I am honored to have been selected to the American Trial Lawyers Association ("ATLA). This honor is explained in the American Trial Lawyers Association’s website as follows:

The American Trial Lawyers Association, is a national organization composed of the Top 100 Trial Lawyers from each state. Membership is obtained through special invitation and is extended only to those attorneys who exemplify superior qualifications, leadership, reputation, influence, stature, and profile in the trial lawyer legal community.

http://www.theatla.com/about.html

Although ATLA typically selects 100 lawyers from each state, when I received notification of this honor, ATLA explained that because of the limited size of the Hawaii bar ATLA had only selected 50 qualified attorneys from Hawaii. Naturally, I was flattered to have been included on this list.

The American Trial Lawyers Association is a prestigious organization, dedicated to recognizing those trial lawyers who represent their clients vigorously and judiciously. I am humbled to have been named to ATLA.

Since the opening of this office in 1997, I have been blessed with excellent support staff. I am especially proud that two of my former assistants have moved on to graduate from law school, and are now fine attorneys. And so it is with mixed emotions that I announce the resignation of my friend, Jennifer Brantley.

Jennifer was the friendly voice many of you will recall hearing when calling this office. Although I will miss seeing her each day, I am proud that Jennifer has now fulfilled her lifelong dream of becoming a Teacher. I will also miss her daughter, Cheyenne, who used to “camp out” in our conference room when “daycare” was an issue for her mom. Although, I expect great things in the future from Jennifer, I expect even “greater” things from Cheyenne.

Although I am saddened by Jennifer's resignation, I am happy to announce the arrival of the newest member of our family, CherylAnn Miyamoto. Cheryl joins us with a very strong academic background and has just completed work with the Hawaii Legal Aid Society. Since Cheryl appears to be extremely interested in the legal profession, it is my personal hope that she will be our next staff member to go on to Law School. It is also my personal goal that by working in this office, CherylAnn, will understand that the practice of a law can truly be an honorable profession. Finally, Cheryl brings another “first” to this office. Cheryl’s husband, Tyson, is a member of the Honolulu Police Department. I am confident that Cheryl will be an excellent addition to our family.

Aloha Jennifer and Cheyenne. Aloha CherylAnn and Tyson.

We have represented clients alleged to have been involved in a “theft of a corporate opportunity.” As most people know, “a corporate officer or director is under a fiduciary duty of individual loyalty, good faith and fair dealing in conducting corporate business.” Racine v Weisflog, 477 N.W.2d 326, 329 (Wis App., 1991). One of the primary duties is that a corporate officer cannot divert assets of the corporation and use them for the officer’s personal advantage.

In Hawaii, the “corporate opportunity” doctrine has been explained as follows:

If there is presented to a corporate officer or director a business opportunity which the corporation is financially able to undertake, is, from it nature, in the line of the corporation’s business and is of practical advantage to it, is one in which the corporation has an interest or a reasonable expectancy, and, by embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation, the law will not permit him to seize the opportunity for himself.

Lussier v Mau-Van Development, Inc., 4 Haw.App. 359, 368 (Hawaii App., 1983)(Citing Guth v Loft, Inc., 5 A.2d 503, 511 (Del.Ch., 1939).

If an officer or director diverts a “corporate opportunity” for his or her own personal gain, then such action may constitute a breach of the officer or director’s fiduciary duty to the corporation (ie. the duty of loyalty). The damages for such breach may include, (i) recovery of any profits earned (usually with the imposition of a constructive trust on the property taken), (ii) compensatory damages, and/or (iii) injunctive relief.

We are very proud to announce that attorney Effie Steiger has passed the Hawaii bar. Effie is already a member of the Nevada bar and moved home to Honolulu this past summer. We are very excited to have Effie working with us. Like everyone else in this office, the focus of Effie's practice will be Civil litigation, primarily commercial and real estate litigation.

Congratulations Effie. We expect great things from you in the future.

A case is started by filing by a Complaint. The party filing the Complaint is called the Plaintiff. In certain cases, a Plaintiff may decide to change his initial Complaint. There are many possible reasons that a Plaintiff may change or “amend” the Complaint (ie. the discovery of new evidence, a change in law, or even correcting a simple mistake). Hawaii Courts have specific rules for amending a Complaint. A Plaintiff may amend her Complaint once any time before an Answer or “responsive pleading” is served. Haw. R. Civ. P.15(a). However, if the amendment is sought after the Answer is filed, the Plaintiff must either obtain (i) written consent from the opposing party or (ii) permission from the Court.

Fortunately, that permission or “leave", as it is referred to in the rules, is to be "freely given when justice so requires.” Haw. R. Civ. P.15(a). See also Hirasa v. Burtner, 68 Haw. 22, 26, 702 P.2d 772, 775 (1985) (stating same). A request for leave to amend may be made at any time. Kahalepauole v. Associates Four, 8 Haw. App. 7, 14, 791 P.2d 720, 724 (1990). Moreover, it is appropriate to grant the requested leave so long as there has been no undue delay, bad faith, or dilatory motive on the part of the movant, nor undue prejudice to the non-moving party. Bishop Trust Co. v. Kamokila Dev. Corp., 57 Haw. 330, 337, 555 P.2d 1193, 1198 (1976).

Both State and Federal Courts have recognized the generous standard in Rule 15 (a). In addition, the Ninth Circuit has held that the policy of favoring amendments should be applied with “extreme liberality.” United States v. Webb, 644 F.2d 977, 979 (9th Cir. 1981). The purpose of this policy is primarily because the Courts favor giving a Plaintiff the opportunity to “test his claim on the merits” Foman v. Davis, 371 U.S. 178, 182 (1962). In other words, a party should be given his "day in Court", rather than limiting Plaintiffs claims through overly restrictive pleading rules.

On October 1, 2007, we celebrated the ten year anniversary of the opening of this law office. When I was working as an associate for a New York law firm, it was my dream to open my own boutique office. This office is the culmination of that dream. Of course, when I was practicing law in New York City, I never imagined that twenty years later my boutique office would be in Honolulu, Hawaii. For this fact, I am especially thankful.

I am also grateful for my friend and office manager, Warren Fabro. Warren started this office with me in 1997, and has been working with me since the Bank of America litigation with the late David Schutter, Esq.. I am thankful to Warren, both for his friendship and hard work. I know that my personal success is, in large part, the result of our collective effort. As we approach our second decade, this office will continue to provide excellent, personalized service to our clients. Although we will grow in the next ten years, this office will remain near its current size, since I intend to be actively involved in all of my clients’ cases.

Finally, I wish to thank all of the clients who trusted me to handle their affairs during the first ten years of this office. I know that there are many options available to you in my profession. I am always humbled by the faith that you place in me. I look forward to working with you all in the next decade.

Today we had a hearing concerning diversity jurisdiction. In general, federal courts only have jurisdiction over two types of cases; (i) cases concerning a federal question (meaning that the case is based on federal law), and (ii) diversity cases. 28 U.S.C. §1331, 28 U.S.C. § 1332.

For the federal court to have diversity jurisdiction over a case there must be two elements met; (i) the controversy must “exceed the sum of $75,000, exclusive of interests and costs” and (ii) be between “citizens of different states” or “citizens of a State and citizens or subjects of a foreign state” 28 U.S.C. § 1332.” Diversity of the parties requires that the plaintiffs and the defendants are from different states or countries. None of the plaintiffs can be “domiciled” in the same state or country of any of the defendants. Therefore, the threshold question in many cases become how do you determine a person’s “domicile.”

There are two things that are required in determining a person’s domicile, (i) where the person is residing and (ii) whether the person intends to live there. Many factors can come into play like “current residence, voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, place of employment or business, driver's license and automobile registration, and payment of taxes.” Lew v Moss, 797 F2d 747, 749-750 (C.A.9., 1986). If the facts show that a person lives in a state or country and intends to stay there by meeting some of the factors mentioned above then that person will be deemed to be a domicile of that place for the purposes of determining diversity jurisdiction. If you are a plaintiff and your "domicile" state is not the same as any of the defendants (and your claim meets the jurisdictional minimum of $75,000), then the federal court likely has jurisdiction to hear your case.