ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT COUNTY OF HAWAII'S MOTION TO DISMISS

DERRICK K. WATSON, District Judge.

INTRODUCTION

The County of Hawai`i seeks dismissal of Nakamoto's state law claims in this excessive force case, in light of her admitted failure to submit pre-suit notice of those claims in writing to the County Clerk, as required by Hawaii Revised Statutes ("HRS") § 46-76 and Hawai`i County Charter ("HCC") § 13-18. Because Nakamoto does not dispute that her negligence claims are barred, and the Court determines that her individual state tort claims based upon intentional conduct are likewise barred, by the lack of written notice to the County, the Court GRANTS in part the County's Motion to Dismiss. The County has failed, at least at this time, to meet its burden of proof on its statute of limitations defense as to claims brought as next friend of minors, A.N. and N.B., in light Hawaii's statutory infancy tolling provision, and the Motion is therefore DENIED in part as to those claims.

BACKGROUND

The Complaint alleges that Nakamoto was a passenger in a car driven by her husband, Ronald K.V. Barawis, Jr., when, at approximately 12:01 a.m. on February 5, 2016, while at a drive-thru lane at a McDonald's restaurant in Hilo, Hawaii, the car was surrounded by numerous, unnamed County police officers. Compl. ¶ 8, Dkt. No. 1-2. Nakamoto asserts that officers armed with assault-type rifles, without warning or provocation, opened fire on Nakamoto and Barawis. Compl. ¶¶ 8-9. At the time of the shooting, Nakamoto claims that she "had her hands raised, as instructed by the policer officers," and that she was unarmed and made "no threats or threatening gestures." Compl. ¶ 10. She was "struck multiple times by bullets and/or bullet fragments, and sustained significant and permanent physical and emotional injuries." Compl. ¶ 9.

Nakamoto asserts the following claims against the County and unidentified "John Doe" Hawaii Police Department officers:

Compl. ¶¶ 11-14.

Nakamoto contends that the County and the Hawaii Police Department "are liable for the conduct of Defendant John Doe Police Officers under the doctrine of respondeat superior, Compl. ¶ 16, and that the officers "were acting in their official capacity as . . . police officer[s] of the [County] and/or were acting under color of their authority as a police officer." Compl. ¶ 15. The Complaint also asserts that the County is liable for its own negligent supervision and hiring, that it was "otherwise negligent," and failed to effectively train its officers with regard to the excessive use of force. Compl. ¶ 17.

Nakamoto seeks damages for her own injuries as well as loss of consortium damages for her two minor children. Because Barawis is the father of N.B., Nakamoto seeks damages for the loss of affection and care N.B. would have received from Barawis, but for the incident. Compl. ¶¶ 23-24. She brings claims, as next friend, on behalf of the minors, alleging that they "suffered severe mental and emotional distress," due to the death of Barawis, and "over the injuries to their mother." Compl. ¶ 22-24.

The Complaint was filed in the state Circuit Court of the Third Circuit on January 12, 2018, and served on the County on February 27, 2018. See Decl. of Counsel ¶ 4, Notice of Removal, Dkt. No. 1-1. On March 15, 2018, the County removed the case to this district court on the basis of federal question jurisdiction, 28 U.S.C. § 1331. Notice of Removal, Dkt. No. 1.

The County moves to dismiss all state law claims with prejudice due to Nakamoto's failure to comply with the notice-of-claim requirements in HRS § 46-72 and the County Charter § 13-18, including (1) negligent infliction of emotional distress; (2) intentional infliction of emotional distress; (3) malicious use and/or abuse of discretion; (4) assault; and (5) any other claim sounding in negligence. The County does not move with respect to any claims brought under 42 U.S.C. § 1983 or against the officers in their individual capacities.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a complaint that fails "to state a claim upon which relief can be granted." Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Court may dismiss a complaint either because it lacks a cognizable legal theory or because it lacks sufficient factual allegations to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Pursuant to Ashcroft v. Iqbal, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)).

A court may consider certain documents attached to a complaint, as well as documents incorporated by reference in the complaint, or matters of judicial notice, without converting a Rule 12(b)(6) motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003). The Court takes judicial notice of the pleadings and other public records attached to the parties' briefs. See Fed. R. Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

"A statute-of-limitations defense, if `apparent from the face of the complaint,' may properly be raised in a motion to dismiss." Seven Arts Filmed Entm't Ltd. v. Content Media Corp., 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)); see also Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013) ("When an affirmative defense is obvious on the face of a complaint, . . . a defendant can raise that defense in a motion to dismiss.") (citing Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1128-29 (9th Cir. 1999)). That said, "a complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim." Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995) (citation and quotation marks omitted). In making such a determination, the Court is not "required to accept as true allegations that contradict . . . matters properly subject to judicial notice[.]" Seven Arts, 733 F.3d at 1254 (internal quotation marks omitted). In this case, the statute of limitations issues are apparent on the face of the Complaint as to Nakamoto's individual state law claims, as detailed below.

DISCUSSION

Under HRS § 46-72, an injured person must provide "notice in writing of the injuries and the specific damages resulting" to the individual identified in the county's charter "within two years after the injuries accrued," in order to hold the County liable for tort claims. HRS § 46-72. The County's charter provides that written notice must be provided to the county clerk. HCC § 13-18. Even if Nakamoto's Complaint was sufficient written notice under Section 46-72, she did not serve a copy of the Complaint on the County until February 27, 2018—after the statute of limitations expired. Because Nakamoto failed to comply with the requirements of Section 46-72, her individual state law tort claims are dismissed as untimely. The Motion is denied in part, however, as to the claims brought as next friend of minors, A.N. and N.B., because HRS § 657-13(1), by operation of law, tolls the statute of limitations during their infancy.

I. Tort Claims Against the County For Damages Based Upon Injuries to a Person Are Governed By the Applicable Two-Year Limitations Period

The full text of HRS § 46-72, titled "Liability for injuries or damages; notice" states:

Section 13-18 of the County Charter in turn provides:

Nakamoto acknowledges that her negligence-based claims are subject to the notice provisions in HRS § 46-72 and HCC § 13-18, but advances the argument that her claims based upon "intentional acts on the part of the Doe Police Officers . . . are not subject to HRS § 46-72." Mem. in Opp'n at 7, Dkt. No. 6. Nakamoto requests that the Court find that "the claims of assault and the intentional infliction of severe emotional distress are not barred." Mem. in Opp'n at 10. Because the state notice provisions apply to claims based upon negligence as well as those based upon intentional conduct, the Court rejects Nakamoto's argument, and finds instead that all of her state law claims, as pled, are subject to the two-year written notice requirement.1

First, by their plain language, these written notice requirements are not confined to claims for negligence. The statute applies to claims for "damages to any person for injuries to person or property . . . or on account of any negligence of any official or employee of the county." HRS § 46-72 (emphasis added). Likewise, the County Charter notice provision applies to claims for the "recovery of damages for any injury to persons or property by reason of negligence or other act of any official or employee of the county." HCC § 13-18 (emphasis added).

Second, case law interpreting this specific notice-of-claim requirement has not limited application of Section 46-72 to claims for negligence.2 For example, in Kaulia v. County of Maui, the district court determined that plaintiff's employment discrimination claims brought under HRS Chapters 368 and 378 against a county were "barred because Plaintiff failed to timely file written notice of his claim as is required by HRS § 46-72." 504 F.Supp.2d 969, 997 (D. Haw. 2007). The district court reasoned that Kaulia's "claims for discrimination under HRS §§ 368 & 378 are state law tort claims . . . [and] Plaintiff had two years . . . in which to file notice of his claim of injuries and damages with the County." Id. at 997 (citations and footnotes omitted); see also id. at 997-98 n.40 ("failure to timely file written notice with the county will bar subsequent state tort claims against the county"). Other decisions have reached similar conclusions with respect to intentional tort claims against counties brought under state law. See, e.g., Harris v. Cty. of Hawaii, 2017 WL 5163231, at *2 (D. Haw. Nov. 7, 2017) (describing Section 46-72 as applicable to "tort claims" against a county, and dismissing as untimely state law claims for assault and battery, false arrest, false imprisonment, and intentional infliction of emotional distress, in addition to those for negligent infliction of emotional distress, negligent training and supervision, negligence, gross negligence, and loss of consortium).

Here, there is no dispute that Nakamoto did not provide written notice to the County Clerk, as required by Section 46-72 and HCC § 13-18. Cf. Harris, 2017 WL 5163231, at *2 ("Under the plain language of Section 46-72, written notice must be provided to the County within two years of injury"). Even if Nakamoto's Complaint was sufficient written notice under Section 46-72, she did not serve a copy of the Complaint on the County until February 27, 2018, more than two years after the incident occurred on February 5, 2016. Because Nakamoto failed to comply with the requirements of Section 46-72, and she offers no evidence or argument that her time-barred claims are tolled for any reason, the Court dismisses with prejudice all of Nakamoto's state tort claims brought in her individual capacity.

II. The Motion Is Denied in Part With Respect to the Minors' Claims

To the extent Nakamoto brings claims for emotional distress and loss of consortium as next friend of minors A.N. and N.B., the County has not established that the statute of limitations similarly applies to those claims.3 The Complaint alleges that at the time of the incident, on February 5, 2016, "A.N. was approximately 2-1/2 years old, and N.B. was 6-months old." Compl. ¶ 3. The

Complaint further alleges that the minors "suffered severe mental and emotional distress," and "lost the love, support and companionship they would have received," due to the death of Barawis, Compl. ¶¶ 23-24, and also "suffered severe mental and emotional distress over the injuries to their mother." Compl. ¶ 22. Contrary to the County's argument, the minors' claims brought by Nakamoto as "next friend" are subject to the infancy tolling provision. Nothing cited by the County suggests otherwise. The County erroneously relies on Kahale v. City & County of Honolulu, 104 Haw. 341, 343, 90 P.3d 233, 235 (2004), for the proposition that "HRS § 357-13(1) nowhere provides for the tolling of derivative actions." Mem. in Supp. at 9, Dkt. No. 3-1. Claims brought as "next friend" on behalf of a minor, however, were not the "derivative actions" at issue in Kahale. Rather, the Hawaii Supreme Court in Kahale addressed the parents' untimely infliction of emotional distress and loss of consortium claims for injuries suffered by their minor child who was bitten by a dog at a City park. In Kahale, the parents, Francis and Rachel, individually, and as "next friend" of their daughter Brandzie, alleged that the City's negligence caused injuries to Brandzie (Count I), and inflicted emotional distress and loss of consortium on Francis and Rachael (Count II), and sought punitive damages (Count III). 104 Hawai`i at 344, 90 P.3d at 236. The Supreme Court held:

104 Hawai`i at 343, 90 P.3d at 235. Thus, in Kahale, the parents' claims were the "derivative actions" that were not protected by the infancy tolling provision. These circumstances are not present here.4

Because the County is subject to the infancy tolling provisions in HRS § 657-13(1), see Kahale, 104 Hawai`i at 349, 90 P.3d at 241, and the minors are alleged to have been under the age of eighteen at the time the cause of action accrued, on the face of the Complaint, it appears that claims for A.N. and N.B.'s own injuries are tolled as to the County.5 Because A.N. and N.B. were "`[w]ithin the age of eighteen years' at the time that the present matter arose, the infancy tolling provision of HRS § 657-13(1) allowed [them] the `liberty to bring such actions . . . at any time while the disability exists.'" Kahale, 104 Hawai`i at 349, 90 P.3d at 241 (quoting HRS § 657-13(1)). Nakamoto, as A.N. and N.B.'s "next friend, having filed claims for relief on [A.N. and N.B.]'s behalf while [they were] minor[s], ensured that HRS § 46-72 would not act as a bar to those claims against the [County]." Kahale, 104 Hawai`i at 349, 90 P.3d at 241.

In sum, because the County has not made a sufficient showing for purposes of the present Motion that the statute of limitations defense applies to bar the minors' claims as a matter of law, the Court denies the Motion without prejudice on this issue.

CONCLUSION

For the foregoing reasons, Nakamoto's own untimely state law claims are barred, and Defendant County of Hawaii's Motion to Dismiss, Dkt. No. 3, is GRANTED in part. The Motion is DENIED to the extent it seeks dismissal of claims brought as next friend of minors, A.N. and N.B., based upon their own injuries.

IT IS SO ORDERED.