plaintiffs must take necessary steps to rectify the deficiencies by 9/9/22. Failure to do so will result in the dismissal of this action. (JUDGE JILL A. OTAKE)(otake1)
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Filing 13
EO: On 8/15/22, Plaintiffs filed a #12 Second Amended Complaint ("SAC"). Pursuant to Federal Rule of Civil Procedure 15(a), "[a] party may amend its pleading once as a matter of course... In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a) (emphasis added). Because Plaintiffs previously filed a First Amended Complaint, they were required to obtain Defendants' written consent or leave of court to file the SAC, and they must do so to file any subsequent pleadings. Accordingly, the SAC was improperly filed and it is HEREBY STRICKEN. (JUDGE JILL A. OTAKE)(otake1)
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Filing 12
Document stricken pursuant to ECF No. 13 Entering Order Second AMENDED COMPLAINT against All Plaintiffs, filed by Barton Eng, WenDee Eng. (Attachments: #1 Exhibit A, #2 Exhibit B) (Day, David) Modified on 8/17/2022 (eta).
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Filing 11
EO: On 7/21/22, the Court ordered Plaintiffs to show cause why this case should not be dismissed without prejudice for lack of subject matter jurisdiction. ECF No. 9. Plaintiffs failed to sufficiently allege Defendants' citizenships so the Court could not ascertain whether diversity jurisdiction exists. On 8/5/22, Plaintiffs filed a #10 First Amended Complaint. Although it appears that Plaintiffs and Defendants are likely diverse, Plaintiffs' allegations regarding the LLC Defendants remain deficient. The Court previously explained that an LLC shares the citizenships of all of its owners/members. See Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899, 902 (9th Cir. 2006) ("[A]n LLC is a citizen of every state of which its owners/members are citizens."). Plaintiffs identify a single member for each of the LLC Defendants, yet they also allege that Defendants Tyler Banta, James Conaway, and Lorraine Conaway were partners in Defendants Tycon 151, LLC and STL 100, LLC. ECF No. 10 at 4. LLCs are comprised of members, not partners. Black's Law Dictionary (11th ed. 2019) (defining an LLC as "[a] statutorily authorized business entity that is characterized by limited liability for and management by its members and managers"). It is unclear whether Plaintiffs mislabeled these individual Defendants as partners instead of members. In any event, until Plaintiffs provide accurate information, the Court continues to lack the information necessary to confirm that diversity jurisdiction exists. Plaintiffs are also notified that their references to the parties' residences are incorrect. "[T]he diversity jurisdiction statute, 28 U.S.C. 1332, speaks of citizenship, not of residency." Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Plaintiffs are ordered to clarify the deficiencies addressed herein by 8/15/22. Failure to do so may result in the dismissal of this action. (JUDGE JILL A. OTAKE)(otake1)
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Filing 10
First AMENDED COMPLAINT against All Plaintiffs, filed by Barton Eng, WenDee Eng. (Attachments: #1 Exhibit, #2 Exhibit)(Day, David)
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Filing 9
ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED WITHOUT PREJUDICE - Signed by JUDGE JILL A. OTAKE on 7/21/2022. Without an accurate affirmation of Defendants' citizenship(s), the Court is unable to ascertain whether diversity jurisdiction exists. Accordingly, Plaintiffs are ORDERED TO SHOW CAUSE why this action should not be dismissed without prejudice for lack of subject matter jurisdiction. Plaintiffs must file a response to this Order to Show Cause by August 5, 2022, identifying Defendants' citizenship(s). Failure to timely or satisfactorily respond to this Order to Show Cause will result in a finding that Plaintiffs have failed to carry their burden of establishing subject matter jurisdiction and the Court will dismiss the action without prejudice. Show Cause Response due by 8/5/2022. (jni)
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Filing 8
EO: The parties are directed to review the General Civil Case Procedures Before Judge Otake posted on the court's website and are expected to comply with the most recent version that is posted. (JUDGE JILL A. OTAKE)(shm)
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Filing 7
NOTICE of Case Reassignment: Please reflect Civil Case Number CV 22-00309 JAO-WRP on all further pleadings. (jo)
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Filing 6
ORDER OF RECUSAL. Signed by JUDGE SUSAN OKI MOLLWAY on 7/19/2022. (cib)
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Filing 5
CIVIL Waiver of Service Packet ~ Notice to Parties Regarding Service Pursuant to Rule 4 of the Federal Rules of Civil Procedure. (Attachments: #1 AO 398 Notice of Lawsuit and Request to Waive Service of Summons, #2 AO 399 Waiver of Service of Summons)(eta)
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Filing 4
Order Setting Telephonic Rule 16 Scheduling Conference is set for 09:00AM on 9/12/2022 before MAGISTRATE JUDGE WES REBER PORTER - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 7/15/2022. (Attachments: #1 Memo from Clerk Re: Corporate Disclosures) ATTACH THE SCHEDULING ORDER TO THE INITIATING DOCUMENT (COMPLAINT/NOTICE OF REMOVAL). THE SCHEDULING ORDER AND MEMO RE: CORPORATE DISCLOSURES MUST BE SERVED WITH THE DOCUMENT. (eta)
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Filing 3
NOTICE of Case Assignment: Please reflect Civil case number CV 22-00309 SOM-WRP on all further pleadings. (eta)
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Filing 2
DEMAND for Trial by Jury. (Day, David)
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Filing 1
COMPLAINT for Breach of Fiduciary Duty; Negligence; Enforcement of a Promissory Note; Misrepresentation; Fraud; Unfair and Deceptive Trade Practices against All Defendants ( Filing fee $ 402 receipt number AHIDC-2707683.), filed by Barton Eng and WenDee Eng . (Attachments: #1 Exhibit Exh A - Promissory Note 1, #2 Exhibit Exh B - Promissory Note 2, #3 Civil Cover Sheet Civil Cover Sheet)(Day, David) Modified on 7/15/2022 (eta).
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