Flowers v. First Hawaiian Bank

295 F.Supp.2d 1130

Marshall Kenneth FLOWERS and Anna Flowers, Plaintiffs, v. FIRST HAWAIIAN BANK, Defendant.

Marshall Kenneth Flowers and Anna Flowers, Plaintiffs, v. United States Army, 25th Infantry Division (L); and Fort Jackson Federal Credit Union, Defendants.

Nos. CIV. 99-00335SPK/KSC, CIV. 01-412SPK/BMK.

United States District Court, D. Hawai`i.

December 5, 2003.

Marshall Kenneth Flowers, pro se, Anna Flowers, pro se, Honolulu, HI, for Plaintiffs.

Theodore G. Meeker, Esq., Assistant United States Attorney, Honolulu, HI, for the Federal Defendants (United States Department of the Army).

Patsy Kirio, Watanabe Ing Kawashima & Komeiji, Honolulu, HI, for Defendant First Hawaiian Bank.

Jeffre W. Juliano, Reinwald, O'Connor & Playdon LLP, Honolulu, HI, for Defendant Fort Jackson Federal Credit Union.

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT AND RULING ON OTHER PENDING MATTERS

SAMUEL P. KING, District Judge.

OVERVIEW

In the latest set of motions in this case, the "Bank Defendants" (First Hawaiian Bank and Fort Jackson Federal Credit Union) have filed several motions for summary judgment on various aspects of the remaining claims. Plaintiffs Marshall and Anna Flowers have also filed a motion for summary judgment on liability under their claim under the Right to Financial Privacy Act, 12 U.S.C. § 3401, et seq. They have also filed a motion under Fed.R.Civ.P. 56(f) to postpone summary judgment proceedings for further discovery, which the Court will consider as part of the Plaintiffs' opposition to the various motions.

The motions at issue are: (1) Fort Jackson FCU's Motion for Partial Summary Judgment Re. RFPA Claims; (2) Fort Jackson FCU's Motion for Partial Summary Judgment Re. Punitive Damages (substantive joinder by First Hawaiian Bank); (3) Fort Jackson FCU's Motion for Partial Summary Judgment Re. Tortious Interference with Prospective Economic Advantage (substantive joinder by First Hawaiian Bank); (4) First Hawaiian Bank's Motion for Partial Summary Judgment On Claims for Attorneys' Fees; (5) First Hawaiian Bank's Motion for Summary Judgment as to all Claims for Compensatory Damages (substantive joinder by Fort Jackson FCU); and (6) Plaintiffs' Motion for Partial Summary Judgment.

For the reasons to follow, the Court GRANTS motions 1, 2, 3 and 5. The Court GRANTS in part and DENIES in part motions 4 and 6. The Court DENIES Plaintiffs' request for a continuance under Rule 56(f) because the issues involved are primarily questions of law on undisputed facts, because there has been ample time for discovery, and because there has been no showing that further discovery could lead to a different conclusion. Therefore, there being no triable issues of fact, judgment shall enter against Plaintiffs and in favor of Defendant Fort Jackson FCU. Judgment shall enter in favor of Plaintiffs and against Defendant First Hawaiian Bank in the amount of two hundred dollars ($200.00).

BACKGROUND

The basic factual and procedural background of this case is set forth in this Court's order at Flowers v. First Hawaiian Bank, 85 F.Supp.2d 993 (D.Haw.2000), in the Ninth Circuit's opinion at Flowers v. First Hawaiian Bank, 295 F.3d 966 (9th Cir.2002), and in this Court's recent decision in Flowers v. First Hawaiian Bank, 289 F.Supp.2d 1213 (D.Haw.2003). Plaintiff Marshall Flowers brought these suits primarily under the Right to Financial Privacy Act, 12 U.S.C. § 3401 et seq. ("RFPA"), after Defendants First Hawaiian Bank and Fort Jackson Federal Credit Union provided bank records to the United States Army after receiving military subpoenas during Article 32 investigatory proceedings against then-Sergeant-Major Flowers. This Court dismissed the suit against First Hawaiian Bank, but the Ninth Circuit remanded to this Court after determining that an Article 32 subpoena was invalid and that litigation and grand jury exemptions under 12 U.S.C §§ 3413(e) and 3413(i) did not apply. See Flowers, 295 F.3d at 970-77.

After remand, this Court consolidated the First Hawaiian Bank matter (Civ. No. 99-00335) with a similar matter involving Fort Jackson FCU (Civ. No. 01-412). Fort Jackson FCU consented to personal jurisdiction in Hawaii and the cases were consolidated upon Fort Jackson FCU's motion to consolidate. Subsequently, in recent orders, this Court dismissed constitutional claims and claims by Anna Flowers against Fort Jackson FCU. This Court also dismissed claims for damages against the United States based upon Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and its progeny. See Flowers, 289 F.Supp.2d at 1222. The instant order addresses remaining claims.

The Army's underlying Article 32 proceedings are collateral to the RFPA claims at issue in the case. The Court's role here is not to resolve or even to address the validity of the past larceny charges against Marshall Flowers. It has become apparent, however, that those charges and proceedings, although collateral, are nevertheless relevant to the primary remaining issues (causation and damages) in this suit. Plaintiffs and Defendants have provided much of the evidence or procedural history of those military proceedings as part of this RFPA case. Marshall Flowers spends much effort discussing those allegations and attempting to refute some of the evidence. He contends that the Bank Defendants' financial disclosures—not the underlying military proceedings—caused him damages, to wit, his leaving the Army two years short of his goal of 30 years of service. The Court therefore sets forth some of the relevant background of the charges and the underlying procedural history as necessary to explain why the financial disclosures, even if either Bank Defendant violated the terms of the RFPA, nevertheless are not responsible for Plaintiffs' alleged damages.

The evidence in the record provides, among other things, as follows:¹

In December of 1997, SGM Marshall Flowers was apprehended for alleged shoplifting at the military Post Exchange at Schofield Barracks, Hawaii, after he was observed apparently shoplifting on a security video. [See Plank Decl.; Hollis Decl; Exhibits C, F, and L to Concise Statement of Facts in Support of Defendant First Hawaiian Bank's Motion for Summary Judgment as to all Claims for Compensatory Damages ("Motion 5 CSF")].

Prior to December of 1997, the Army had been investigating Flowers because he had returned duplicate items on multiple occasions to Army and Navy Exchanges, often without receipts, in exchange for cash. [Motion 5 CSF, Exh. F, G]. From December 1997 until March 1998, a military Criminal Investigation Division ("CID") investigated the conduct of both Marshall and Anna Flowers. [Id. Exh. K]. The evidence obtained by the CID appears to be substantial, although there apparently is or was some question about some of its admissibility in a subsequent criminal trial. [Id. at 16]. Among other evidence, a search of his residence found numerous duplicate and unopened electronic, computer, and other high-value items. Also found were multiple refund receipts and what is described as "homemade" refund receipts on his computer. [Id., Exhs. K & O].

In April of 1998, the Army filed 42 charges of larceny against Flowers. [Id. Exh. M]. An Article 32 investigation was begun but proceedings were postponed at the request of defense counsel until June of 1998. [Id. Exh. N].

On June 19, 1998, a DD Form 453 subpoena was issued by the United States Army to First Hawaiian Bank requesting "all bank records, # 25478010, to include all deposits and withdrawals." This account belonged to Marshall and Anna Flowers. It stated that it was issued for an "Article 32 hearing" and cites Section 847 of the Uniform Code of Military Justice regarding punishment for failure to comply with the subpoena as well as a "Manual for Courts-Martial R.C.M. 703(e)(2)(G)." [Id. Exh. S].

First Hawaiian Bank notified Marshall Flowers of the subpoena by letter dated July 1, 1998, although it did not do so pursuant to the RFPA nor did it otherwise comply with the RFPA. [Moriki Decl.; Nakasone Decl; Motion 5 CSF, Exhibits F and JJ]. The notification appears to have been done as a matter of courtesy. First Hawaiian Bank did not actually produce documents to the Army until August 12, 1998. [Nakasone Decl.; Motion 5 CSF, Exhibits G and H].

On June 24, 1998, a DD Form 453 subpoena was issued by the United States Army to Fort Jackson FCU in South Carolina requesting "all bank account information since 1 Jan 97, to include # 582593." It also cited Section 847 of the Uniform Code of Military Justice regarding punishment for failure to comply with the subpoena as well as a "Manual for Courts-Martial R.C.M. 703(e)(2)(G)." [Exh. B to Concise Statement of Facts in Support of Fort Jackson FCU's Motion for Partial Summary Judgment Re. RFPA Claims ("Motion 1 CSF")]. The subpoena differed on its face from the subpoena issued to First Hawaiian Bank because it stated that the documents were for "a General court-martial of the United States... appointed by MG James T. Hill to provide evidence in the matter of United States v. SGM Marshall Flowers." [Id.] In contrast, the subpoena issued to First Hawaiian Bank was stated to be for "an Article 32 hearing," which is preliminary to a court-martial proceeding. [Id. Exh. C].

There appears to be no dispute that when the Fort Jackson FCU subpoena was issued there was not as yet any actual General Court-Martial proceeding ongoing (except perhaps to the extent an Article 32 could be considered as a necessary prerequisite to—and therefore part of—a court-martial). Perhaps the Army only intended to use the documents if the proceedings reached the court-martial stage, or perhaps the subpoena was wrong. The deposition testimony of Major Ohlweiler, the officer who signed both subpoenas, indicates the Fort Jackson FCU subpoena contained erroneous language. [Id. Exh. D ("The paralegal typed it out and I signed it,...