Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT FOR ALL DEFENDANTS KAY, Chief Judge. BACKGROUND This action arises out of Defendant Y.Y. Valley Corporation’s (“YYVC”) attempt to relocate and evict Plaintiffs, who were tenants at will on land purchased by YYVC. In 1986, Royal Hawaiian Country Club, Inc. (“RHCC”), a subsidiary of YYVC, applied for and was granted a Conditional Use Permit (“CUP”) from the Director of the Department of Land Utilization (“DLU”) of the City and County of Honolulu, allowing the corporation to develop a golf course and country club on the property. Approval of the CUP was granted on the condition that the agricultural tenants presently located within the project site be offered an opportunity to relocate to an adjacent area. In 1986, YYVC sought city approval of a relocation plan which provided tenants living on the proposed project site an opportunity to relocate to an adjacent area under 10 year leases. Tenants living on adjacent areas were likewise included in the plan, although they were not generally required to vacate their current premises. After the city granted its approval on or about June 13, 1986, the corporation presented the plan to the tenants. Some tenants accepted the offer; others did not, including all those who lived in the area which was to be developed. Tenants who did not accept the relocation offer were served notices to vacate the property and summary possession actions were brought against them. Plaintiffs brought the current action against Defendants Han Kuk Chun, Tetsuo Yasuda, Masanori Kobayashi, Yoshinori Ha-yashida, Y.Y. Valley Corporation, Hiroshi Kobayashi, Eugene Lum, Norma Lum and former mayor Frank F. Fasi (“Defendants”) under the Racketeering Influenced and Corrupt Organizations Act (RICO). 18 U.S.C. §§ 1961-68. In particular, Plaintiffs allege that Defendants violated § 1962(e), prohibiting any person from conducting an enterprise through a pattern of racketeering activity and § 1962(d), prohibiting any person from conspiring to violate any of the provisions of subsections (a), (b) and (e). To support their RICO claims, Plaintiffs alleged the following injuries: a. loss of 10-year home/farm leases in Maunawili Valley which they are entitled to as third party beneficiaries of the Conditional Use Permit; b. loss of 10-year home/farm leases in Maunawili Valley which they are entitled to as third party beneficiaries under an oral option contract; c. injury to rights under the implied covenant of quiet enjoyment in that their intended use of the property was substantially interfered with in many ways, including not being able to make needed repairs; d. loss of crops and improvements which they are entitled to under a negative covenant in the deed through which YYVC obtained the property; e. the Wongs were robbed and their bull was shot; f. certain Plaintiffs’ interest in the property as adverse possessors was injured when they were evicted from the property. As predicate acts establishing “racketeering activity,” Plaintiffs allege that various Defendants committed bribery, robbery, state and federal extortion and mail fraud, and/or aided and abetted or conspired in those activities. With regard to their bribery claims, Plaintiffs’ allege that Defendant/Developers (i.e., Y.Y. Valley Corporation, Han Kuk Chun, Tetsuo Yasuda, Masa-nori Kobayashi and Yoshinori “Ken” Haya-shida) and Defendant Hiroshi Kobayashi made and conspired to make bribes to Defendant Fasi and other politicians in the form of illegal campaign contributions. Most of these contributions were made in August and September of 1987 with one being made in June of 1988. Although these contributions were returned by Fasi’s campaign organization in October of 1988, Plaintiffs contend that the contributions were given back to Fasi in the form of cash payments. In addition, Plaintiffs allege that on or about June 1, 1988, Defendant Han Kuk Chun made an offer of $5 million as a “gift” to the City and County of Honolulu through Defendant Fasi. According to Plaintiffs, these alleged bribes were intended to influence the actions of Defendant Fasi and other public officials concerning the issuance and enforcement of the CUP. With regard to their mail fraud claims, Plaintiffs allege that Defendant/Developers (i.e., Y.Y. Valley Corporation, Han Kuk Chun, Tetsuo Yasuda, Masanori Kobayashi and Yoshinori “Ken” Hayashida) conspired to commit mail fraud in connection with a “bribery scheme,” an “eviction scheme” and a “confiscatory relocation plan scheme.” In particular, Plaintiffs assert that the campaign contributions discussed above constituted mail fraud because Defendants misrepresented that they were benign contributions when, according to Plaintiffs, Defendants knew the contributions were in fact illegal bribes. Plaintiffs also contend that a series of eviction notices, and letters in furtherance of the attempted evictions, constituted mail fraud because the mailings did not inform the Plaintiffs of their right to relocate and to remove improvements from the property. These evictions letters were sent in 1988 and 1987, after the CUP was granted but before Defendants offered Plaintiffs an opportunity to relocate. As to the “confiscatory relocation scheme,” Plaintiffs claim that a series of letters between Defendants’ and Plaintiffs’ attorneys regarding the relocation plan constituted mail fraud because the mailings purported that the plan satisfied the CUP and that Plaintiffs had to surrender various rights in order to receive benefits under the CUP. These letters were sent in 1989, around the time the relocation plan was offered to Plaintiffs. Plaintiffs further allege that Defendant Fasi aided and abetted, and conspired to aid and abet, in the commission of mail fraud by accepting the campaign contributions and allowing the alleged eviction and confiscatory relocation schemes to happen. Plaintiffs contend that the alleged mail fraud and certain other acts of Defendants constituted extortion under state and federal laws. In particular, Plaintiffs argue that the eviction notices and letters, combined with Defendants’ prior violent eviction methods, served to extort Plaintiffs of their various property interests discussed above. On May 16, 1987, some of the Defendants allegedly shot the Wong’s bull and forcibly removed their other livestock and equipment from the property on which the Wongs were operating a ranch. Defendants also allegedly destroyed the Wong’s fences. Other Plaintiffs contend that YYVC’s representative Robert Carter and some men “who looked like body guards” came to their homes and told them, in a threatening manner, that they would have to leave the property. These men also allegedly took Jupiterrex Uraniumrhi, a Plaintiff who is not a party to these current motions, to a secluded warehouse and attempted to force him to accept the relocation plan. The robbery allegations pertain to the 1987 shooting of the Wong’s bull and theft of the Wong’s other livestock and equipment. On November 7, 1988, prior to filing the current action in federal court, most of the Plaintiffs (“State Court Plaintiffs”) filed an action against Defendants Han Kuk Chun and YYVC in the Circuit Court of the First Circuit for the State of Hawaii. Like the current action, Plaintiffs’ state court action arose out of Defendant YYVC’s attempt to evict the tenants from the property. The allegations and resolution of this action will be discussed below in the section on former adjudication. In June 1990, while the current action was pending in federal court, YYVC commenced' 23 summary possession actions in the District Court for the First Circuit Court of the State of Hawaii against all of the Plaintiffs in this action except Huberto Dumadag and the Estate of Laurencia Caneneia. On October 12, 1990, these actions were consolidated. The tenants named in the summary possession actions each filed an answer and six counterclaims. These counterclaims and their dispositions are discussed below in the section on former adjudication. On September 30, 1994, Defendants filed the following eighteen motions for summary judgment and partial summary judgment: (1)DEFENDANT MAYOR FRANK F. FASI’S MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS RAYMOND PEDRINA, LUZ PEDRINA, ALFREDO AURIO, SR., BENITA AURIO, RAPHAEL KA-MAI, LYNDA AUGUSTUS, MINOR LUM, JUPITERREX URANIUMRHI AND ROSITA URANIUMRHI (res judicata/collateral estoppel); (2) DEFENDANT MAYOR FRANK F. FASI’S MOTION FOR SUMMARY JUDGMENT AGAINST CERTAIN PLAINTIFFS (res judicata/collateral estoppel); (3) DEFENDANTS HAN KUK CHUN, TETSUO YASUDA, MASANORI KO-BAYASHI, YOSHINORI “KEN” HA-YASHIDA, AND Y.Y. VALLEY CORPORATION’S MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS RAYMOND PEDRI-NA, LUZ PEDRINA, LEONARD WONG, CHERYL WONG, ISIDRO DILAY, et. al. (res judicata/collateral estoppel); (4) DEFENDANTS Y.Y. VALLEY CORPORATION, HAN KUK CHUN (AKA YASUO YASUDA), AND TETSUO YASUDA’S MOTION FOR SUMMARY JUDGMENT AGAINST ALL PLAINTIFFS (res judicata/collateral estoppel); (5) DEFENDANT MAYOR FRANK F. FASI’S MOTION FOR SUMMARY JUDGMENT REGARDING IMMUNITY; (6) DEFENDANT MAYOR FRANK F. FASI’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING “FEDERAL CAMPAIGN SPENDING ACT”; (7) DEFENDANTS MASANORI KOBA-YASHI AND YOSHINORI “KEN” HAYASHIDA’S MOTION FOR SUMMARY JUDGMENT FOR (A) RELOCATION UNDER CONDITIONAL USE PERMIT & (B) ESTOPPEL AND BREACH OF NEGATIVE COVENANT IN DEED (injury to property rights); (8) DEFENDANTS MASANORI KOBA-YASHI AND YOSHINORI “KEN” HAYASHIDA’S MOTION FOR SUMMARY JUDGMENT RE STATUTE OF FRAUDS (injury to property rights); (9) DEFENDANT MAYOR FRANK F. FASI’S MOTION FOR SUMMARY JUDGMENT REGARDING BRIBERY; (10) DEFENDANTS MASANORI KO-BAYASHI AND YOSHINORI “KEN” HAYASHIDA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFFS’ BRIBERY CLAIMS; (11) DEFENDANTS MASANORI KO-BAYASHI AND YOSHINORI “KEN” HAYASHIDA’S MOTION FOR PARTIAL SUMMARY JUDGMENT WITH RESPECT TO COUNTS 4, 5 AND 6 OF THE VERIFIED FOURTH AMENDED COMPLAINT (mail fraud and extortion); (12) DEFENDANTS MASANORI KO-BAYASHI AND YOSHINORI “KEN” HAYASHIDA’S MOTION FOR PARTIAL SUMMARY JUDGMENT WITH RESPECT TO ALL CLAIMS OF INTERFERENCE WITH OR VIOLATION OF PLAINTIFFS’ PROPERTY RIGHTS; (18) DEFENDANT MAYOR FRANK F. FASI’S MOTION FOR SUMMARY JUDGMENT REGARDING AIDING AND ABETTING IN THE COMMISSION OF MAIL FRAUD; (14) DEFENDANT MAYOR FRANK F. FASI’S MOTION FOR SUMMARY JUDGMENT REGARDING CONSPIRACY TO AID AND ABET THE COMMISSION OF MAIL FRAUD; (15) DEFENDANT MAYOR FRANK F. FASI’S MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS BASED UPON 18 US.C. § 1962(c); (16) DEFENDANT MAYOR FRANK F. FASI’S MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS BASED UPON 18 US.C. § 1962(d); (17) DEFENDANT MAYOR FRANK F. FASTS MOTION FOR SUMMARY JUDGMENT REGARDING “PATTERN” OF RACKETEERING ACTIVITY; (18) DEFENDANT MAYOR FRANK F. FASTS MOTION FOR SUMMARY JUDGMENT REGARDING LACK OF STANDING AND/OR CAUSATION (injury to property rights); Defendant Fasi joined in motions 3 and 7. Defendants YYVC, Han Kuk Chun and Tet-suo Yasuda joined in motions 1, 2, 7, 8,10,11, 12, 16, 17 and 18. Masanori Kobayashi and Yoshinori Hayashida joined in motions 1, 4, 6, 9, 13, 15, 16, 17 and 18. Hiroshi Kobaya-shi joined in motions 1, 2, 3, 4, 7, 8,10,11,12, and 18. Eugene and Norma Lum joined in motions 1, 3, 4, 7, 8, 11, and 18. Consideration of these motions was initially delayed pending settlement negotiations. After negotiations broke down, the motions were heard before this Court on May 15 and 22, 1995. For the reasons stated below, the Court GRANTS summary judgment in favor of Defendants. The Court finds that Plaintiffs’ claims against all Defendants except Fasi are barred by the doctrine of claim preclusion. The Court also finds that Plaintiffs’ claims against Defendant Fasi cannot survive summary judgment because Plaintiffs have failed to establish a genuine issue of fact whether Defendant Fasi participated, or agreed to participate, in the operation or control of RHCC. Accordingly, Defendant Fasi cannot be found hable under 18 U.S.C. 1962(c) or (d). Although the above rulings are wholly dis-positive of this action, the following order disposes of the remaining motions as well. Both the parties and this Court have expended considerable time and effort briefing, arguing and reviewing these issues. The Court notes that although this action is being disposed of at summary judgment, Plaintiffs have had ample opportunity to present their side. Plaintiffs were given the opportunity to amend their complaint four times and survived innumerable motions previously brought before the Court. STANDARD OF REVIEW Summary judgment shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). One of the principal purposes of the summary judgment procedure is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The United States Supreme Court has declared that summary judgment must be granted against a party who fails to demonstrate facts to establish an element essential to its ease where that party will bear the burden of proof of that essential element at trial. Id. at 322, 106 S.Ct. at 2552. “If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact [citations omitted], the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment.” T.W. Electrical Serv. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir.1987). Instead, Rule 56(e) requires that the nonmoving party set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. Id. At least some “significant probative evidence tending to support the complaint” must be produced. Id. Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978). The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987), citing, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Thus, the question is whether “reasonable minds could differ as to the import of the evidence.” Id. The Ninth Circuit has established that “[n]o longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.” California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). Moreover, the United States Supreme Court has stated that “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Indeed, “if the factual context makes the nonmoving party’s claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” Franciscan Ceramics, 818 F.2d at 1468 (emphasis original), citing, Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Of course, all evidence and inferences to be drawn therefrom must be construed in the light most favorable to the nonmoving party. T.W. Elec. Services, 809 F.2d at 630-31. DISCUSSION 1. PRELIMINARY MATTERS A. DISMISSAL OF IMPROPERLY ADDED PARTIES In their Fourth Amended Complaint, Plaintiffs joined Huberto Dumadag and Rosita Uraniumrhi as Plaintiffs. In motion 1 and 2, Defendant Fasi requests that the Court dismiss these Plaintiffs because they were not properly added to the complaint. Plaintiffs did not seek leave of the Court to add these parties as required by Rule 15 of the Federal Rules of Civil Procedure. Nor did they bring a motion to amend their complaint before the Magistrate Judge as required by this Court’s order of April 19, 1990. Therefore, the Court DISMISSES all claims of Huberto Dumadag and Rosita Uraniumrhi. Additionally, although the Court dismissed the estate of Laurencia Canencia in a prior order, Plaintiffs continued to name the estate in their Fourth Amended Complaint. The Court hereby strikes the estate from the complaint. B. FIFTH AMENDMENT PRIVILEGE Throughout their opposition to Defendants’ motions for summary judgments, Plaintiffs argue that summary judgment should not be granted because various Defendants asserted their Fifth Amendment right against self-incrimination during their depositions. Although the Court does not agree that summary judgment is inappropriate where a defendant has asserted the Fifth Amendment, the Court recognizes that this is a factor which requires consideration in certain instances. For example, Defendants may not rely on their own testimony or affidavits to support their version of a disputed issue where they have asserted their Fifth Amendment right not to answer questions concerning that very same issue. See United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir.1990). Likewise, the Court may draw an adverse inference from the refusal of any of the Defendants to answer questions in response to probative evidence offered against them. Baxter v. Palmigiano, 425 U.S. 308, 318-19, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976); United States v. Ianniello, 824 F.2d 203, 208 (2nd Cir.1987); Ramil v. Keller, 68 Haw. 608, 620, 726 P.2d 254 (1986). II. FORMER ADJUDICATION (Res Ju-dicata) Defendants have filed four motions for summary judgment based on the preclusive effect of prior state court actions. In motions 1 and 2, Defendant Fasi contends that the claims and issues in the instant case are precluded by the doctrines of res judicata and/or collateral estoppel based on the summary possession actions. Defendants YYVC, Han Kuk Chun and Tetsuo Yasuda raise the same argument in motion 4. All Defendants joined in one or more of these motions. In motion 3, Defendants contend that Plaintiffs’ claims in this action are barred by Plaintiffs’ state court action. All Defendants joined in this motion. Generally, the doctrine of “res judicata” or former adjudication prevents parties from relitigating claims or issues that have already been decided by a competent tribunal. Santos v. State of Hawaii, 64 Haw. 648, 652, 646 P.2d 962 (1982); Dowsett, 7 Haw. App. at 643-46, 791 P.2d 398 (1990). It protects the integrity of the courts and promotes reliance upon judicial pronouncements by requiring that the decisions and findings of the courts be accepted as undeniable legal truths. Res Judicata furthers the finality of legal disputes and eliminates the time and expense of relitigation by requiring that parties bring all claims arising out of a transaction, or series of connected transactions, in one action. In the federal courts, the doctrine of “res judicata” arises from the Full Faith and Credit Clause of the United States Constitution. The statute implementing the Full Faith and Credit Clause requires that federal ’courts give state court proceedings “the same full faith and credit ... as they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C. § 1738. Migra v. Warren City School District Board of Education, 465 U.S. 75, 80, 104 S.Ct. 892, 895-96, 79 L.Ed.2d 56 (1984); Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir.1988). To determine whether a state decision precludes a party from litigating a claim or issue, federal courts must apply the res judicata rules of the state court in which the prior judgment was rendered. Migra, 465 U.S. at 81, 104 S.Ct. at 896; Robi, 838 F.2d at 322. In the case at bar, Defendants assert that Plaintiffs’ claims are precluded by various Hawaii state court actions. Accordingly, this Court must apply Hawaii’s res judicata rules. “Res judicata” encompasses two distinct types of preclusion — claim preclusion and issue preclusion. Santos v. State of Hawaii, 64 Haw. 648, 652, 646 P.2d 962 (1982); Dowsett, 7 Haw.App. 640, 644, 791 P.2d 398 (1990). According to the doctrine of claim preclusion [t]he judgment of a court of competent jurisdiction is a bar to a new action in any court between the same parties or their privies concerning the same subject matter, and precludes the relitigation not only of the [claims] which were actually litigated in the first action, but also of all grounds of claim and defense which might have been properly litigated in the first action but were not litigated or decided. E.g., Dowsett, 7 Haw.App. at 644, 791 P.2d 398 (citing In re Bishop Estate, 36 Haw. 403, 416 (1943). Claim preclusion thus bars plaintiffs from pursuing successive suits where the claim was either litigated or could have been litigated in the first action. It also bars defendants from pursuing a subsequent action that could have been raised as a defense or counterclaim in the first suit. By contrast, issue preclusion only bars relitigation of particular issues actually litigated and decided in the prior suit. Id. at 644, 791 P.2d 398. Issue preclusion may be asserted in a subsequent action on a totally different claim. A. CLAIM PRECLUSION Claim preclusion is applicable only where (1) the claim asserted in the action in question was or could have been asserted in the prior action; (2) the parties in the present action are identical to, or in privity with, the parties in the prior action; and (3) a final judgment on the merits was rendered in the prior action. Santos, 64 Haw. at 653, 646 P.2d 962. 1. Same Parties Claim preclusion requires that the parties to the second action are the same as, or in privity with, the parties to the first action. Dowsett, 7 Haw.App. at 646, 791 P.2d 398. Whether sufficient privity exists to bind a nonparty to a judgment is determined under the circumstances in each case as it arises. Id. Under Hawaii law, “the concept of privity has moved from the conventional and narrowly defined meaning of ‘mutual or successive relationship[s] to the same rights of property’ to ‘merely a word used to say that the relationship between the one who is a party of record and another is close enough to include that other within the res adjudieata.’” Id. The party asserting claim preclusion must demonstrate that the interests of the nonparty were adequately represented and that the nonparty’s rights were afforded proper protection in the prior action. Id. Although a close family relationship is one factor that a court may consider in determining privity, under Hawaii “res judicata” principles, such ties alone are not sufficient to bind a nonparty to a judgment. Id. (privity was not established by mother-child relationship where interests were divergent; mother had an interest in the trust income and children had an interest in the trust corpus). Rather, the party asserting claim preclusion must demonstrate that the interests of the nonparty were adequately represented and that the nonparty’s rights were afforded proper protection in the prior action. Id. The Ninth Circuit has held that a nonparty may be bound if a party is so closely aligned with the nonparty as to be its “virtual representative.” United States v. ITT Rayonier, Inc., 627 F.2d 996 (9th Cir.1980); Jackson v. Hayakawa, 605 F.2d 1121, 1126 (9th Cir. 1979). Some courts have suggested that the concept of virtual representation contemplates an “express or implied legal relationship by which parties to the first suit are accountable to non-parties who file a subsequent suit with identical issues.” ITT Rayo-nier, Inc., 627 F.2d at 1003. In practice, however, courts that have used the term “legal relationship” have applied it quite loosely. In the ITT Rayonier case itself, for example, the Ninth Circuit held that the EPA was bound by an enforcement action brought by the Department of Energy in an earlier state proceeding. The court backed away from requiring a strict agency relationship between the DOE and the EPA. Instead, the court focused on the fact that the interests of the DOE and the EPA were identical and their involvement substantially similar, that they maintained the same position with respect to the action, and that they shared more than “an abstract interest” in enforcement. Id. at 1003. The court emphasized that the relationship between the DOE and the EPA “however it may be labeled” was sufficiently close so as to preclude relit-igation. Id. The Ninth Circuit’s decision in Jackson, 605 F.2d at 1121 is particularly instructive. In Jackson, students and a former college instructor brought a civil rights action charging that the college president and others had violated their First Amendment rights by having them arrested after a campus rally. The district court held that the Jackson plaintiffs were bound by an earlier decision in which the a different group of students unsuccessfully challenged arrests arising out of the same incident. Although the plaintiffs in the initial action had never been certified as a class, the Ninth Circuit affirmed the lower court’s decision, holding that the plaintiffs were bound by the doctrine of virtual representation because they were attempting to vindicate the same rights as the plaintiffs in the earlier action. Id. at 1126. The Ninth Circuit’s doctrine of virtual representation is in accord with Hawaii’s requirement that a non-party’s interests must have been adequately represented and that his or her rights must have been afforded proper protection in the prior action. Where a party to the action shared identical or substantially similar interests or was attempting to vindicate the same rights, and stood in the same position as a non-party, the rights and interests of the non-party would be adequately represented and protected. 2. Same Claim The Hawaii courts follow the Second Restatement’s transactional view of “same claim” for purposes of claim preclusion. Kauhane v. Acutron Company, Inc., 71 Haw. 458, 464, 795 P.2d 276 (1990). Accordingly, to determine whether a litigant is asserting the “same claim” in a second action, Hawaii courts look to whether the claim arises out of the same transaction or the same series of connected transactions out of which the first action arose. Id.; Restatement (Second) of Judgments § 24 (1982) [hereinafter “Restatement § 24”]. The claim extinguished by an action “includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions.” Restatement § 24. This inquiry is made based on the facts of the transaction and does not depend on the number of substantive theories, or variant forms of relief flowing from those theories, that may have been available to the plaintiff; the number of primary rights that may have been invaded; or the variations in the evidence needed to support the theories or rights. Id. at 463 n. 6, 795 P.2d 276; Restatement § 24 comment at 197. Accordingly, a plaintiff cannot avoid the bar of claim preclusion merely by alleging conduct that was not alleged in his prior action or by pleading a new legal theory. McClain v. Apodaca, 793 F.2d 1031, 1034 (9th Cir.1986). All claims arising from a single injury must be raised in a single action or they will be barred by res judicata. Silver v. Queen’s Hospital, 63 Haw. 430, 437, 629 P.2d 1116 (1981). This is true even where some of the claims arise under state law and some arise under federal law. Id. (actions under federal civil rights act and state conspiracy and antitrust law arising from a single injury should be raised in a single action). Moreover, because claim preclusion bars all claims and defenses which could have been brought, it bars claims and defenses which were voluntarily withdrawn if a final judgment is rendered on the remainder of the case. Hall v. State of Hawaii, 7 Haw.App. 274, 283, 756 P.2d 1048 (1988). 3. Final Judgment on the Merits a. On the merits Clearly, either a bench or jury trial is an adjudication on the merits of a case. See, Morneau v. Stark Enterprises, Ltd., 56 Haw. 420, 421, 539 P.2d 472. Likewise, rulings on summary judgment motions are an adjudication of the merits of the disputed issues. See Hall, 7 Haw.App. at 277, 283, 756 P.2d 1048. Under Hawaii law, it is equally settled that a dismissal with prejudice is an adjudication on the merits of all issues that were raised or could have been raised in the pleadings. E.g., Land v. Highway Construction, 64 Haw. 545, 551, 645 P.2d 295 (1982); Caires v. Kualoa Ranch, Inc., 6 Haw.App. 52, 56, 708 P.2d 848 (1985). H.R.C.P. Rule 41(b) and Fed.R.Civ.P. Rule 41(b) provide for involuntary dismissal when a plaintiff fails to comply with the rules or with an order of the court. Silver v. Queen’s Hospital, 63 Haw. 430, 440, 629 P.2d 1116 (1981). These rules specifically provide that such dismissal operates as an adjudication on the merits: Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. H.R.C.P. 41(b). The United States Supreme Court has similarly held that dismissal under Fed.R.Civ.P. 12(b)(6) is a judgment on the merits. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 2428 n. 3, 69 L.Ed.2d 103 (1981). Rule 29 of the Hawaii Rules of Circuit Courts provides that actions may be dismissed with prejudice for want of prosecution where all defendants are in default and if the plaintiff fails to apply for default judgment within a specific time period. The Hawaii courts have held that dismissal for want of prosecution pursuant to Circuit Court Rule 12 also operates as a dismissal with prejudice and thus precludes a party from relitigating claims which were or could have been brought in the dismissed action. Lundburg v. Stinson, 5 Haw.App. 394, 400, 695 P.2d 328 (1985). The Hawaii Court of Appeals has also given preclusive effect to a default judgment. Quality Sheet Metal v. Woods, 2 Haw.App. 160, 164, 627 P.2d 1128 (1981). The court noted that the time for the defaulting party to assert its defenses was in the prior action. To permit it to later assert those claims would in effect reverse the default judgment. Hawaii courts would apparently likewise grant preclusive effect to prejudicial consent judgments. See, Dowsett, 7 Haw.App. at 645, 791 P.2d 398 (citing Sullivan v. Easco Corp., 662 F.Supp. 1396, 1408 (D.Md.1987) (a stipulation of dismissal with prejudice constitutes a final judgment on the merits for the purpose of claim preclusion)). Dismissal of an entire complaint without prejudice, by contrast, does not operate as an adjudication on the merits and thus does not bar a subsequent action on the same claim. Land, 64 Haw. at 551, 645 P.2d 295. b. Finality Under Hawaii law, a judgment is final for purposes of res judicata where the time to appeal has expired without an appeal being taken. Glover v. Fong, 42 Haw. 560 (1958). A Hawaii appellate court has noted that it follows “that where an appeal has been taken, a judgment of the trial court is not final, at least for purposes of res judicata.” Littleton v. State of Hawaii, 6 Haw. App. 70, 75, 708 P.2d 829 (1985). The Hawaii Supreme Court apparently concurs. See, Kauhane, 71 Haw. at 465, 795 P.2d 276 (circuit court’s judgment became final for res judicata purposes once plaintiff’s appeal was withdrawn); Silver, 63 Haw. at 440, 629 P.2d 1116 (district court’s judgment was finalized by the Supreme Court’s denial of certiorari); City and County of Honolulu v. Kam, 48 Haw. 349, 358 n. 17, 402 P.2d 683 (1965) (issue of whether there was a garnishable debt became res judicata on affirmance of the judgment). Defendants urge this Court to find that a judgment is final for purposes of res judicata pending appeal based on In re Chong, a decision by the United States Bankruptcy Court for the District of Hawaii. 16 B.R. 1 (Bkrtcy.D.Hawaii 1980). The bankruptcy court cited a Hawaii case, Solarana v. Industrial Electronics, 50 Haw. 22, 428 P.2d 411 (1967), for the proposition that an appeal from a judgment does not vacate the judgment appealed from, and then presumed that the appeal would likewise not affect the res judicata effect of a judgment. In re Chong, 16 B.R. at 3 — 4. A close reading of Solarana, however, reveals that the Hawaii court did not suggest that a judgment should be given res judicata effect pending appeal. See So-larana, 50 Haw. at 30, 428 P.2d 411. Rather, the court stated that: [W]hen an appeal from the dismissal of the first suit has been taken and is pending so that it ultimately may result that the subject matter of the second suit becomes triable in the first suit, the proper remedy is not a [dismissal] but instead a motion for stay of the proceedings in the second suit. This language indicates that the Solarana court intended that pending actions which might be barred by the res judicata effect of a case on appeal should be stayed until the appeal was finalized and the decision could be given res judicata effect. Defendants further cite to federal cases establishing the general rule adopted by federal courts that a judgment is final for purposes of res judicata despite the pendency of an appeal. See Hawkins v. Risley, 984 F.2d 321, 324-25 (9th Cir.1993); Robi 838 F.2d at 327; 1 Rest.2d, Judgments § 13, cmt. f at 135 (1985); United States v. Tropic Seas, 887 F.Supp. 1347 (D.Hawaii 1995) (citing Hawkins v. Risley for federal rule that the pre-clusive effect of a lower court judgment is not suspended by an appeal). In the case at bar, however, the Court is determining the preclusive effect of a state court action and must apply the res judicata principles adopted by the Hawaii courts. B. ISSUE PRECLUSION Issue preclusion requires that (1) the issue decided in the prior adjudication is identical with the one presented in the present action; (2) the party against whom issue preclusion is asserted was a party to the prior action or in privity with a prior party; and (3) there was a final judgment on the merits. Santos, 64 Haw. at 653, 646 P.2d 962. 1. Same Parties The privity rules for claim preclusion and issue preclusion are identical. Additionally, Hawaii law permits issue preclusion to be raised defensively by one who was not a party to the prior action. Morneau, 56 Haw. at 423, 539 P.2d 472. Defensive issue preclusion may only be asserted against someone who was a party, or in privity with a party, to the prior suit. Id. 2. Identical Issue In contrast to claim preclusion, issue preclusion does not bar litigation of all claims that wefe or could have been asserted. Rather, it only prevents a party from relitigating an issue which was actually raised, litigated and decided in the prior action. Dowsett, 7 Haw-App. at 640, 791 P.2d 398. Hawaii courts have generally interpreted “actually litigated” as requiring that the party against whom preclusion is sought had a “full and fair opportunity” to litigate the issue in the earlier case. Morneau v. Stark Enterprises, Ltd., 56 Haw. 420, 423, 539 P.2d 472 (1975). 3. Final Judgment Application of issue preclusion, like claim preclusion, requires that a final judgment was rendered in the first action. The inquiry of whether a judgment is final for purposes of issue preclusion purposes is identical to the discussion above for claim preclusion. Because issue preclusion only precludes issues that were actually litigated and decided, however, the inquiry of whether a decision is “on the merits” may be answered differently. For example, a stipulated dismissal or judgment will generally not support a claim of issue preclusion because the issues would not have been actually litigated and decided. Dowsett, 7 Haw.App. at 645, 791 P.2d 398. By contrast, parties are precluded from relitigating issues decided at summary judgment because they had a full and fair opportunity to address the merits of the issues at this stage. C. EFFECT OF PLAINTIFFS’ STATE COURT ACTION On November 10, 1988, most of the Plaintiffs (“State Court Plaintiffs”) filed an action against YYYC and Han Kuk Chun (“State Court Defendants”) in the Circuit Court of the First Circuit of the State of Hawaii. In their complaint, State Court Plaintiffs alleged claims of defamation, slander, violation of contract, intentional infliction of mental and physical duress and wrongful conversion against State Court Defendants for their activities in connection with obtaining the Conditional Use Permit and attempting to evict the tenants. In particular, State Court Plaintiffs claimed that they were third party beneficiaries of the CUP as successors in interest to that agreement, that State Court Defendants failed to inform them that they had a right to be relocated under the CUP and that Defendants removed them from the property in violation of the CUP. State Court Plaintiffs claimed to have suffered loss of economic income from “attempting to comply with the defendants non-conforming demands for relocation” and further economic loss and physical damage from “not being relocated as required under the CUP and from being threatened with eviction by the Defendants or by being evicted in violation of the CUP.” Plaintiffs claimed to have lost their homes, livestock, agricultural products, equipment and profits related thereto. Plaintiffs expressly declined to assert their claims of adverse possession in this action. On June 22, 1989, the state court entered an order of dismissal for want of prosecution pursuant to Circuit Court Rule 29, granting State Court Plaintiffs five days to show good cause why the case should not be dismissed. Plaintiffs responded that they had delayed acting because they were considering incorporating the matter into the RICO suit which they had filed in the federal district court. This response was accompanied by an affidavit of Thomas Lavigne, then paralegal for Plaintiffs’ attorney. The state court subsequently withdrew its order of dismissal and Defendants filed an answer. On November 10, 1989, the state court entered a notice of proposed dismissal pursuant to Circuit Court Rule 12, warning Plaintiffs that the action would be dismissed with prejudice unless they filed objections showing good cause within 10 days. This time, Plaintiffs responded that they had delayed acting because they were considering joining the state court action and the federal action “for judicial economy.” The state court withdrew its notice of proposed dismissal. On February 7, 1990, Plaintiffs filed a pretrial statement in the state court action. This pretrial statement bore the name and address of Thomas Lavigne, then co-counsel of Plaintiffs. On August 2, 1991, the state court once again issued an order of dismissal, noting that “cases dismissed with prejudice for want of prosecution can be reinstated by way of objection to the Order of Dismissal within ten days.” After Plaintiffs failed to object, the Court issued a final order of dismissal on August 22, 1991. 1. Claim Preclusion a. Same Parties State Court Plaintiffs brought then-action against Han Kuk Chun and YYVC. These parties were likewise named in the current action before this Court. Accordingly, Han Kuk Chun and YYVC may invoke claim preclusion to estop State Court Plaintiffs, and those in privity with them, from relitigating the claims brought in the state action. Likewise, those in privity with Han Kuk Chun and YYVC may assert claim preclusion to prevent State Court Plaintiffs, and those in privity with them, from relitigating those claims. Tetsuo Yasuda, Masanori Kobayashi and Yoshinori Hayashida, all sued in their capacity as “officers” of Defendant YYVC, are clearly in privity with the corporation. Their interests and involvement in the alleged events are identical to that of YYVC and they stand in the same position with respect to these actions as the corporation. Accordingly they may invoke claim preclusion to the same extent as YYVC. Defendants Hiroshi Kobayashi, Eugene Lum and Norma Lum are all named both personally and as agents for corporate Defendant YYVC. However, the allegations against them pertain solely to their actions as agents for YYVC. Clearly, with respect to these activities, their interests and involvement are substantially the same as that of the corporation. They also stand in the same position as the corporation with respect to these actions. Therefore, the Court finds that these Defendants are in privity with YYVC and may invoke claim preclusion to same extent as YYVC. Defendant Fasi is not in privity with Defendant YYVC or Han Kuk Chun and therefore may not invoke the doctrine of claim preclusion. All State Court Plaintiffs are clearly subject to claim preclusion based on the state court action. Likewise, Plaintiffs who were not party to the state court action are bound by the doctrines of privity and virtual representation. The interests of these non-party Plaintiffs are essentially identical to the State Court Plaintiffs’: they share the same attorney in the current action and are all trying to vindicate the same rights and interests that were at issue in the prior action. Therefore, the Court finds that the interests of the non-party Plaintiffs were adequately represented and their rights afforded proper protection in the state action. b. Same Claim The fact that State Court Plaintiffs brought state common law claims in their state action and RICO claims in their federal action is not a defense to claim preclusion. Because these claims all arose out of Defendants’ attempt to relocate and evict the tenants from the property, Plaintiffs could and should have brought the claims together in one action. The state law claims and RICO claims involve the same acts — Defendants’ alleged violation of the CUP and failure to inform the tenants of their alleged rights as third party beneficiaries under the CUP. Plaintiffs are likewise seeking to redress the same injury in both actions — eviction from the property, loss of homes, livestock, agricultural products, equipment and profits related thereto. Tenants cannot avoid claim preclusion in this Court simply by alleging new conduct (i.e. bribery, threats and mail fraud) or pleading a new legal theory (i.e. RICO), or by deleting a theory (i.e. slander) from the second action. Because state and federal courts share concurrent jurisdiction over RICO claims, State Court Plaintiffs could have raised their federal claims in their state court action. Tafflin v. Levitt, 493 U.S. 455, 460, 110 S.Ct. 792, 795-96, 107 L.Ed.2d 887 (1990); Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir.1987). Conversely, they could have sought supplemental jurisdiction over the state court claims in federal court. 28 U.S.C. § 1367. Instead, Plaintiffs chose to split their claims and simultaneously seek relief in both the state and federal courts, thus causing duplicated efforts and wasting judicial resources. Because Plaintiffs chose to pursue two concurrent actions, the final decision rendered in the state court prior to completion of the federal action became the full measure of relief to be accorded between the parties. The state decision thus precludes Plaintiffs from further litigating their claims in this Court. c. Final Decision on the Merits The state court’s order of dismissal, filed August 2,1991, indicated that Plaintiffs’ state court action would be dismissed with prejudice if Plaintiffs did not show good cause for their failure to act within 10 days. After Plaintiffs did not respond, the state court entered a final order dismissing the action on August 22,1991. Plaintiffs do not dispute that the dismissal was with prejudice for failure to prosecute the case, see Compass Development, Inc. v. Blevins, 10 Haw. App. 388, 391, 876 P.2d 1335 (1994), and that such a dismissal acts as a final decision on the merits for purposes of res judicata. Rather, Plaintiffs contend that the state court’s dismissal of their action should not be given preclusive effect because one of their attorneys, Anthony Locricchio, did not timely receive a copy of the order of dismissal or final order of dismissal. The Court notes that Plaintiffs’ do not deny that their co-counsel, Thomas Lavigne, timely received the orders. The Court finds that Plaintiffs’ argument pertains to the validity of the state court’s decision and is not relevant to the preclusive impact of that decision in this Court. If Plaintiffs believed that the dismissal of their action was improper, their appropriate remedy was to file a motion to set aside the state court’s order or to appeal the order before the state court. See Compass Development, 10 Haw.App. at 396, 876 P.2d 1335; Lim v. Harvis Const. Inc., 65 Haw. 71, 72, 647 P.2d 290 (1982). Having failed to do so, Plaintiffs cannot now resort to a collateral attack of the state court judgment in this Court. The Court further finds that Plaintiffs’ argument as to the validity of the state court’s dismissal lacks merit. Rule 4 of the Hawaii Rules of Civil Procedure provide that “every order required by its terms to be served ... shall be served upon each of the parties affected thereby.” Where the party is represented by an attorney, “service shall be made upon the attorney ... by mailing it to him at his last known address.” H.R.C.P. 4(b). Rule 4 further provides that “service by mail is complete upon mailing.” Id,.; Korean Buddhist Dae Won Sa Temple of Hawaii, Inc. v. Zoning Board of Appeals of the City and County of Honolulu, 9 Haw.App. 298, 304, 837 P.2d 311 (1992). Plaintiffs do not dispute that copies of the dismissal orders were mailed to Anthony Lo-cricchio at 47-677 Hui Kelu St., # 1, Ka-neohe, HI 96744, the address of Locricchio’s co-counsel, Thomas Lavigne. This address appeared on the heading of documents filed by Plaintiffs in both their state court case and the current action before this Court. Plaintiffs’ pretrial statement, filed in the state court action on February 7, 1990, lists “Locricchio & Lavigne” as attorneys for Plaintiffs and gives the names and addresses of both attorneys. Defendants YYVC et al. reply to Motion 3, Exhibit A. Likewise, documents filed in this Court shortly before and after the state court dismissed Plaintiffs’ action on August 22, 1991, list Thomas La-vigne as co-counsel, bear the signature of Thomas Lavigne and give the same Kaneohe address. See Plaintiffs’ Amended Certificate of Service, filed June 26, 1991; Plaintiffs’ Response, filed Aug. 1, 1991, Plaintiffs’ Notice of Appeal, filed Oct. 4, 1991; Plaintiffs’ Notice of Appeal, filed Oct. 30, 1991. Thomas Lavigne’s name also appears on the state court docket sheet in connection with filing of documents in the state court. Defendants YYVC et al. Motion 3, Exhibit I. The Court notes that Plaintiffs had previously responded to several orders by the state court threatening dismissal of their action for lack of prosecution. Clearly, Plaintiffs’ attorney was on notice that if he didn’t move this case along it would be dismissed. Yet, several years after the state court entered a final order of dismissal, he has still never moved to have the case reopened. Therefore, the Court finds that the state court’s dismissal of Plaintiffs’ action precludes relitigation of the same claims in this Court. 2. Issue Preclusion Because this action was dismissed for lack of prosecution none of the issues in the suit were actually decided by the state court. Therefore, issue preclusion is not appropriate with respect to this action. D. EFFECT OF SUMMARY POSSESSION ACTIONS The named tenants each filed six counterclaims in response to YYVC’s summary possession actions. (1) Leases Under an Option Contract In their answers to the summary possession actions, the tenants claimed that they were parties and/or beneficiaries under an option contract. According to the tenants, YYVC “conditionally promised [tenants], both verbally and in writing, that [tenants] could remain on the property ... if they abstained from opposing, and if [tenant] Leonard Wong testified in favor of [sic] [YYVC’s] golf course project at the CUP public hearing.” The tenants claimed that these promises grant them the right to renewable leases of the property. On November 1, 1990, YYVC filed a motion to dismiss this defense and counterclaim for failing to satisfy the statute of frauds. According to Hawaii law, leases for real property which extend beyond one year are unenforceable unless (1) in writing, and (2) signed by the party charged. Tenants opposed YYVC’s motion claiming that the statute of frauds was satisfied by the Conditional Use Permit and that the doctrine of part performance removed the agreement from the statute of frauds. On May 29,1991, the District Court for the First Circuit of the State of Hawaii granted YYVC’s motion to dismiss this counterclaim with prejudice. The state court issued a minute order stating that “having considered the Exhibits, Affidavits and Memoranda submitted, together with the Arguments of Counsel, and further being fully advised in the premises, and good cause appearing therefore, it is, ordered [that] ... [tenants’] first ... defense and counterclaim[ ] is dismissed with prejudice.” (2) Relocation Under the Conditional Use Permit In their answers to the summary possession actions, the tenants also claimed that they were third party beneficiaries under the conditional use permit (“CUP”) permitting the development of a private golf course and country club on the property. According to the tenants, one condition of the CUP was relocation of the tenants living on the property. According to the tenants, the relocation plan provided by YYVC violated the CUP because (a) it did not provide for relocating the tenants’ homes, (b) the plan offered relocation in a flood plain area not contemplated in the CUP, and (c) the plan was “unconscionable in that it is absolutely conditioned upon [tenants] waiving a multitude of rights against [YYVC] and its agents.” On November 1, 1990, YYVC filed a motion for partial summary judgment of this defense and counterclaim, arguing that the relocation offer made by YYVC was not inconsistent with the Conditional Use Permit. The CUP provided that: ... The applicant proposes to give tenants the option to relocate to a 50-acre portion of the project site adjacent to the residential fringe and obtain a 10-year permit to use the land for agricultural purposes. ... Agricultural tenants presently located within the project site shall be offered an opportunity to relocate to an adjacent area indicated for agricultural use in the Exhibit Map. Aside from prescribing the area and specifying that the reldcatees be allowed to stay for 10 years, the CUP did not restrict YYVC’s authority to set the terms of its relocation proposal. YYVC’s relocation plan was approved by the City and County of Honolulu. YYVC’s Exhibit 7. Tenants opposed YYVC’s motion, claiming there was a factual dispute over proper interpretation of the CUP. On May 29,1991, the District Court for the First Circuit of the State of Hawaii granted YYVC’s motion for summary judgment as to the second defense and counterclaim in a minute order as described above. (3) Adverse Possession Certain of the tenants also defended against the summary possession actions by asserting a claim for title to YYVC’s property under the law of adverse possession. On November 1, 1990, YYVC filed a motion to dismiss this defense and counterclaim for failure to comply with H.R.S. 12.1, which requires that a party raising the defense submit affidavits describing the nature and extent of the land in question. According to YYVC, the tenants claim of adverse possession was insufficient because they had not, and could not, come forward with evidence of the precise location or boundaries of the land they allegedly possessed. The tenants opposed this motion, arguing that the defense was valid and that they had complied with rule 12.1. On May 29,1991, the District Court for the First Circuit of the State of Hawaii granted YYVC’s motion to dismiss this defense and counterclaim with prejudice in a minute order as described above. (4) Breach of Covenant of Quiet Enjoyment The tenants claimed that certain acts attributable to YYVC, including “bulldozing and threatening to bulldoze homes, crops and other improvements; attempting to wrongfully evict; shooting and stealing livestock; leading Uraniumrhi to a secluded warehouse and intimidating him in attempting to force him to sign a waiver permitting [YYVC] to bulldoze Uraniumrhi’s improvements and crops,” breached the implied covenant of quiet enjoyment which YYVC, as the lessor, implicitly promised. On August 13,1991, the state district court entered an order dismissing this defense and counterclaim without prejudice pursuant to H.R.C.P. 41(a)(2), prescribing voluntary dismissal by order of court. (5) Estoppel and Breach of Negative Covenant in Deed In the summary possession actions, the tenants also claimed that they were beneficiaries of a deed which provided that occupants of YYVC’s property would be entitled to remove improvements, including crops and trees, upon vacating the land. According to the tenants, YYVC wrongfully concealed from them their rights pursuant to that deed. On November 1, 1990, YYVC filed a motion for partial summary judgment on this defense and counterclaim, arguing that the relocation offer made by YYVC was not inconsistent with the deed. YYVC submitted evidence showing that the relocation plan offered informed the tenants that YYVC did not claim any right to dwelling structures or other improvements, including crops. The tenants opposed this motion claiming that there was a factual dispute over whether the relocation agreement offered the tenants violated the covenant in the deed. On May 29,1991, the District Court for the First Circuit of the State of Hawaii granted YYVC’s motion for summary judgment as to this defense and counterclaim in a minute order as described above. (6) State RICO The tenants also claimed that YYVC was liable to them for violations of HRS Chapter 842, the state counterpart to the federal RICO Act. As part of their state RICO defense, tenants Raphael Kama! and Linda Augustus claimed that YYVC’s conduct interfered with their relationship with a third party to sell trees to that party. Various other tenants claimed they lost farming and rental income from sales and subsistence. On August 13, 1991, the state district court entered an order dismissing the state RICO defense and counterclaim without prejudice pursuant to H.R.C.P. 41(a)(2), prescribing voluntary dismissal by order of court. Subsequent to the above mentioned rulings, on September 23, 1991, the state court struck the answers and remaining counterclaims of the following tenants after they failed to appear at their depositions noticed by YYVC: James Jones, Loretta Jones, Severo Du-que, Cristita Bolo, Josefina Bolo, Wilfredo Bolo, Alejandro Coloyan, Ofelia Coloyan, Isidro Dilay, Margaret Dilay, Violeta Du-madag, Estrella Igarta, Sebastian Igarta, Cipriano Manuel, Frances Miguel, Jennie Olinger, Adoración Pedrina, Francisco Pe-drina, Luz Pedrina, Jocelyn Sullivan, William Sullivan, Cheryl Wong, and Leonard Wong. The state court previously warned these tenants that this adverse action would be taken against them if they failed to appear at scheduled depositions. The state court ordered that default judgments be entered against these tenants in the summary possession actions and entered Final Judgments for Possession and Writs of Possession against the defaulting tenants. Three other tenants, Peter Barcia, Nicanor Amit, and Lorraine Dilay, stipulated to the entry of judgment for possession. YYVC’s claims against tenants Jupiterrex Uraniumrhi, Alfredo Aurio, Sr., Benita Aurio, Raphael Kamai, Linda Augustus, Milnor Lum, and Raymond Pedrina were subsequently tried. YYVC prevailed in these actions. At trial the state court concluded that: YYVC has met all its legal obligations under the Relocation Plan. The Plan, as written and as applied, satisfied the requirements imposed by the City and County of Honolulu under the CUP. At this time, the state court also dismissed Kamai and Augustus’ claim for tortious interference with prospective business advantage for lack of merit. Subsequently, the state court entered judgment for possession in favor of YYVC against these tenants. YYVC asserts that their claims against John Batalona were also tried but that the court did not issue any written findings. Judgment for possession was entered against Batalona by the state court. Tenants Alfredo and Benita Aurio, Raphael Kamai, Linda Augustus, Milnor Lum, Luz and Raymond Pedrina and Jupiterrex Urani-umrhi timely appealed from the judgments for possession and the underlying orders, including the orders granting YYVC’s motion to dismiss and motion for partial summary judgment. The appeals are still pending. The remaining tenants either failed to appeal before the time for appeal expired or had their appeals dismissed. 1. Claim Preclusion a. Same Parties YYVC was the plaintiff in these actions and thus may clearly invoke claim preclusion to prevent the tenants involved in these actions from relitigating claims and defenses which they either raised or could have raised in that action. As discussed above, Defendants sued in their capacity as officers of YYVC, or for their alleged actions as agents of the corporation, are in privity with the corporation for purposes of claim preclusion and thus may invoke the doctrine to the same extent as YYVC. Because Defendant Fasi was neither a party to the summary possession actions, nor in privity with YYVC, he may not invoke claim preclusion to estop the tenants from litigating claims against him. The only tenants who were not named in the summary possession actions where Rosita Uraniumrhi, Huberto Dumadag and the Estate of Laurencia Canencia. As discussed above, the Court has dismissed these parties because they were added to Plaintiffs’ Fourth Amended Complaint in violation of Rule 15 and this Court’s prior orders. In any event, the Court finds that Uraniumrhi and Dumadag’s interests were adequately protected by their spouses and their attorney in the prior action. Likewise, the Estate’s interests was adequately protected by Cristita Bolo and Lorraine Dilay, administrators of the Estate, who were also parties to the state court action. Therefore, all Plaintiffs to the current action are subject to the preclusive effect of the summary possession actions. b. Same Claim The six defenses and counterclaims asserted by Tenants in the summary possession actions were virtually identical to the property entitlements alleged in their complaint in this action. Clearly Tenants could, and should, have asserted their federal RICO claims as a defense to this action. Not only do the state courts share concurrent jurisdiction over RICO claims; E.g., Tafflin, 493 U.S. at 460, 110 S.Ct. at 795-96; Lou, 834 F.2d at 739; state law permits defendants to a summary possession action to bring any counterclaims arising out of and referring to the land the plaintiffs are seeking possession of. Lum v. Sun, 70 Haw. 288, 296-97, 769 P.2d 1091 (1989); H.R.S. § 604-5(a). c. Final Adjudication on the Merits Raphael Kamai, Lynda Augustus, Alfredo Aurio, Benita Aurio and Milnor