Evans v. Paragon Properties, LLC et al

Filing 10

ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT re 1 , 4 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/30/13. "The court gives Evans leave to file an Amended Complaint to cure these deficiencies by stating a claim upon which relief may be granted. Failure to do so by August 20, 2013 will result in the dismissal of the action." (emt, )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). Brian Evans served by first class mail at the address of record on July 30, 2013. A copy of the court's Application to Proceed Without Prepaying Fees and Costs shall be included in the mailing to Mr. Evans.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRIAN EVANS,
Plaintiff,
vs.
PARAGON PROPERTIES, LLC,
DOUGLAS MELCHER, MAURA
NICHOLSON, AND JAMES SEELY,
Defendants.

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CIVIL NO. 13-00355 SOM/BMK
ORDER DISMISSING COMPLAINT
AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED
WITHOUT PREPAYING FEES OR
COSTS AS MOOT

ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT
On July 18, 2013, Plaintiff Brian Evans filed his
Complaint.

ECF No. 1.

That same day, Evans filed an Application

to Proceed In Forma Pauperis (“IFP”).

ECF No. 4.

Evans’s

Complaint does not comply with Rule 8 of the Federal Rules of
Civil Procedure.

The court therefore dismisses Evans’s Complaint

and denies his IFP application as moot.
Rule 8 requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).

Fed. R.

Although Rule 8 does not require detailed

factual allegations, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.”
556 U.S. 662, 678 (2009).

Ashcroft v. Iqbal,

“[O]nly a complaint that states a

plausible claim for relief survives a motion to dismiss.”

Id.

To state a plausible claim, the complaint must, at a minimum,

“plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

Evans’s Complaint asserts malicious prosecution,
extortion, intentional infliction of emotional distress, and
violation of the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq.

However, Evans has not provided factual

allegations supporting his claims.
remain unclear.

The bases for his claims

Even construing Evans’s Complaint liberally,

Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir.
2003), the court cannot identify any plausible ground for any of
Evans’s claims.

See Iqbal, 556 U.S. at 678 (“To survive a motion

to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
For example, the malicious prosecution claim does not
allege that any court action was actually instituted against
Evans.

Evans appears to be alleging that a complaint was filed

with law enforcement, but a malicious prosecution claim typically
requires the use of some court process.

Nor are there sufficient

factual allegations to support an “extortion” claim.

The court

notes that part of the problem is that “extortion” is a term
usually used in criminal rather than civil cases.

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The Complaint

also refers to Defendants’ “goal...to defame Plaintiff,” ECF No.
1, ¶ 22, while referring to an attorney’s alleged threat of
criminal prosecution, and to an American Bar Association
provision concerning such threats.

At this point, the

“extortion” claim appears to be confusingly related to
defamation.

Equally problematic is the Fair Debt Collection

Practices Act (“FDCPA”) claim.

The court cannot tell if Evans is

claiming that an attorney acted as in-house counsel for Paragon
Properties in collecting a debt, which may affect the
applicability of the FDCPA.
The court gives Evans leave to file an Amended
Complaint to cure these deficiencies by stating a claim upon
which relief may be granted.

Failure to do so by August 20, 2013

will result in the dismissal of the action.
In deciding whether to file an Amended Complaint, Evans
may want to consider the issue of personal jurisdiction.

The

court questions whether it may constitutionally exercise personal
jurisdiction (as opposed to subject matter jurisdiction) over the
named Defendants.

Evans’s pleadings have raised serious

questions about whether any Defendant has the constitutionally
required minimum contacts with Hawaii to support the exercise of
personal jurisdiction.

See Bancraft & Masters, Inc. v. Augusta

Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (explaining that,
while a defendant can be haled into court if the defendant has

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“substantial” or “continuous and systematic” contacts with the
jurisdiction, a court’s personal jurisdiction over a defendant is
limited by a defendant’s right to due process).

As nothing in

the Complaint suggests any ties between Defendants and the
District of Hawaii, it is hard to see how Evans could avoid
dismissal for lack of personal jurisdiction.

See Franklin v.

Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (“An action may be
dismissed under [28 U.S.C.] section 1915(d) where the defense is
complete and obvious from the face of the pleading or the court’s
own records.”).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 30, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Evans v. Paragon Properties, LLC, et al.; Civil No. 13-00355 SOM/BMK;
ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF’S APPLICATION TO
PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT

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