Association of Apartment Owners of Poamaikai v. McDonough

Filing 48

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 37 . Signed by JUDGE DERRICK K. WATSON on 2/20/2014. ~ For the foregoing reasons, the Court GRANTS Defendant Maureen McDonough's M otion and directs the Clerk of Court to close this case. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

ASSOCIATION OF APARTMENT
OWNERS OF POMAIKAI, a Hawaii
nonprofit corporation, by its Board of
Directors,
Plaintiff,
vs.
MAUREEN MCDONOUGH.
Defendant.
________________________________
MAUREEN MCDONOUGH,
Counterclaimant,
vs.
ASSOCIATION OF APARTMENT
OWNERS OF POMAIKAI, a Hawaii
nonprofit corporation, by its Board of
Directors,
Counterdefendant.

CIVIL NO. 13-00254 DKW KSC

ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION
Before the Court is Defendant Maureen McDonough’s Motion to
Dismiss Complaint for Declaratory and Injunctive Relief (“Motion”), filed on
November 8, 2013. Plaintiff Association of Apartment Owners of Pomaikai
(“Plaintiff” or “AOAO”) opposed the Motion. Amicus Curiae William D.
Hoshijo, as Executive Director of the Hawai‘i Civil Rights Commission, filed a
brief in support of the Motion. Dkt. No. 40. The Court held a hearing on the
Motion on December 27, 2013. After careful consideration of the supporting and
opposing memoranda, the arguments of counsel, and the relevant legal authority,
the Motion is GRANTED.
BACKGROUND
The parties dispute whether Defendant, an owner of a unit in the
AOAO’s condominium project, is entitled to an exception to the AOAO’s rule
forbidding pets. Several of the AOAO’s governing documents generally prohibit
pets, but certain exceptions apply:
(e) No animals, livestock, or poultry of any kind shall be
raised, bred, or kept in any Unit Ownership or in the common

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elements or limited common element or limited common
elements, except a visually handicapped person may have one
duly certified seeing eye dog and a hearing impaired person
may have one duly certified signal dog.
....
5.
No pets are allowed at the Pomaika’i at anytime.
Notwithstanding any provision to the contrary contained herein,
guide dogs, signal dogs, and other animals required to assist a
person with a disability (collectively referred to as “service
animals”) shall be permitted at the project subject to the
following restrictions:
(a)

such service animals shall not be kept, bred, or
used at the project for any commercial purpose;

(b)

such service animals shall be permitted on the
common elements provided that the animal is on a
short leash and under the control of its owner at all
times.

Any animal causing a nuisance or unreasonable
disturbance to any other occupant of the project shall be
permanently removed upon notice given by the Board or the
Managing Agent; provided that the notice shall give a
reasonable time to replace the service animal, unless the Board
determines that such animal poses an imminent serious threat of
physical harm to other occupants at the project.
Complaint ¶¶ 11-12 (quoting Declaration of Horizontal Property Regime & 6/1/12
Apartment House Rules).

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On January 7, 2013, Defendant sent a request to Plaintiff’s managing
agent asking that she be allowed to keep a dog in her unit. Defendant
accompanied her request with a letter from her physician, Jutta Madjar-Galanto,
M.D., stating: “Ms. Maureen McDonough is a patient under my care for which I
have found it necessary for her health and wellbeing to have a ‘companion dog.’”
Complaint ¶ 16. Through its attorney, the AOAO responded in a January 14,
2013 letter, informing Defendant that she had not provided sufficient evidence to
justify an exception to the “no pets” policy because she had neither established her
“handicap” nor that her dog was “trained, certified, or ameliorates her disability.”
Complaint ¶ 17. The very next day, Defendant replied by providing copies of a
State of Hawaii Person with a Disability Parking Placard, a State of Hawaii
Disabled Persons Parking Identification Card, and an “E.S.A. Emotional Support
Animal” Tag for “Mimi McDonough.” Complaint ¶ 18. Defendant’s January 15,
2013 correspondence also indicated that Defendant’s doctor “in accordance with
the HIPPA laws finds it against the law to disclose information about the diagnosis
of my handicap.” Id.
On January 17, 2013, Plaintiff once again responded, informing
Defendant that her additional information was still insufficient because she refused

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to disclose the nature of her disability and still had not established that her dog was
certified, trained or ameliorated her disability. Plaintiff also advised that while it
was prepared to take steps to enforce its bylaws and house rules, it was willing to
first consider additional evidence. Complaint ¶¶ 19-20. Receiving no response
from Defendant, Plaintiff wrote again on January 28, 2013, informing Defendant
that it was in the process of filing a lawsuit to resolve the matter and requesting her
telephone number to arrange for service of a Complaint. Complaint ¶ 21.
Counsel for Defendant responded in a February 5, 2013 letter, refusing to disclose
the specific nature of Defendant’s disability, but including a July 17, 2012 letter
from Alan D. Thal, M.D., which references Defendant’s “‘physical disability’ and
‘depression’ and that Defendant’s dog helps to ‘alleviate the depression and lack of
appetite.’” Complaint ¶ 22. On March 19, 2013, Defendant’s counsel
supplemented this information with a letter from Defendant’s physician, Tony N.
Trpkovski. Dr. Trpkovski’s letter states that Defendant suffers from moderate to
severe osteoarthritis of both hips and knees, which causes her chronic pain and, in
turn, depression. Dr. Trpkovski recommended a comfort pet to assist Defendant.
Complaint ¶ 24.

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Plaintiff retained Robert C. Marvit, M.D. to review Defendant’s
claims and to determine whether she was entitled to an exception to the AOAO’s
“no pets” rule. Based on feedback received from Dr. Marvit, Plaintiff wrote to
Defendant on March 22, 2013 with a list of seven questions. Defendant responded
by letter dated April 5, 2013, informing the AOAO that she had provided all
necessary information and would not provide anything further. Complaint ¶¶
25-26.
On April 11, 2013, Defendant dual-filed a pre-complaint
questionnaire (“PCQ”) with the Department of Housing and Urban Development
(“HUD”) and the Hawaii Civil Rights Commission (“HCRC”), pursuant to Haw.
Rev. Stat. (“HRS”) § 368-11 and Haw. Admin. R. (“HAR”) § 12-46-6, alleging
that the AOAO engaged in unlawful housing practices by insisting that she provide
detailed medical evidence before it would consider granting her request for a
reasonable accommodation. Def.’s Ex. A (4/11/13 PCQ). The HCRC filed its
“Charge of Real Property Transaction Discrimination” (“HCRC Charge”) on May
24, 2013, based on its preliminary review of Defendant’s PCQ. Def.’s Ex. B
(5/24/13 HCRC Charge).

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Plaintiff filed its Complaint for Declaratory and Injunctive Relief on
May 20, 2013, and contends that the information and documents provided by
Defendant do not establish that she is entitled to an exception to the “no pets” rule.
Plaintiff seeks: (1) a declaratory judgment that Defendant is not entitled to an
exception to Plaintiff’s “no pets” rule and is in violation of the AOAO’s bylaws
and house rules (Count I); (2) a court order requiring Defendant to remove her dog
from her unit (Count II); (3) a declaratory judgment regarding additional rights and
duties of the parties pursuant to the Fair Housing Act, 42 U.S.C. §§ 3607, et seq.
(“FHA”), and the Hawaii Discrimination in Real Property Act, HRS Chapter 515
(Count III); and (4) attorney’s fees and costs pursuant to HRS § 541B-157 (Count
IV). Plaintiff served the Complaint on Defendant on June 12, 2013. Defendant
filed an Answer and Counterclaim on July 3, 2013.
On October 16, 2013, the HCRC dismissed Defendant’s complaint
without completing the administrative process pursuant to HRS § 515-9(b) and
HAR § 12-46-11(a)(7)(D), and issued her a right to sue letter. Mem. in Supp. of
Motion at 7-8.
Defendant now seeks an order dismissing Plaintiff’s Complaint for
lack of subject matter jurisdiction. She argues that Plaintiff does not have the

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authority to opt out of the state administrative process initiated with the HCRC and
that Plaintiff’s Complaint is not properly before this Court. Defendant also argues
that the Court does not have jurisdiction to hear this case because there is no
federal question and the AOAO lacks standing.
In its amicus brief, the HCRC asserts that Plaintiff’s Complaint is
premature and subverts the statutorily mandated administrative process set forth in
HRS §368-13. HCRC Br. at 2-3. The HCRC further states that it was statutorily
mandated to dismiss Defendant’s HCRC complaint when she filed her
Counterclaim in the instant case, alleging facts similar to those contained in the
HCRC Charge, even though Defendant did not initiate the current action. The
HCRC contends that Plaintiff’s declaratory action is aimed at bypassing the
administrative procedure created by the state legislature to address unlawful
housing discrimination, and that -[i]f Plaintiff is permitted to go forward with this action, every
individual seeking redress for [an] alleged discriminatory
housing practice could potentially be drawn into [a] federal
lawsuit and be denied the benefits of the administrative
processes created by the Hawaii Legislature and Congress to
address charges of housing discrimination, i.e., a neutral
fact-finding investigation and attempts at conciliation. It will
have a chilling effect on all Hawai‘i housing complainants,
particularly those individuals with a disability requiring a
reasonable accommodation from their housing provider.

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Id. at 4.
STANDARD OF REVIEW
Defendant brings her motion pursuant to Federal Rule of Civil
Procedure 12(b)(1) and 12(h)(3) based on lack of subject matter jurisdiction and,
alternatively, pursuant to Rule 12(c) for judgment on the pleadings. Rule 12(b)(1)
states: “Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following
defenses by motion: (1) lack of subject-matter jurisdiction.” “[T]he party
asserting subject matter jurisdiction has the burden of proving its existence.”
Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009). The Court may
consider evidence outside the pleadings and should not presume that the
allegations of the complaint are true. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.
2000); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).
Although alternatively filed by Defendant as a Rule 12(c) motion,
when a party “raises an issue as to the court’s subject matter jurisdiction on a
motion for a judgment on the pleadings, the district judge will treat the motion as if
it had been brought under Rule 12(b)(1).” 5C Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1367 (3d ed.2004); see also Collins v.

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Bolton, 287 F. Supp. 393, 396 (N.D. Ill. 1968) (“Since defendant alleges only
jurisdictional grounds for dismissal, the proper course is to consider the motion
[for judgment on the pleadings] as one to dismiss for lack of subject matter
jurisdiction.”); Engleson v. Burlington N. Railroad Co., 1988 WL 332944, at *2
n.1 (D. Mont. 1988) (“Because the motion [for judgment on the pleadings] raises
only subject matter jurisdictional issues, the court treats the motion as one
requesting dismissal for lack of subject matter jurisdiction”).
DISCUSSION
Plaintiff alleges that this Court has subject matter jurisdiction pursuant
to 28 U.S.C. § 1331, based on the FHA, which provides in pertinent part:
When a charge is filed under section 3610 of this title, a
complainant, a respondent, or an aggrieved person on whose
behalf the complaint was filed, may elect to have the claims
asserted in that charge decided in a civil action under subsection
(o) of this section in lieu of a hearing under subsection (b) of
this section.
42 U.S.C. § 3612(a) (emphasis added). Here, however, no such Section 3610
charge has been filed. Such a “charge” issues only after the administrative agency
has investigated the complaint and completes a final investigative report, which did
not occur in this matter. See 42 U.S.C. § 3610(b); 42 U.S.C. § 3610(g)(2).

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Notably, the HCRC’s May 24, 2013 “Charge of Real Property
Transaction Discrimination” is not the “charge” contemplated by Section 3612(a)
that would trigger the propriety of a civil action. A Section 3612(a) charge has a
specific meaning. As defined by Section 3610(g)(2)(B), such a charge “shall
consist of a short and plain statement of the facts upon which the Secretary has
found reasonable cause to believe that a discriminatory housing practice has
occurred or is about to occur.” In addition, such a charge “shall be based on the
[administrative agency’s] final investigative report.” It is undisputed, however,
that the HCRC did not complete its investigation before Plaintiff initiated this
action, never issued a final investigative report, and therefore lacked the basis to
make a “reasonable cause” determination. Indeed, the May 24, 2013 HCRC
Charge contained none of these required elements. Accordingly, Plaintiff has not
established that this Court or, in fact, any court, has jurisdiction to adjudicate the
claims first initiated by Defendant with the HCRC on April 11, 2013. See Def.’s
Ex. A (4/11/13 PCQ).
This district court was faced with a similar scenario in Association of
Apartment Owners of Hanohano Hale v. Lutley, Civil No. 08-00065 DAE-BMK.
In that matter, the plaintiff AOAO had denied defendant Lutley’s request for a

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companion animal based on an alleged disability. Lutley first filed a complaint
against her AOAO with HUD, which, in turn, notified the plaintiff AOAO of the
existence of the complaint and that the HCRC would process it pursuant to Section
801(f) of the Fair Housing Act. Shortly thereafter, the HCRC notified the plaintiff
AOAO that it had assumed the investigation of Lutley’s complaint. On January
30, 2008, the HCRC issued a notice of finding of reasonable cause, and on
February 14, 2008, conducted an unsuccessful conciliation conference. Then, on
February 15, 2008, the plaintiff AOAO filed a lawsuit against Lutley seeking a
declaratory judgment that it was not obligated to accommodate her request for a
companion animal. Lutley, 8/25/08 Order at 2-4.
The district court in Lutley agreed with the HCRC and defendant that
it did not have subject matter jurisdiction over the lawsuit because the FHA does
not confer federal jurisdiction until a reasonable cause determination results in a
formal charge by HUD. As is the case here, the plaintiff AOAO in Lutley relied
on 42 U.S.C. § 3612 as a basis for jurisdiction. The district court held that “a
condition precedent to a party filing a civil suit is HUD’s issuance of a charge of
discrimination. There has been no such charge issued here.” Id. at 9.

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Here, Plaintiff likewise cites to 42 U.S.C. § 3612(a) to establish this
Court’s subject matter jurisdiction. See Complaint ¶ 1; Pl.’s Mem. in Opp. at 10
(“The Fair Housing Act confers federal court jurisdiction over this action.”). This
Court agrees with the district court’s conclusion in Lutley that it is without subject
matter jurisdiction to hear Plaintiff’s case. Indeed, the HCRC proceedings in
Lutley had advanced further in the administrative process, with both a finding of
reasonable cause having been made and a conciliation conference having been
attempted, than in the current matter. See 42 U.S.C. § 3612(b).
Additionally, it is clear that the AOAO has no authority to “opt out”
of the administrative process initiated by Defendant.1 Neither the FHA, HRS
Chapter 515 nor HRS Chapter 368 allow a respondent to preempt or circumvent
the HCRC administrative process by filing a civil action before the HCRC has
concluded its administrative review. The Hawai‘i Supreme Court has been clear

1

Plaintiff argues that it has not opted out because it filed the instant lawsuit before it was served
with the May 24, 2013 HCRC Charge. The Court notes, however, that Defendant filed the PCQ
and initiated the HCRC administrative process on April 11, 2013 before this lawsuit was filed on
May 20, 2013. Under the HCRC regulatory scheme, “a complaint is deemed filed if [the
HCRC] receives from an individual a written statement sufficiently precise to identify the parties
and describing with reasonable accuracy the action or practices alleged to be unlawful.” HAR
12-46-6(b); see also Hale v. Haw. Publ’n. Inc., 468 F.Supp.2d 1210, 1230 (D. Haw. 2006)
(finding that the filing of the PCQ with HCRC constitutes the filing of a complaint for the
purpose of calculating state filing deadlines). Defendant’s PCQ meets this requirement. See
Def’s Ex. A.

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that “to permit respondents as well as complainants to ‘opt out’ of the HCRC
proceedings would be contrary to the clear intent of the legislature.” SCI Mgmt.
Corp. v. Sims, 101 Hawai‘i 438, 451-52, 71 P.3d 389, 402-03 (2003).
Plaintiff also relies on the Declaratory Judgment Act, 28 U.S.C.
§§ 2201, et seq., to establish this Court’s subject matter jurisdiction. Complaint
¶ 8. The Declaratory Judgment Act, however, “does not by itself confer federal
subject-matter jurisdiction.” Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d
1158, 1161 (9th Cir. 2005); see also Janakes v. U.S. Postal Serv., 768 F.2d 1091,
1093-94 (9th Cir. 1985) (“The use of the declaratory judgment statute does not
confer jurisdiction by itself if jurisdiction would not exist on the face of a
well-pleaded complaint brought without the use of 28 U.S.C. § 2201.”). To
entertain an action under the Declaratory Judgment Act, a court must have a basis
for federal subject matter jurisdiction independent of the Act. See Skelly Oil Co.
v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); Guaranty Nat'l Ins. Co. v.
Gates, 916 F.2d 508, 511 (9th Cir. 1990). Such an independent basis is lacking
here.
Accordingly, the Court determines that Plaintiff has failed to establish
this Court’s subject matter jurisdiction. Based on this ruling, the Court does not

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reach Defendant’s alternative grounds for dismissal, including standing, and
dismisses Defendant’s Counterclaim, at her request.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant Maureen
McDonough’s Motion and directs the Clerk of Court to close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI‘I, February 20, 2014.

Derrick K. Watson
United States District Judge

Association of Apartment Owners of Pomaikai v. McDonough;
CV 13-00254 DKW-KSC; ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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