Kawananakoa v. Marignoli ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2020
07:50 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ABIGAIL K. KAWANANAKOA, Plaintiff-Appellant,
v.
KAPIOLANI MARIGNOLI; DUCCIO MARIGNOLI,
Defendants-Appellees,
and
JOHN DOES 1-50; JANE DOES 1-50; DOE CORPORATIONS 1-50;
DOE PARTNERSHIPS 1-50; DOE GOVERNMENTAL ENTITIES 1-50;
DOE NON-PROFIT ENTITIES 1-50; and DOE DEFENDANTS 1-50,
Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 16-1-1017)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)
Plaintiff-Appellant Abigail K. Kawananakoa
(Kawananakoa) appeals from the February 3, 2017 Judgment on Order
Granting Motion to Dismiss for Lack of Jurisdiction (Judgment)
entered by the Circuit Court of the First Circuit (circuit
court).1 The Judgment was entered pursuant to the Order Granting
Motion to Dismiss for Lack of Jurisdiction (Order Granting MTD)
entered on the same day.
This case arises from a dispute between Kawananakoa
and Defendants-Appellees Kapiolani Marignoli (Kapiolani) and
Duccio Marignoli (Duccio) (collectively, the Marignolis)
1
The Honorable Edwin C. Nacino presided.
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regarding the ownership of a portrait of Kawananakoa's adoptive
mother, Princess Abigail Kawananakoa (hereafter, the Portrait).
In her Complaint, Kawananakoa alleged that she is the rightful
owner of the Portrait and sought, inter alia, its safe return
from the Marignolis as well as monetary damages. On October 17,
2016, Kapiolani filed a Motion to Dismiss for Lack of
Jurisdiction (MTD) pursuant to Hawai#i Rules of Civil Procedure
(HRCP) Rules 12(b)(1) and 12(b)(2),2 arguing that the circuit
court lacked (1) subject matter jurisdiction over the Portrait
because it is located in Italy and (2) personal jurisdiction over
Duccio, Kapiolani's son, because he is a resident of Spoleto,
Italy, who had not purposefully availed himself of the circuit
court's jurisdiction. Kapiolani further argued that the case
should be dismissed because Duccio's interest in the Portrait
rendered him an indispensable party to the action under HRCP Rule
19 and that he could not be feasibly joined because he is outside
the jurisdiction of the circuit court. At the hearing on the MTD
on December 9, 2016, the circuit court agreed with Kapiolani and
orally dismissed the case with prejudice. The circuit court then
entered the Order Granting MTD and the Judgment.
On appeal, Kawananakoa argues that the circuit court
had subject matter jurisdiction because the Portrait resided in
Honolulu, Hawai#i for many years prior to Duccio's possession of
it and the events upon which this dispute is based arose in
Hawai#i. Kawananakoa also argues that the circuit court had
personal jurisdiction over Duccio on the bases that Duccio: 1)
has been in Hawai#i many times on business; 2) uses a Hawai#i
address for conducting business for a non-profit; 3) served on
2
HRCP Rule 12(b) states, in relevant part:
(b) How presented. Every defense, in law or fact, to a
claim for relief in any pleading, whether a claim,
counterclaim, cross-claim, or third-party claim, shall be
asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the option
of the pleader be made by motion: (1) lack of jurisdiction
over the subject matter, (2) lack of jurisdiction over the
person[.]
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the Board of the Friends of Iolani Palace from 2009-2015; and 4)
was in charge of the 2008 exhibit of the Portrait in Honolulu.
Based on the Complaint, this action was of both a quasi
in rem and in personam nature,3 and we construe Kawananakoa's
arguments on appeal to be that the circuit court had quasi in rem
jurisdiction over the Portrait and/or in personam jurisdiction
over Duccio. See 20 Am. Jur. 2d Courts § 69 ("A decision in
personam imposes a responsibility or liability on a person
directly and binds such individual personally with regard to
every property he or she possesses, even that over which the
court has no jurisdiction in rem and which its decision cannot
directly affect. The alternative to personal jurisdiction is in
rem jurisdiction or quasi in rem jurisdiction[.]" (footnote
omitted)); 1 Am. Jur. 2d Actions § 30 ("A proceeding quasi in rem
has been characterized as an in rem action which affects only the
interests of particular persons in a certain thing. . . . The
essential elements of an action quasi in rem are a res over which
the state can exercise power, and a course of judicial procedure
the object and result of which is to subject the res to the power
of the state by the judgment or decree which is entered[.]"
(footnotes omitted)).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve
Kawananakoa's points of error as follows.
I. In Rem and Subject Matter Jurisdiction Over the Portrait
In her Complaint, Kawananakoa asserted in conclusory
fashion that the "Court has jurisdiction over the matter" but did
not allege the location of the Portrait or otherwise provide any
basis upon which the circuit court's subject matter jurisdiction
could be gleaned. Kawananakoa also did not respond to
3
Kawananakoa sought an award of possession of the Portrait (quasi in
rem) and monetary damages from the Marignolis (in personam).
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Kapiolani's assertion of lack of in rem or subject matter
jurisdiction4 in either her Memorandum in Opposition to
Kapiolani's MTD (Memorandum in Opposition) or during the hearing
on the MTD, beyond asserting that the circuit court had to take
the allegations contained in the Complaint as true.
A trial court's dismissal for lack of subject matter
jurisdiction is a question of law, reviewable de novo. . . .
Our review is based on the contents of the complaint, the
allegations of which we accept as true and construe in the
light most favorable to the plaintiff. Dismissal is
improper unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claims which
would entitle him to relief. . . . When considering a motion
to dismiss pursuant to [HRCP] Rule 12(b)(1) the trial court
is not restricted to the face of the pleadings, but may
review any evidence, such as affidavits and testimony, to
resolve factual disputes concerning the existence of
jurisdiction.
O'Connor v. Diocese of Honolulu, 77 Hawai#i 383, 385, 885 P.2d
361, 363 (1994) (brackets omitted) (emphasis added) (quoting
Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 239–240, 842 P.2d
634, 637 (1992)).
In this case, the circuit court properly considered
declarations attached to Kapiolani's MTD and Kawananakoa's
Memorandum in Opposition. Kapiolani declared that both Duccio
and the Portrait resided in Italy. Kawananakoa also declared
that she sent the Portrait to Duccio in 1998 and that he
currently had possession of it. Thus, it was undisputed that the
Portrait was located in Italy during the course of this action.
The circuit court therefore did not have in rem or quasi in rem
jurisdiction over the Portrait and did not err in its decision in
this regard. See Shaffer v. Heitner, 433 U.S. 186, 199 (1977)
(stating that quasi in rem jurisdiction is "based on the court's
power over property within its territory").
II. In Personam or Personal Jurisdiction Over Duccio
"In determining personal jurisdiction, 'the [trial]
4
"Quasi in rem jurisdiction is a form of subject matter jurisdiction
based on property located within the state's territory, tangible or
intangible[.]" 21 C.J.S. Courts § 38 (footnotes omitted).
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court has discretion to proceed either upon written submissions
or through a full evidentiary hearing.'" Shaw v. North Am. Title
Co., 76 Hawai#i 323, 326–27, 876 P.2d 1291, 1294–95 (1994)
(quoting 2A J. Moore, J. Lucas & G. Grotheer, Moore's Federal
Practice ¶ 12.07[2.–2] at 12–69–70 (2d ed. 1993)).
If the . . . court chooses not to conduct a full-blown
evidentiary hearing on a pretrial motion to dismiss for lack
of personal jurisdiction, plaintiff need make only a prima
facie showing of jurisdiction through its own affidavits and
supporting materials, even though plaintiff eventually must
establish jurisdiction by a preponderance of the evidence
either at a pretrial evidentiary hearing or at trial and,
before the hearing is held, a prima facie showing suffices
notwithstanding any controverting presentation by the moving
party to defeat the motion.
Id. (emphasis added) (quoting Marine Midland Bank, N.A. v.
Miller, 664 F.2d 899, 904 (2d Cir. 1981)). In this case,
although there was a hearing on the MTD, it does not appear that
there was formal discovery or a "full-blown evidentiary hearing"
on the MTD. See Maeda v. Pinnacle Foods Inc., 390 F. Supp. 3d
1231, 1242 (D. Haw. 2019) ("Absent formal discovery or an
evidentiary hearing, 'this demonstration requires that the
plaintiff make only a prima facie showing of jurisdictional facts
to withstand the motion to dismiss.'" (quoting Pebble Beach Co.
v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006))).
"Personal jurisdiction exists when (1) the defendant's
activity falls under the State's long-arm statute, and (2) the
application of the statute complies with constitutional due
process." Norris v. Six Flags Theme Parks, Inc., 102 Hawai#i
203, 207, 74 P.3d 26, 30 (2003). "Hawaii's long-arm statute, HRS
§ 634-35,[5] was adopted to expand the jurisdiction of the State's
5
HRS § 634-35 (2016) states in relevant part:
(a) Any person, whether or not a citizen or resident of
this State, who in person or through an agent does any of the
acts hereinafter enumerated, thereby submits such person, and,
if an individual, the person's personal representative, to the
jurisdiction of the courts of this State as to any cause of
action arising from the doing of any of the acts:
(1) The transaction of any business within this State;
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courts to the extent permitted by the due process clause of the
Fourteenth Amendment." Cowan v. First Ins. Co. of Hawaii, Ltd.,
61 Haw. 644, 649, 608 P.2d 394, 399 (1980).
Due process requires that a nonresident defendant have
sufficient "minimum contacts" with the forum state "such
that the maintenance of the suit does not offend
'traditional notions of fair play and substantial justice.'"
International Shoe Co. v. Washington, 326 U.S. 310, 316, 66
S. Ct. 154, 158, 90 L. Ed. 95 (1945) (citation omitted).
"'[I]t is essential in each case that there be some act by
which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws.'"
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct.
2174, 2183, 85 L. Ed. 2d 528 (1985) (quoting Hanson v.
Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239, 2 L. Ed. 2d
1283 (1958)). The determining inquiry is whether "'the
defendant's conduct and connection with the forum State are
such that he should reasonably anticipate being haled into
court there.'" Id. at 474, 105 S. Ct. at 2183 (quoting
World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297,
100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980)). There is no
"talismanic jurisdictional formula" and the court weighs
each case on its facts. Id. at 485–86, 105 S.Ct. at 2189
(citation omitted).
In Interest of Doe, 83 Hawai#i 367, 373, 926 P.2d 1290, 1296
(1996) (quoting Shaw, 76 Hawai#i at 329–30, 876 P.2d at 1297–98).
There are "two types of personal jurisdiction:
'general' (sometimes called 'all-purpose') jurisdiction and
'specific' (sometimes called 'case-linked') jurisdiction."
Bristol-Myers Squibb Co. v. Superior Court of California, San
Francisco County, 137 S. Ct. 1773, 1780 (2017). "A court with
general jurisdiction may hear any claim against that defendant,
even if all the incidents underlying the claim occurred in a
different State." Id. (emphasis in original). However, in order
for a state court to exercise specific jurisdiction, the claim
must arise out of or relate to the defendant's contacts with the
forum state. Id.
A. General Jurisdiction
"[G]eneral jurisdiction exists where a defendant has
continuous and systematic contacts with the forum; the exercise
(2) The commission of a tortious act within this
State[.]
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of jurisdiction in such a case does not offend traditional
notions of fair play and substantial justice." In Interest of
Doe, 83 Hawai#i at 374, 926 P.2d at 1297.
Kawananakoa alleged in the Complaint that the
Marignolis were residents of Honolulu, Hawai#i. Through her MTD
and the attached declaration, Kapiolani controverted the
assertion as to Duccio and attested that Duccio resides in Italy.
Kawananakoa did not present affidavits or supporting material to
dispute this statement. Rather, in her Memorandum in Opposition
and on appeal, Kawananakoa asserts that the circuit court had
personal jurisdiction over Duccio on the bases that Duccio: 1)
has been in Hawai#i many times on business; 2) uses a Hawai#i
address for conducting business for a non-profit; 3) served on
the Board of the Friends of Iolani Palace from 2009-2015; and 4)
was in charge of the 2008 exhibit of the Portrait in Honolulu.
As exhibits to her Memorandum in Opposition, Kawananakoa
submitted copies of United States tax returns for Marignoli Di
Montecorona Foundation, Inc. (Marignoli Foundation), the
non-profit for which Duccio is listed as President, for the years
2012, 2013, and 2014.
The sworn declaration attached to Kawananakoa's
Memorandum in Opposition did not establish that Duccio had been
to Hawai#i many times on business, except for his trip to
Honolulu in 2008 to oversee the exhibit of the Portrait.
Additionally, notwithstanding the contrary evidence and
declarations submitted in Kapiolani's Reply to the Memorandum in
Opposition (Reply),6 these assertions and the tax returns do not
sufficiently establish that Duccio continuously or systemically
6
Attached to the Reply is the declaration of Robert J. Smolenski, one
of the Honolulu attorneys representing Kapiolani in this case. Mr. Smolenski
attests, inter alia, that: he is the Secretary and a Director of the Marignoli
Foundation; attached to his declaration as an exhibit is an Italian tax code
certificate listing Duccio as the representative of the Marignoli Foundation at
its operating office in Spoleto, Italy; the address on the tax returns for the
Marignoli Foundation is his office for IRS purposes, but Duccio has never been to
his office; and except for a couple of exceptions, meetings of the directors of
the Marignoli Foundation have been conducted by telephone conference call, with
Duccio participating from Spoleto, Italy.
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discharged his duties for the non-profit in this State or that he
could otherwise be found to be domiciled here. See Bristol-Myers
Squibb Co., 137 S. Ct. at 1780 ("For an individual, the paradigm
forum for the exercise of general jurisdiction is the
individual's domicile[.]"). Kawananakoa did not assert facts or
submit affidavits or other supporting materials showing that
Duccio discharged his duties for the Marignoli Foundation or as a
board member of the Friends of Iolani Palace in the state of
Hawai#i continuously or systematically. As a result, Duccio's
asserted contacts do not appear on their face to be continuous
and systematic, nor do they establish that he was domiciled in
this state. See id.; cf. Perkins v. Benguet Consol. Min. Co.,
342 U.S. 437, 447-48 (1952) (determining that the following
activities by the president of a foreign corporation amounted to
continuous and systematic activities conducted by the foreign
corporation in the forum state: maintaining an office from which
he conducted personal and corporate activities, keeping company
files and holding directors' meetings in the office and at his
home located in the forum state, carrying on correspondence
relating to the business, distributing salary checks drawn on two
active bank accounts in the forum state, engaging a bank in the
forum state to act as transfer agent, and supervising policies
dealing with the rehabilitation of the corporation's properties
in the Philippines from the forum state); Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 415-19 (1984)
(determining that a foreign corporation's contacts with a forum
state were not continuous and systematic when they consisted of:
sending its chief executive officer to the forum state for a
contract-negotiation session; accepting into its New York bank
account checks drawn on a bank in the forum state; purchasing
helicopters, equipment, and training services from a company in
the forum state for substantial sums; and sending personnel to
the helicopter company's facilities in the forum state for
training). Based on the foregoing, the circuit court did not err
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in determining that it lacked general jurisdiction over Duccio.
See Shaw, 76 Hawai#i at 326–27, 876 P.2d at 1294–95.
B. Specific Jurisdiction
If a defendant's contacts with the forum are not
continuous and systematic, the forum may exercise only
specific jurisdiction, and due process requires application
of the following three-part test:
(1) The nonresident defendant must
purposefully direct his activities or
consummate some transaction with the forum
or resident thereof; or perform some act
by which he purposefully avails himself of
the privilege of conducting activities in
the forum, thereby invoking the benefits
and protections of its laws;
(2) the claim must be one which arises out
of or relates to the defendant's
forum-related activities; and
(3) the exercise of jurisdiction must
comport with fair play and substantial
justice, i.e. it must be reasonable.
In Interest of Doe, 83 Hawai#i at 374, 926 P.2d at 1297.
Based on our review of the record, Kawananakoa did not
assert in either the Complaint or Memorandum in Opposition that
Duccio's possession of the Portrait arose out of or related to
the contacts he purportedly had with this state.7 Rather, at the
hearing on the MTD, Kawananakoa recited Duccio's asserted
contacts with this state and stated in a conclusory manner that
"[h]e's clearly availed himself of the -- of the privileges of
doing business in Hawai[#]i. So we think he clearly meets both
general jurisdiction and specific jurisdiction." Kawananakoa
thus had not met her burden of establishing specific
jurisdiction. See Shaw, 76 Hawai#i at 326–27, 876 P.2d at
1294–95.
III. Duccio as an Indispensable Party
At the hearing on the MTD, the circuit court agreed
with Kapiolani that one of the grounds for dismissing the
7
We note that the declarations of Kawananakoa and Kapiolani both
indicate that the Portrait was sent to Duccio in 1998, before Kawananakoa alleges
that he served on the Board of the Friends of Iolani Palace from 2009-2015.
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Complaint in its entirety was that Duccio was an indispensable
party under HRCP Rule 198 who could not be feasibly joined due to
the court's lack of jurisdiction over him, and that the case
proceeding against Kapiolani would prejudice Duccio's asserted
interest in the Portrait. Kawananakoa failed to argue either in
her Memorandum in Opposition or at the hearing on the MTD that
Duccio could be feasibly joined or that this case could properly
proceed without Duccio under HRCP Rule 19. Rather, in her Reply
Brief, Kawananakoa maintains that the circuit court had
jurisdiction over Duccio and his indispensability is therefore
irrelevant. Insofar as Kawananakoa failed to address the issue
of Duccio's indispensability during the lower court proceedings
or raise it as a point of error in her Opening Brief on appeal,
we deem that point waived and decline to review for plain error.
8
HRCP Rule 19 states in relevant part:
(a) Persons to be joined if feasible. A person who is
subject to service of process shall be joined as a party in
the action if (1) in the person's absence complete relief
cannot be accorded among those already parties, or (2) the
person claims an interest relating to the subject of the
action and is so situated that the disposition of the action
in the person's absence may (A) as a practical matter impair
or impede the person's ability to protect that interest or
(B) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest.
If the person has not been so joined, the court shall order
that the person be made a party. If the person should join
as a plaintiff but refuses to do so, the person may be made
a defendant, or, in a proper case, an involuntary plaintiff.
(b) Determination by court whenever joinder not
feasible. If a person as described in subdivision
(a)(1)-(2) hereof cannot be made a party, the court shall
determine whether in equity and good conscience the action
should proceed among the parties before it, or should be
dismissed, the absent person being thus regarded as
indispensable. The factors to be considered by the court
include: first, to what extent a judgment rendered in the
person's absence might be prejudicial to the person or those
already parties; second, the extent to which, by protective
provisions in the judgment, by the shaping of relief, or
other measures, the prejudice can be lessened or avoided;
third, whether a judgment rendered in the person's absence
will be adequate; fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for nonjoinder.
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See Hawai#i Rules of Appellate Procedure Rule 28(b)(4); State v.
Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003).
IV. Conclusion
Accordingly, the Circuit Court of the First Circuit's
February 3, 2017 Judgment on Order Granting Motion to Dismiss for
Lack of Jurisdiction is affirmed.
DATED: Honolulu, Hawai#i, September 30, 2020.
On the briefs:
/s/ Lisa M. Ginoza
George W. Van Buren, Chief Judge
and John B. Shimizu,
(Van Buren & Shimizu),
for Plaintiff-Appellant. /s/ Derrick H. M. Chan
Associate Judge
John P. Duchemin,
Janjeera S. Hail,
(Cades Schutte), /s/ Keith K. Hiraoka
and Robert J. Smolenski, Associate Judge
(Smolenski & Wooddell),
for Defendant-Appellee.
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