Sailola v. Municipal Services Bureau
Filing
36
ORDER Granting in Part and Denying in Part Defendant Municipal Services Bureau's 25 MOTION for Judgment on the Pleadings With Leave to Amend. Signed by JUDGE HELEN GILLMOR on 7/9/14. Plaintiff may file an Amended Complaint by 8/ 15/2014.(gab, )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 Modified on 7/9/2014 (gab, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
REED SAILOLA,
Plaintiff,
vs.
MUNICIPAL SERVICES BUREAU;
JOHN DOES 1-50,
Defendant.
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Civ. No. 13-00544 HG-RLP
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT MUNICIPAL
SERVICES BUREAU’S MOTION FOR JUDGMENT ON THE PLEADINGS (ECF
No. 25) WITH LEAVE TO AMEND
Plaintiff Sailola’s Complaint alleges Defendant Municipal
Services Bureau violated 47 U.S.C. § 227(b)(1)(A)(iii) of the
Telephone Consumer Protection Act and various Hawaii state
laws when it contacted him to recover a fine that had been
stayed pending appeal.
Defendant Municipal Services Bureau seeks judgment on the
pleadings.
Defendant asserts that Plaintiff’s claims are
barred by the Rooker-Feldman doctrine.
Defendant also argues
that the State of Hawaii Judiciary is a necessary party to
Plaintiff’s suit.
1
Defendant also moves to dismiss Plaintiff’s Complaint for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6).
Defendant’s Motion for Judgment on the Pleadings is
GRANTED IN PART AND DENIED IN PART.
Plaintiff is permitted
LEAVE TO AMEND his Complaint consistent with this Order.
PROCEDURAL HISTORY
On October 18, 2013, Plaintiff Reed Sailola filed a
Complaint.
(ECF No. 1).
On November 27, 2013, Defendant filed an Answer.
(ECF
No. 10).
On June 4, 2014, Defendant filed DEFENDANT MUNICIPAL
SERVICES BUREAU’S MOTION FOR JUDGMENT ON THE PLEADINGS.
(ECF
No. 25).
On June 19, 2014, Plaintiff filed PLAINTIFF REED
SAILOLA’S MEMORANDUM IN OPPOSITION TO DEFENDANT MUNICIPAL
SERVICES BUREAU’S MOTION FOR JUDGMENT ON THE PLEADINGS.
(ECF
No. 28).
On July 2, 2014, Defendant filed DEFENDANT MUNICIPAL
SERVICES BUREAU’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION
FOR JUDGMENT ON THE PLEADINGS.
(ECF No. 30).
2
On July 8, 2014, a hearing was held on Defendant’s Motion
for Judgment on the Pleadings.
(ECF No. 35).
BACKGROUND
The Complaint states that on December 6, 2012, Plaintiff
Reed Sailola (“Plaintiff Sailola”) was convicted in the
District Court of the First Circuit, State of Hawaii, for
Operating a Vehicle Under the Influence of an Intoxicant.
(Complaint at ¶ 9, Ex. A, ECF No. 1).
to pay a fine and other fees.
Plaintiff was sentenced
(Ex. A, ECF No. 1; Ex. 2 at pp.
2-3, ECF No. 28).
Plaintiff claims that his entire sentence was stayed by
the District Court due to his appeal of his conviction.
(Ex.
2 at p. 4, ECF No. 28).
The Complaint alleges that Defendant Municipal Services
Bureau (“Defendant MSB”) is a collection agency that collects
fines and fees on behalf of the State of Hawaii Judiciary.
(Complaint at ¶¶ 13, 18, ECF No. 1).
The Complaint alleges violations of the federal Telephone
Consumer Protection Act pursuant to 47 U.S.C. §
227(b)(1)(A)(iii) and nine state law causes of action.
(Complaint at pp. 19-39, ECF No. 1).
Plaintiff Sailola seeks
declaratory judgment, statutory damages for each phone call,
3
actual damages, fees and costs, and injunctive relief.
(Id.
at pp. 39-40).
Defendant’s Motion for Judgment on the Pleadings (ECF No.
25) is GRANTED IN PART AND DENIED IN PART.
Plaintiff is
permitted LEAVE TO AMEND his Complaint consistent with this
Order.
STANDARD OF REVIEW
Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12(c) for
Failure to State a Claim
Federal Rule of Civil Procedure 12(c) permits a party to
move for judgment on the pleadings after the pleadings are
closed.
Judgment on the pleadings “is properly granted when
there is no issue of material fact in dispute, and the moving
party is entitled to judgment as a matter of law.”
Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
Fleming v.
For a Rule 12(c)
motion, all material allegations contained in the nonmoving
party’s pleadings are accepted as true, while the allegations
made by the moving party that have been denied are assumed to
be false.
Hal Roach Studios v. Richard Feiner & Co., Inc.,
896 F.2d 1542, 1550 (9th Cir. 1989).
The district court’s review is generally limited to the
contents of the complaint.
If the court reviews matters
4
outside the pleading, the motion is treated as one for summary
judgment. See Olsen v. Idaho State Bd. of Medicine, 363 F.3d
916, 922 (9th Cir. 2004); Fed. R. Civ. P. 12(c).
The court
may consider documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice without converting the motion to dismiss into
a motion for summary judgment.
Lee v. City of Los Angeles,
250 F.3d 668, 688 (9th Cir. 2001).
Application of the Fed. R. Civ. P. 12(b)(6) Standard
When a Rule 12(c) motion raises the defense of failure to
state a claim, the standard governing the motion is the same
as that governing a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6).
McGlinchy v. Shell Chemical Co.,
845 F.2d 802, 810 (9th Cir. 1988).
Rule 12(b)(6) allows
dismissal where a Complaint fails “to state a claim upon which
relief can be granted.”
The Complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. Rule 8(a)(2).
When considering a Rule 12(b)(6) motion to dismiss, the
Court must presume all allegations of material fact to be true
and draw all reasonable inferences in favor of the non-moving
party.
Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).
Conclusory allegations of law and unwarranted inferences are
5
insufficient to defeat a motion to dismiss. Id.
The Court
need not accept as true allegations that contradict matters
properly subject to judicial notice or allegations
contradicting the exhibits attached to the complaint.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001).
In Bell Atl. Corp. v. Twombly, the United States Supreme
Court addressed the pleading standards under the Federal Rules
of Civil Procedure in the anti-trust context.
(2007).
550 U.S. 544
The Supreme Court stated that Rule 8 of the Federal
Rules of Civil Procedure “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action,” and that “[f]actual allegations must be
enough to raise a right to relief above the speculative
level.”
Id. at 555.
Most recently, in Ashcroft v. Iqbal, the Supreme Court
clarified that the principles announced in Twombly are
applicable in all civil cases.
129 S.Ct. 1937 (2009).
The
Court stated that “the pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-meaccusation.”
Id. at 1949 (citing Twombly, 550 U.S. at 555).
To survive a motion to dismiss, a complaint must contain
6
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.
Twombly, 550 U.S. at 570).
Id. (quoting
A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.
U.S. at 556).
Id. (citing Twombly, 550
The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
(quoting Twombly, 550 U.S. at 556).
Id.
Where a complaint pleads
facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’”
Id. (quoting
Twombly, 550 U.S. at 557).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the
opposing party to defend itself effectively” and “must
plausibly suggest an entitlement to relief, such that it is
not unfair to require the opposing party to be subjected to
the expense of discovery and continued litigation.”
AE ex
rel. Hernandez v. Cnty of Tulare, 666 F.3d 631, 637 (9th Cir.
2012) (internal quotations omitted).
7
ANALYSIS
I.
The Rooker-Feldman Doctrine Does Not Bar Plaintiff’s
Complaint
Pursuant to the Rooker-Feldman doctrine, federal district
courts lack subject matter jurisdiction to exercise appellate
review over final state court judgments.
Henrichs v. Valley
View Development, 474 F.3d 609, 613 (9th Cir. 2007) (citing
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923);
District of Columbia Court of Appeals v. Feldman, 460 U.S.
462, 482-86 (1983)).
The Rooker-Feldman doctrine precludes a district court
from reviewing state court judgments because the federal
authority to review a state court judgment lies exclusively
with the United States Supreme Court.
Exxon Mobil Corp. v.
Saudi Basic Industries Corp., 544 U.S. 280, 292 (2005).
The Ninth Circuit Court of Appeals has clarified the
narrow scope of the Rooker-Feldman doctrine.
First, a
district court must determine whether the action contains an
impermissible appeal of a state court decision.
Bell v. City
of Boise, 709 F.3d 890, 896 (9th Cir. 2013) (citing Noel v.
Hall, 341 F.3d 1148, 1158 (9th Cir. 2003)).
appeal may be either direct or de facto.
The impermissible
To constitute a de
facto appeal, “a plaintiff must seek not only to set aside a
8
state court judgment; he or she must also allege a legal error
by the state court as the basis for that relief.”
Maldonado
v. Harris, 370 F.3d 945, 950-51 (9th Cir. 2004) (quoting
Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004)).
A district court must pay close attention to the relief
sought by the federal-court plaintiff to determine whether an
action functions as a de facto appeal.
Cooper v. Ramos, 704
F.3d 772, 777-78 (9th Cir. 2012) (quoting Bianchi v.
Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 2003)).
The district court is not required to determine whether
or not the state court fully and fairly adjudicated the
constitutional claim.
Bianchi, 334 F.3d at 900.
“Rooker-Feldman bars any suit that seeks to disrupt or ‘undo’
a prior state-court judgment, regardless of whether the
state-court proceeding afforded the federal-court plaintiff a
full and fair opportunity to litigate her claims.’”
Id. at
901 (quoting Kenmen Eng'g v. City of Union, 314 F.3d 468, 478
(10th Cir. 2002)).
A complaint challenging a state court’s
factual or legal conclusion constitutes a forbidden de facto
appeal under Rooker-Feldman.
See Manufactured Home
Communities, Inc. v. City of San Jose, 420 F.3d 1022, 1030
(9th Cir. 2005).
9
If a district court determines that a plaintiff seeks to
bring a de facto appeal, the court’s second step in the
Rooker-Feldman analysis is to determine if the issue before
the federal court is “inextricably intertwined” with the state
court judicial decision.
Bell, 890 F.3d at 897.
If the
federal action does not contain a forbidden de facto appeal,
the Rooker-Feldman inquiry ends.
Id.
Plaintiff Sailola’s Complaint does not contain an
impermissible appeal of a state court decision.
Plaintiff’s
Complaint does not seek review of the Hawaii state court
decision finding him guilty of Driving Under the Influence of
an Intoxicant and ordering him to pay fees and fines as a
result of his conviction.
Plaintiff also does not seek review
of the Hawaii state court decision granting him a stay of his
sentence.
To the contrary, Plaintiff is seeking to rely on
the state court’s decision granting him a stay of his
sentence.
Plaintiff is not seeking to “undo” a state court
judgment.
Bianchi, 334 F.3d at 901.
In Partington v. Gedan, the Ninth Circuit Court of
Appeals determined that the federal district court lacked
subject matter jurisdiction to review a decision by the Hawaii
Supreme Court ordering Partington to pay a $50 fine.
852, 857 (9th Cir. 1992).
961 F.2d
Partington filed suit in federal
10
district court and named the justices of that Hawaii Supreme
Court as defendants.
Id.
Partington asserted in his federal
complaint that the Hawaii Supreme Court justices violated his
“constitutional rights by levying and collecting the fine.”
Id.
The Ninth Circuit Court of Appeals explained that the
Rooker-Feldman doctrine barred review of Partington’s federal
complaint challenging the Hawaii Supreme Court’s imposition of
a fine because he improperly sought review of a state court
judgment in federal court.
Id. at 864.
Here, Plaintiff Sailola claims that Defendant MSB
violated federal and state laws when it attempted to obtain
payment from him.
Plaintiff claims that when Defendant MSB
contacted him in July and August of 2013, he did not yet owe
any fines or fees related to his December 6, 2012 state court
criminal conviction. Plaintiff’s Complaint does not challenge
the District Court for the First Circuit, State of Hawaii’s
factual or legal conclusions.
Inc., 420 F.3d at 1030.
Manufactured Home Communities,
Unlike the plaintiff in Partington,
Plaintiff Sailola’s federal complaint does not challenge the
Hawaii state court’s decision ordering him to pay a fine.
Defendant has not established that Plaintiff Sailola has
filed a direct or de facto appeal of a state court judgment.
11
Bell, 890 F.3d at 897.
The Rooker-Feldman doctrine does not
preclude Plaintiff’s suit.
Defendant’s Motion for Judgment on the Pleadings (ECF No.
25) for lack of subject matter jurisdiction pursuant to the
Rooker-Feldman doctrine is DENIED.
II.
The State of Hawaii Judiciary Is Not a Necessary Party
Pursuant to Federal Rule of Civil Procedure 12(b)(7), an
action may be dismissed for failure to join a necessary party
under Federal Rule of Civil Procedure 19.
A necessary party1 is defined by Federal Rule of Civil
Procedure 19.
Rule 19 provides:
A person who is subject to service of process and whose
joinder will not deprive the court of subject-matter
jurisdiction must be joined as a party if:
(A)
in that person’s absence, the court cannot accord
complete relief among existing parties; or
1
The 2007 amendment to Rule 19 changed the language of
the rule, eliminating the term “indispensable” and replacing
“necessary” with “required.” The advisory committee notes
indicate that the 2007 amendments to the civil rules were
merely stylistic. Fed. R. Civ. P. 19 advisory committee’s
note (2007); Republic of the Philippines v. Pimentel, 553 U.S.
851 (2008). Because the traditional terms are terms of art
used by courts and commentators and because the parties have
used the traditional terms in their briefs, for clarity the
Court does the same here.
12
(B)
that person claims an interest relating to the
subject of the action and is so situated that
disposing of the action in the person’s absence may:
(i)
as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii)
leave an existing party subject to a
substantial risk of incurring double,
multiple, or otherwise inconsistent
obligations because of the interest.
Fed. R. Civ. P. 19(a)(1).
The Court has discretion, upon consideration of the facts
of the case and policy underlying Rule 19(a), to determine
whether a non-party should be joined.
See Bakia v. Cnty of
Los Angeles, 687 F.2d 299, 301 (9th Cir. 1982).
The Court’s
determination of whether a party should be joined is uniquely
influenced by the facts of the case.
E.E.O.C. v. Peabody
Western Coal Co., 610 F.3d 7070, 1081 (9th Cir. 2010).
The
policies underlying Rule 19(a) “include plaintiff’s right to
decide whom he shall sue, avoiding multiple litigation,
providing the parties with complete and effective relief in a
single action, protecting the absentee, and fairness to the
other party.”
Bakia, 687 F.3d at 301.
13
A.
The Court Can Accord Complete Relief in the Absence
of the Hawaii Judiciary
Defendant MSB asserts that the State of Hawaii Judiciary
is a necessary party.
Defendant contends that Plaintiff will
not find complete relief because the Hawaii Judiciary
“presumably will still attempt to collect the DUI Fine which,
as far as it is concerned, is still owed.”
(Def.’s Motion at
p. 14, ECF No. 25).
A creditor is not a necessary or indispensable party to
an action against a collection agency where there is no
dispute over the debt between the plaintiff and the creditor.
Pittman v. J.J Mac Intyre Co. Of Nevada, 969 F.Supp 609, 613
(D. Nev. 1997). Plaintiff’s Complaint does not seek relief
from any obligations he may have to the Hawaii Judiciary.
Plaintiff does not dispute that he may owe the Hawaii
Judiciary a fine and fees related to his criminal conviction
in the future.
Plaintiff does not request that his sentence
be expunged.
Plaintiff seeks statutory fines and damages from
Defendant MSB for its collection efforts.
Plaintiff may
obtain complete relief from Defendant MSB in the absence of
the Hawaii Judiciary.
Defendant MSB has not established that
14
the Hawaii Judiciary is a necessary party pursuant to Rule 19(a)(1)(A).
B.
The Hawaii Judiciary’s Absence Will Not Interfere
With Its Interest Or Subject Defendant MSB to
Inconsistent Obligations
Defendant MSB claims that the State of Hawaii Judiciary
is a necessary party because it has an interest in the action
as it may be held vicariously liable for Defendant MSB’s
actions.
Plaintiff’s primary argument is that Defendant MSB
violated the Telephone Consumer Protection Act (“TCPA”)
pursuant to 47 U.S.C. § 227(b)(1)(A)(iii) when it used an
auto-dialing system to place calls to his cellular phone
without permission.
Plaintiff claims that Defendant MSB
contacted him about a debt that he did not yet owe.
Defendant
MSB maintains that the Hawaii Judiciary provided the
information to collect Plaintiff’s fines and fees.
The Hawaii
Judiciary is not a necessary party on the basis that Defendant
MSB may be required to obtain evidence from it.
Johnson v.
Smithsonian Inst., 189 F.3d 180, 188 (2d Cir. 1999).
Plaintiff’s cause of action is not dependent on whether he
owes fines and fees to the Hawaii Judiciary.
Plaintiff
Sailola contends that Defendant MSB violated the TCPA for its
15
collection efforts regardless of whether he owed the debt at
the time or whether he will owe the debt in the future.
Any potential liability the Hawaii Judiciary has for
Defendant MSB’s collection efforts does not render it a
necessary party.
The possibility of related third-party
liability does not require the joinder of those parties to a
single suit.
Temple v. Synthes Corp., 498 U.S. 5, 7 (1990)
(finding that joint tortfeasors need not be joined as parties
to an action); Interscope Records v. Duty, 2006 WL 988086, *2
(D. Ariz. Apr. 14, 2006) (holding that a possible claim
against a third-party for contribution did not render the
nonparty necessary).
Rule 19 requires a legally protected
interest, and not merely a financial interest or interest of
convenience.
Axiom Worldwide, Inc. v. Becerra, 2009 WL
1347398, *4 (M.D. Fla. May 13, 2009) (finding that an interest
in vicarious liability does not render a nonparty necessary).
Defendant MSB claims the joinder of the Hawaii Judiciary
is necessary to allow it to protect its future interests in
recovering court fees and fines. “Speculation about the
occurrence of a future event ordinarily does not render all
parties potentially affected by that future event necessary or
16
indispensable parties under Rule 19.”
Northrop Corp. V.
McDonnell Douglas Corp., 705 F.2d 1030, 1046 (9th Cir. 1983).
Defendant MSB claims that its collection efforts are
directed by the Hawaii Judiciary.
Defendant MSB argues that
it will be subject to multiple or inconsistent obligations if
the Hawaii Judiciary is not joined.
Defendant MSB is
obligated to comply with federal and state laws that apply to
collection agencies.
The outcome of Plaintiff’s suit does not
alter Defendant MSB’s obligations.
The Complaint does not contend that the Hawaii Judiciary
is responsible for Defendant MSB’s alleged misconduct in its
collection efforts.
Gonzalez v. Law Firm of Sam Chandra, APC,
2013 WL 4758944, *3, (E.D. Wash. Sept. 4, 2013).
Plaintiff’s
Complaint does not challenge Defendant MSB’s contract with the
Hawaii Judiciary.
Disabled Rights Action Committee v. Las
Vegas Events, Inc., 375 F.3d 861, 881 (9th Cir. 2004).
The
Hawaii Judiciary is not a necessary party by virtue of its
contractual relationship with Defendant MSB.
Id.
Defendant’s Motion for Judgment on the Pleadings (ECF No.
25) for failure to join a necessary party pursuant to Rule 19
is DENIED.
III.
Dismissal for Failure to State a Claim Pursuant to
Rule 12(b)(6)
17
Count I:
Violations of the Telephone Consumer Protection
Act
The Telephone Consumer Protection Act (“TCPA”) was
enacted to protect individual consumers from receiving
intrusive and unwanted telemarketing calls.
Fin. Servs., LLC, 132 S.Ct. 740, 745 (2012).
Mims v. Arrow
The TCPA
provides for a private right of action for persons affected by
violations of its provisions and authorizes an award of
$500.00 in statutory damages for each violation.
47 U.S.C. §
227(b)(3); Mims, 132 S.Ct at 749-50.
The TCPA distinguishes between calls made to cellular
telephones and calls made to residential land-lines.
To state a claim under the TCPA for calls made to a
cellular phone, a plaintiff must establish that:
(1)
defendant made a call to plaintiff’s cellular
telephone;
(2)
defendant placed the call “using an automatic
telephone dialing system or leaving an artificial or
prerecorded voice”;
(3)
defendant made the call without prior consent of the
plaintiff.
47 U.S.C. § 227(b)(1)(A)(iii); Peatrowsky v. Persolve,
2014 WL 1215061, *4 (D. Nev. Mar. 24, 2014).
18
For calls made to residential land-lines, the TCPA
prohibits initiating any telephone call to any residential
line using an artificial or prerecorded voice to deliver a
message without the prior express consent of the called party.
47 U.S.C. § 227(b)(1)(B).
The TCPA recognizes a number of
exceptions to the prohibition on calls to residential lines,
including an exception for calls that are not commercial or
are not solicitations.
47 C.F.R. § 64.1200(a)(2).
The TCPA does not provide for the same exceptions to
calls made to a cellular phone.
Blair v. CBE Group Inc., 2013
WL 4677026, *4-5 (S.D. Cal. Oct. 17, 2013).
“The only
exemptions in the TCPA that apply to cellular phones are for
emergency calls and calls made with prior express consent.”
Id. (citing Gager v. Dell Financial Services, LLC, 727 F.3d
265, 273 (3rd Cir. 2013)).
The Complaint sufficiently alleges a claim against
Defendant MSB for violating the TCPA.
First, Plaintiff
contends that Defendant MSB made calls to his cellular
telephone.
(Complaint at ¶¶ 102, 107, 109, ECF No. 1).
Second, Plaintiff asserts that Defendant MSB made the
calls using an automatic telephone dialing system.
28, 101-02, 107, 109, 111, 114).
19
(Id. at ¶
Finally, Plaintiff alleges that he “does not recall ever
providing his cellular telephone number to the State of
Hawaii, law enforcement officials, the courts for Hawaii, or
Defendant” and states he “never gave express consent for any
of the above referenced entities to call his cellular
telephone.”
(Id. at ¶¶ 48-49; 104-06).
Defendant MSB’s defense that Plaintiff provided express
consent to receive the calls attempts to go to the merits of
Plaintiff’s claim.
“The ‘express consent’ provision, however,
is not an element of a TCPA plaintiff’s prima facie case, but
rather is an affirmative defense for which the defendant bears
the burden of proof.”
Shupe v. JP Morgan Chase Bank of
Arizona, 2012 WL 1344820, *4 (D. Ariz. Mar. 14, 2012) (citing
In re Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, 23 F.C.C.R. 559, 565 (2008)).
The allegations contained in the Complaint are sufficient
to state a claim pursuant to the TCPA.
Blair, 2013 2029155 at
*4; Peatrowsky, 2014 WL 1215061 *4.
Defendant’s Motion for Judgment on the Pleadings for
violations of the TCPA, alleged in Count I of the Complaint,
is DENIED.
Count II:
Violations of Section 443B of Hawaii
Revised Statutes
20
Plaintiff alleges that Defendant MSB violated a number of
provisions contained in Section 443B of Hawaii Revised
Statutes (“HRS”) relating to collection agencies.
The Hawaii Supreme Court has explained that in order for
a plaintiff to bring a private action pursuant to HRS § 443B,
the plaintiff must satisfy the threshold requirements of HRS §
480-13(b).
Flores v. Rawlings Co, LLC, 177 P.3d 341, 350
(Haw. 2008).
HRS § 480-13(b) provides for damages for “any
consumer who is injured by any unfair or deceptive act or
practice forbidden or declared unlawful by section 480-2.”
A
plaintiff filing suit pursuant to HRS § 443B must demonstrate
that he is a “consumer” within the meaning of the HRS § 48013.
Flores, 177 P.3d at 350.
The Hawaii Supreme Court relied on Section 443B-20 to
determine that a plaintiff must be a “consumer.”
Id. at 352.
HRS § 443B-20 states that any violation of chapter HRS § 443B,
which regulates collection agencies, constitutes an unfair or
deceptive act or practice in the conduct of any trade or
commerce for the purpose of section 480-2.
at 350; HRS § 443B-20.
Flores, 177 P.3d
The Hawaii Supreme Court concluded
that “[b]y deeming violations of HRS chapter 443B an unfair or
deceptive act or practice for the purposes of HRS § 480-2, it
is evident that the legislature wished to have chapter 443B be
21
enforceable in the same manner as other unfair trade practices
under chapter 480.”
Flores, 177 P.3d at 352.
“Consumer” is defined by statute to mean:
A natural person who, primarily for personal,
family, or household purposes, purchases, attempts
to purchase, or is solicited to purchase goods or
services or who commits money, property, or services
in personal investment.
HRS § 480-1.
The Hawaii Supreme Court has concluded
that, in the context of an action against a collection agency,
“the determination of whether the individual seeking suit is a
‘consumer’ should rest on whether the underlying transaction
which gave rise to the obligation was for a good or service
that is ‘primarily for personal, family, or household
purposes.’”
Flores, 177 P.3d at 352.
Here, Plaintiff Sailola is not a “consumer” for purposes
of his claims pursuant to HRS § 443B.
Plaintiff is not
seeking suit based on an underlying transaction that gave rise
to his obligation for his personal, family, or household
purpose.
Flores, 177 P.3d at 352.
a result of a criminal conviction.
Plaintiff’s obligation is
The Hawaii Supreme Court
decision in Flores is clear that only a consumer whose
obligation stems from an underlying transaction for a personal
good or service may bring a private cause of action for
violations of HRS § 443B.
Plaintiff cannot state a claim
22
pursuant to HRS § 443B because his obligation does not stem
from an underlying consumer transaction.
Defendant’s Motion for Judgment on the Pleadings seeking
to dismiss violations of HRS § 443B, alleged in Count II of
the Complaint, is GRANTED.
Count II for violations of HRS §
443B is DISMISSED WITH PREJUDICE.
Count III: Negligence Per Se
Hawaii law does not recognize a negligence per se cause
of action for violation of a statutory standard.
Aana v.
Pioneer Hi-Bred Intern., Inc., Civ. No. 12-0231LEK-BMK, 965
F.Supp.2d 1157, 1175 (D. Haw. 2013).
The Hawaii Supreme Court has stated that “noncompliance
with an established statutory standard is not necessarily
conclusive on the issue of negligence ... but is merely
evidence of negligence.”
Camara v. Agsalud, 685 P.2d 794, 798
(Haw. 1984) (citing Pickering v. State, 557 P.2d 125, 127
(Haw. 1976) and Michel v. Valdastri, Ltd., 575 P.2d 1299 (Haw.
1978)).
Defendant’s Motion for Judgment on the Pleadings seeking
to dismiss Plaintiff’s claim for negligence per se, alleged in
Count III of the Complaint, is GRANTED.
Count III for
negligence per se is DISMISSED WITH PREJUDICE.
23
Count IV:
Negligence
A successful negligence claim must satisfy the following
four elements: (1) a duty, or obligation, recognized by the
law, requiring the actor to conform to a certain standard of
conduct, for the protection of others against unreasonable
risks; (2) a failure on the actor’s part to conform to the
standard required; (3) a reasonably close causal connection
between the conduct and the resulting injury; and (4) actual
loss or damage resulting to the interests of another.
Ono v.
Applegate, 612 P.2d 533, 538 (Haw. 1980).
The Complaint has not stated sufficient facts to
establish the duty of care Defendant MSB is alleged to have
violated.
Plaintiff has not established that creditors have a
duty of care to debtors sounding in negligence.
McCarty v.
GCP Mgmt., LLC, Civ. No. 10-0133JMS-KSC, 2010 WL 4812763, *6
(D. Haw. Nov. 17, 2010).
The statutory standards provided in HRS § 443B do not
apply to Defendant MSB’s attempts to collect court fees and
fines.
Plaintiff has not demonstrated that the TCPA provides
a duty of care sufficient for a negligence cause of action.
Plaintiff’s recourse for violations of the TCPA is the
statutory remedies themselves.
24
The Complaint does not sufficiently identify any other
duty that Defendant MSB violated in order to state a claim for
negligence.
The Complaint does not provide sufficient particularity
with respect to the injuries that Plaintiff suffered on
account of Defendant MSB’s actions.
Plaintiff claims that
Defendant’s “actions or omissions did cause and proximately
cause the physical and mental injury to Mr. Sailola.”
(Complaint at ¶ 170, ECF No. 1).
Plaintiff’s statement is
conclusory and does not establish that he suffered an
actionable injury.
Defendant’s Motion for Judgment on the Pleadings seeking
to dismiss Plaintiff’s claim for negligence, alleged in Count
IV of the Complaint, is GRANTED.
Count IV for negligence is
DISMISSED WITH LEAVE TO AMEND.
Count V:
Intentional Infliction of Emotional Distress
The elements of intentional infliction of emotional
distress (“IIED”) pursuant to Hawaii law, are: (1) that the
act allegedly causing the harm was intentional or reckless,
(2) that the act was outrageous, and (3) that the act caused
(4) extreme emotional distress to another.
Enoka v. AIG
Hawaii Ins. Co., Inc., 128 P.3d 850, 872 (Haw. 2006).
25
The
term “outrageous” has been construed to mean “without just
cause or excuse and beyond all bounds of decency.”
Id.
(citing Lee v. Aiu, 936 P.2d 655, 670 n.12 (Haw. 1997)).
Acting with tortious or criminal intent, or intent to inflict
emotional distress, does not necessarily rise to the levels of
outrageousness required for an IIED claim.
Soone v. Kyo-Ya
Co., Ltd., 353 F.Supp.2d 1107, 1116 (D. Haw. 2005) (citing
Ross v. Stouffer Hotel Co. Ltd., 879 P.2d 1037, 1048 (Haw.
1994)).
The term “extreme emotional distress” includes, “inter
alia, mental suffering, mental anguish, nervous shock, and
other highly unpleasant mental reactions.”
Enoka, 128 P.3d at
872 (internal quotations omitted).
Plaintiff asserts that Defendant MSB called him more than
twenty-two times in two months.
Plaintiff claims that the
calls placed by Defendant MSB sought to collect money that he
did not owe.
Plaintiff alleges that he has continued to
receive calls despite informing Defendant MSB that he did not
owe the debt.
The Complaint states that Defendant MSB “acted
intentionally or recklessly.”
1).
(Complaint at ¶ 175, ECF No.
Plaintiff claims that he suffered “extreme mental and/or
emotional distress” because of Defendant’s “series of abusive
collection calls.”
(Id. at ¶¶ 177, 178).
26
Plaintiff has not pled sufficient facts to establish that
Defendant MSB’s actions were outrageous and “beyond all bounds
of decency.”
Enoka, 128 P.3d at 872.
In Keiter v. Penn. Mut.
Ins. Co., 900 F.Supp. 1339, 1348 (D. Haw. 1995), the court
explained that “[i]f courts do not in clear cases exercise
their review of such claims in the first instance, the
standard of outrageous will be expanded into an unreviewable
jury question, diluting the importance of the cause of action
and available relief.”
Plaintiff Sailola has not alleged any
facts that would make Defendant MSB’s attempt to collect fines
and fees “outrageous.”
Johnson v. Assoc. of Apartment Owners
of Ke Aina Kai Townhomes, Civ. No. 06-0106HG-KSC, 2006 WL
7136685, *5 (D. Haw. Aug. 25, 2006).
Defendant’s Motion for Judgment on the Pleadings seeking
to dismiss Plaintiff’s claim for intentional infliction of
emotional distress, alleged in Count V of the Complaint is
GRANTED.
Count V for intentional infliction of emotional
distress is DISMISSED WITH LEAVE TO AMEND.
Count VI:
Negligent Training and/or Supervision
Under Hawaii law, a claim for negligent training or
supervision “may only be found where an employee is acting
outside of the scope of his or her employment.”
27
Freeland v.
County of Maui, Civ. No. 11-0617ACK-KS, 2013 WL 6528831, *24
(D. Haw. 2013) (citing Dairy Rd. Partners v. Island Ins. Co.,
Ltd.,, 992 P.2d 93 (Haw. 2000) and Wong-Leong v. Hawaiian
Indep. Refinery, Inc., 879 P.2d 538 (Haw. 1994) (adopting the
test for negligent supervision set forth in Restatement
(Second) of Torts § 317, requiring that the employee be acting
outside the scope of his employment)).
The Complaint contains insufficient facts for a claim for
negligent training or supervision.
The Complaint does not
identify any of Defendant MSB’s individual employees.
Plaintiff does not contend that any of Defendant’s employees
acted outside the scope of his or her employment.
Defendant’s Motion for Judgment on the Pleadings seeking
to dismiss Plaintiff’s claim for negligence training or
supervision, alleged in Count VI of the Complaint, is GRANTED.
Count VI for negligent training or supervision is DISMISSED
WITH LEAVE TO AMEND.
Counts VII and VIII: Harassment and Invasion of Privacy
Counts VII and VIII of Plaintiff’s Complaint seek relief
pursuant to Hawaii’s criminal code for Harassment and Invasion
of Privacy.
The Complaint cites HRS § 711-1106 for harassment
and HRS § 711-1111(h) for invasion of privacy.
28
Plaintiff Sailola, as a private citizen, lacks standing
to bring claims under criminal statutes.
Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973) (finding that “a private
citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another”); Larry v. Uyehara,
270 Fed. Appx. 557, 558 (9th Cir. 2008) (finding that the
district court “properly dismissed this action because Larry
lacks standing to initiate a criminal prosecution”).
Defendant’s Motion for Judgment on the Pleadings seeking
to dismiss Plaintiff’s criminal claims for harassment and
invasion of privacy, alleged in Counts VII and VIII of the
Complaint, is GRANTED.
Counts VII and VIII for criminal
harassment and invasion of privacy are DISMISSED WITH
PREJUDICE.
Count IX:
Intrusion Upon Seclusion
A claim for unreasonable intrusion into the seclusion of
another consists of three elements: (1) intentional intrusion,
physically or otherwise, (2) upon the solitude or seclusion of
another or his private affairs or concerns, (3) that would be
highly offensive to a reasonable person.
Taylor v. Franko,
Civ. No. 09-0002JMS-RLP, 2011 WL 2118270, *7 (D. Haw. May 2,
2011) (citing Restatement (Second) of Torts § 652B (1977)).
29
“Whether an act of intrusion is highly offensive is an
objective inquiry.”
Black v. City & Cnty of Honolulu, Civ.
Nos. 97-1086SPK, 98-0295DAE, 112 F.Supp.2d 1041, 1053 (D. Haw.
2000).
There is no bright line rule delineating what kind of
intrusion is highly offense as each case must be taken on its
facts.
Id.
Plaintiff claims that Defendant MSB intentionally
intruded into his personal privacy when it attempted to
collect a debt from him that he did not owe.
193-96, ECF No. 1).
(Complaint at ¶¶
Plaintiff claims that Defendant MSB acted
unreasonably by using false and deceptive practices and by
making “threats to take action that they were not legally
entitled to make.”
(Id. at ¶ 195).
Plaintiff asserts that
Defendant MSB’s communications misrepresented the status of
his criminal conviction and attempted to induce him to forfeit
his legal right to appeal his conviction.
(Id. at ¶¶ 35, 41,
91-92, 98-99).
Plaintiff has stated sufficient facts to state a
plausible claim for intrusion upon seclusion.
Defendant’s
Motion for Judgment on the Pleadings seeking to dismiss
Plaintiff’s claim for intrusion upon seclusion, alleged in
Count IX of the Complaint, is DENIED.
30
CONCLUSION
Defendant Municipal Services Bureau’s Motion for Judgment
on the Pleadings (ECF No. 25) is GRANTED IN PART AND DENIED IN
PART.
Plaintiff is granted LEAVE TO AMEND.
an Amended Complaint by August 15, 2014.
Plaintiff may file
The Amended
Complaint must conform to the rulings contained in this Order.
Plaintiff’s claims are not barred by the Rooker-Feldman
doctrine.
The State of Hawaii Judiciary is not a necessary party to
Plaintiff’s suit.
Plaintiff has stated the following claims:
Count I:
Count IX:
Violations of the Telephone Consumer
Protection Act
Intrusion Upon Seclusion
The following claims are DISMISSED WITH LEAVE TO AMEND:
Count IV:
Count V:
Count VI:
Negligence
Intentional Infliction of Emotional
Distress
Negligent Training and/or Negligent
Supervision
31
The following claims are DISMISSED WITH PREJUDICE:
Count II:
Violations of HRS § 443B
Count III:
Negligence Per Se
Count VII:
Harassment
Count VIII:
Invasion of Privacy
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, July 9, 2014.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
Reed Sailola v. Municipal Services Bureau; John Does 1-50;
Civ. No. 13-0544 HG-RLP; ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT MUNICIPAL SERVICES BUREAU’S MOTION FOR JUDGMENT
ON THE PLEADINGS (ECF No. 25) WITH LEAVE TO AMEND
32
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