Foster v. Dolan et al
Filing
66
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS FOR LACK OF JURISDICTION (ECF No. 50 , 51 ) AND DENYING DEFENDANTS REQUESTS FOR AN AWARD OF ATTORNEYS' FEES AND COSTS (ECF No. 50 , 51 ) AND DISMISSING THE COMPLAINT WITHOUT LEAVE TO AM END.. Signed by JUDGE HELEN GILLMOR on 4/10/2015. ~ The Court GRANTS Defendants' Motions to Dismiss. The Complaint is DISMISSED WITHOUT LEAVE TO AMEND for lack of jurisdiction. DEFENDANTS MEG BALES AND MAC LOWSON'S MOTION TO DISMISS COMPLAINT FOR LACK OF JURISDICTION AND FOR AWARD OF ATTORNEYS FEES AND COSTS, joined by Defendants Val Hernandez and Lahaina Plumbing Company, Inc. is GRANTED as to the Motion to Dismiss and DENIED as to the request for attorneys' f ees andcosts. (ECF No. 50.) DEFENDANTS ASSOCIATION OF APARTMENT OWNERS OF NAPILIRIDGE, ROBIN VEGA, ADAM ALEXANDER, ROBERT STAILEY,JR., RON PERRY, ANN SHIPMAN, BOARD OF DIRECTORS(OFFICERS) FOR THE ASSOCIATION OF APARTMENT OWNERSOF NAPILI RIDGE, AND M ANAGEMENT CONSULTANTS OFHAWAII, INC.'S MOTION TO DISMISS PLAINTIFF SCOTTWILLIAM FOSTER'S COMPLAINT FILED ON MARCH 4, 2014,joined by Defendants Val Hernandez and LahainaPlumbing Company, Inc. is GRANTED as to the Motionto Dismiss and DENIED as to the request forattorneys' fees and costs. (ECF No. 51.) (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 HAWAII
SCOTT WILLIAM FOSTER,
Plaintiff,
vs.
JOHN DOLAN; MEG BALES; MAC
LOWSON; VAL HERNANDEZ; LAHAINA
PLUMBING; ADAM ALEXANDER; ROBIN
VEGA; ANN SHIPMAN; ROBERT “BOB”
STAILEY JR; RON PERRY; TREVOR
LITTLEFIELD; ASSOCIATION OF
APARTMENT OWNERS OF NAPILI
RIDGE; THE BOARD OF DIRECTORS
(OFFICERS) FOR THE ASSOCIATION
OF APARTMENT OWNERS OF NAPILI
RIDGE, in their official
capacity and personally;
MANAGEMENT CONSULTANTS OF
HAWAII, INC.; JOHN DOES 1-100;
JANE DOES 1-100; DOE
PARTNERSHIPS 1-100 AND DOE
CORPORATIONS 1-100,
Defendants.
LAHAINA PLUMBING COMPANY, INC.
Cross-claim
Plaintiff,
vs.
JOHN DOLAN; MEG BALES; MAC
LOWSON; VAL HERNANDEZ;; ADAM
ALEXANDER; ROBIN VEGA; ANN
SHIPMAN; ROBERT “BOB” STAILEY
JR; RON PERRY; TREVOR
LITTLEFIELD; ASSOCIATION OF
APARTMENT OWNERS OF NAPILI
) CIV. NO. 14-00108 HG-BMK
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RIDGE; THE BOARD OF DIRECTORS
(OFFICERS) FOR THE ASSOCIATION
OF APARTMENT OWNERS OF NAPILI
RIDGE, in their official
capacity and personally;
MANAGEMENT CONSULTANTS OF
HAWAII, INC.; JOHN DOES 1-100;
JANE DOES 1-100; DOE
PARTNERSHIPS 1-100 AND DOE
CORPORATIONS 1-100,
Cross-claim
Defendants.
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ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS FOR LACK OF
JURISDICTION (ECF No. 50, 51)
AND
DENYING DEFENDANTS’ REQUESTS FOR AN AWARD OF ATTORNEYS’ FEES AND
COSTS (ECF No. 50, 51)
AND
DISMISSING THE COMPLAINT WITHOUT LEAVE TO AMEND
This case arises out of Plaintiff Scott William Foster’s
claims that he was injured and incurred other damages when a
sewage back up caused a hydrogen sulfide gas leak into the unit
he was renting.
Plaintiff appears pro se.
The Complaint alleges
tort and Hawaii statutory claims.
For the reasons set forth below, the Court lacks federal
jurisdiction.
Defendants Meg Bales and Mac Lowson’s Motion to Dismiss,
joined by Defendants Val Hernandez and Lahaina Plumbing Company,
Inc., is GRANTED.
(ECF No. 50.)
2
Defendants Association of Apartment Owners of Napili Ridge,
Robin Vega, Adam Alexander, Robert Stailey, Jr., Ron Perry, Ann
Shipman, the Board of Directors and officers for the Association
of Apartment Owners of Napili Ridge, Management Consultants of
Hawaii, Inc.’s Motion to Dismiss, joined by Defendants Val
Hernandez and Lahaina Plumbing Company, Inc., is GRANTED.
(ECF
51.)
Defendants’ requests for attorneys’ fees and costs, made in
their Motions to Dismiss, are DENIED. (ECF No. 50, 51.)
The Complaint is DISMISSED WITHOUT LEAVE TO AMEND.
PROCEDURAL HISTORY
On March 4, 2014, Plaintiff, proceeding pro se, filed his
Complaint.
On December 19, 2014, Defendant Trevor Littlefield,
proceeding pro se, filed an Answer. (ECF No. 20.)
On January 6, 2015, Defendants Meg Bales and Mac Lowson
filed a Motion to Dismiss Complaint for Lack of Jurisdiction and
for Award of Attorney’s Fees and Costs.
(ECF No. 50.)
On January 7, 2015, Defendants Association of Apartment
Owners of Napili Ridge, Robin Vega, Adam Alexander, Robert
Stailey Jr., Ron Perry, Ann Shipman, the Board of Directors and
officers for the Association of Apartment Owners of Napili
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Ridge,1 and Management Consultants of Hawaii, Inc., filed a
Motion to Dismiss.
(ECF No. 51.)
On January 7, 2015, Defendant Lahaina Plumbing Company, Inc.
filed an Answer. (ECF No. 52.)
On February 9, 2015, Defendant Val Hernandez filed an
Answer. (ECF No. 60.)
Defendant’s landlord, John Dolan, has not been served. (ECF
No. 56.)
On January 9, 2015, the Court entered a Minute Order giving
Plaintiff until February 10, 2015 to file an opposition to
Defendants’ Motions to Dismiss and Defendants until March 3, 2015
to file their replies.
(ECF No. 53.)
On February 23, 2015, the Court entered a Minute Order
granting Defendant Lahaina Plumbing Company, Inc.’s and Defendant
Val Hernandez’s Motions for Substantive Joinder in Defendants Meg
1
The caption of Plaintiff’s Complaint indicates that he is
suing the “Board of Directors (Officers) for the Association of
Apartment Owners of Napili Ridge, in their official compacity
[sic] and personally.” (ECF No. 1.) Plaintiff alleges that
Defendant Adam Alexander was, at all relevant times, the
President of the Association of Apartment Owners of Napili Ridge
and a member of the Board (Compl. ¶ 8, ECF No. 1) and that
Defendant Robin Vega was, at all relevant times, the Treasurer of
the Association of Apartment Owners of Napili Ridge and a member
of the Board. (Compl. ¶ 9, ECF No. 1.) Although unclear,
Plaintiff appears to name both the Board of Directors and the
officers of the Board of Directors as Defendants. Defendants
Alexander and Vega are the only individuals identified as being
officers of the Board. The governing documents for the
Association of Apartment Owners of Napili Ridge are not before
the Court.
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Bales, Mac Lowson, Association of Apartment Owners of Napili
Ridge, Robin Vega, Adam Alexander, Robert Stailey, Jr., Ron
Perry, Ann Shipman, the Board of Directors and officers for the
Association of Apartment Owners of Napili Ridge, Management
Consultants of Hawaii, Inc.’s Motions to Dismiss.
(ECF No. 61.)
As of the date of this Order, Plaintiff has not filed an
opposition and Defendants have not filed replies.
Pursuant to Local Rule 7.2(d), the Court elected to decide
this matter without a hearing.
(ECF No. 53.)
STANDARD OF REVIEW
A case is properly dismissed for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1) when the court lacks the
constitutional or statutory power to adjudicate the case.
In a
motion to dismiss based upon lack of subject matter jurisdiction
under Rule 12(b)(1), the court employs the same standard under
which it would review a motion for dismissal for failure to state
a claim under Rule 12(b)(6).
Bollard v. California Province of
the Society of Jesus, 196 F.3d 940, 945 (9th Cir. 1999) (citing
Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th
Cir.1998)).
At this stage in the proceedings, the court must
take the allegations in Plaintiffs' complaint as true. Id.
(citing Big Bear Lodging Ass'n v. Snow Summit, Inc., 182 F.3d
1096, 1099 (9th Cir. 1999)).
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ANALYSIS
Federal Jurisdiction
Plaintiff Scott William Foster, a Hawaii resident, rented an
apartment at a condominium complex known as Napili Ridge, located
in Lahaina, Maui.
The Complaint alleges that Plaintiff was
injured and incurred damages when a broken sewer pipe allowed
hydrogen sulfide gas to escape into the condominium unit where he
resided.
Plaintiff’s Complaint cites to Hawaii state law,
primarily Hawaii Revised Statutes, Chapters 514A and 514B (the
Condominium Property Act) and asserts state common law tort
claims for personal injuries.
Defendants Meg Bales, Mac Lowson,
Association of Apartment Owners of Napili Ridge, Robin Vega, Adam
Alexander, Robert Stailey, Jr., Ron Perry, Ann Shipman, the Board
of Directors and officers for the Association of Apartment Owners
of Napili Ridge, Management Consultants of Hawaii, Inc., joined
by Defendants Val Hernandez and Lahaina Plumbing Company, Inc.,
move to dismiss the Complaint on the grounds that the Court lacks
federal jurisdiction.
Plaintiff has not filed an opposition to
Defendants’ motions to dismiss.
The federal court’s statutory jurisdiction is set forth in
28 U.S.C. § 1331 and 28 U.S.C. § 1332.
A federal district court
may have jurisdiction based either on diversity, pursuant to 28
U.S.C. § 1331, or federal question pursuant to 28 U.S.C. § 1332.
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Diversity jurisdiction, pursuant to 28 U.S.C. § 1331,
requires complete diversity between the Plaintiff and all
defendants.
If any plaintiff shares a common citizenship with
any defendant, then diversity is destroyed and along with it
federal jurisdiction.
See Kuntz v. Lamar Corp., 385 F.3d 1177,
1181 (9th Cir. 2004).
Plaintiff alleges that he is a resident of
Hawaii.
(ECF No. 1, Compl. ¶ 1.)
Plaintiff alleges that all of
the Defendants are residents of Hawaii.
21.)
(ECF No. 1, Compl. ¶¶ 3-
Plaintiff shares a common citizenship, Hawaii, with all of
the Defendants.
The Court does not have diversity jurisdiction.
The Complaint also fails to allege a federal cause of action
as a basis for jurisdiction.
For the federal district court to
consider a matter, pursuant to 28 U.S.C. § 1332, the United
States Constitution and applicable statutes require that it have
subject matter jurisdiction.
See Glencore Grain Rotterdam B.V.
v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1121 (9th Cir.
2002) (“Though Article III, Section 2, Clause 1 of the
Constitution delineates the character of the controversies over
which federal judicial authority may extend, the lower federal
courts rely on Congress to confer this authority through
statutory grants of jurisdiction. Subject-matter jurisdiction,
then, is an Art. III as well as a statutory requirement.”)
(quotation marks and citations omitted).
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Plaintiff’s Complaint also does not allege a basis for
federal question jurisdiction.
28 U.S.C. § 1331 provides that
“[t]he district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties
of the United States.”
Plaintiff asserts claims under state
common law and state statutes.
Plaintiff does not assert claims
that arise under federal law.
In paragraph 104, Plaintiff makes a reference to Defendants’
disregard for his “Constitutional and Civil Rights.”
Compl. ¶ 104.)
(ECF No. 1,
The recital of facts following the statement does
not reference any federal right.
In paragraph 108, Plaintiff alleges Defendants committed
“Offenses against civil rights Chapter 45 [sic] Fair Housing,
Constitutional rights, violation of HRS chapter 842 and Civil
Conspiracy.”
(ECF No. 1, Compl. ¶ 108.)2
Once again there are
no allegations that would be construed as federal claims.
Plaintiff has not stated a colorable claim under the United
States Constitution or laws of the United States.
Dismissal Without Leave to Amend
The Court construes the Complaint liberally because
Plaintiff is proceeding pro se.
94 (2007).
Erickson v. Pardus, 551 U.S. 89,
Plaintiff did not file an opposition to the motion to
2
Plaintiff’s reference to “Chapter 45 Fair Housing” appears
to be a reference to Hawaii Revised Statues, Chapter 515
(Discrimination in Real Property Transactions).
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dismiss.
“Unless it is absolutely clear that no amendment can
cure the defect . . . a pro se litigant is entitled to notice of
the complaint's deficiencies and an opportunity to amend prior to
dismissal of the action.”
Lucas v. Dep't of Corrections, 66 F.3d
245, 248 (9th Cir. 1995).
Here, it is absolutely clear that no
amendment can cure the defects in Plaintiff’s Complaint and
granting leave to amend would be futile. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
(district court may dismiss without granting leave to amend where
amendment would be futile).
jurisdiction.
The Court does not have
According to the allegations in the Complaint, all
of the Defendants reside in Hawaii as does Plaintiff.
Plaintiff
has not alleged a violation of federal law and none of the
factual allegations in Plaintiff’s 111 paragraph Complaint
support a claim based on violation of federal law.
Attorneys’ Fees and Costs
Defendants Meg Bales, Mac Lowson, Association of Apartment
Owners of Napili Ridge, Robin Vega, Adam Alexander, Robert
Stailey, Jr., Ron Perry, Ann Shipman, the Board of Directors and
officers for the Association of Apartment Owners of Napili Ridge,
Management Consultants of Hawaii, Inc., Val Hernandez, and
Lahaina Plumbing Company, Inc. ask the Court to exercise its
inherent power to award them attorneys’ fees and costs.
Court declines to award attorneys’ fees and costs.
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The
Plaintiff is
proceeding pro se.
While Plaintiff has failed to allege a basis
for federal jurisdiction, the factual basis for Plaintiff’s
Complaint is not frivolous.
CONCLUSION
The Court GRANTS Defendants’ Motions to Dismiss.
The
Complaint is DISMISSED WITHOUT LEAVE TO AMEND for lack of
jurisdiction.
DEFENDANTS MEG BALES AND MAC LOWSON’S MOTION TO
DISMISS COMPLAINT FOR LACK OF JURISDICTION AND FOR
AWARD OF ATTORNEY’S FEES AND COSTS, joined by
Defendants Val Hernandez and Lahaina Plumbing
Company, Inc. is GRANTED as to the Motion to Dismiss
and DENIED as to the request for attorneys’ fees and
costs. (ECF No. 50.)
DEFENDANTS ASSOCIATION OF APARTMENT OWNERS OF NAPILI
RIDGE, ROBIN VEGA, ADAM ALEXANDER, ROBERT STAILEY,
JR., RON PERRY, ANN SHIPMAN, BOARD OF DIRECTORS
(OFFICERS) FOR THE ASSOCIATION OF APARTMENT OWNERS
OF NAPILI RIDGE, AND MANAGEMENT CONSULTANTS OF
HAWAII, INC.’S MOTION TO DISMISS PLAINTIFF SCOTT
WILLIAM FOSTER’S COMPLAINT FILED ON MARCH 4, 2014,
joined by Defendants Val Hernandez and Lahaina
Plumbing Company, Inc. is GRANTED as to the Motion
to Dismiss and DENIED as to the request for
attorneys’ fees and costs. (ECF No. 51.)
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The Clerk of Court is ordered to close the case.
IT IS SO ORDERED.
DATED: April 10, 2015, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
_________________________________________________________________
Foster v. Dolan et al., Civ. No. 14-00108 HG-BMK; ORDER GRANTING
DEFENDANTS’ MOTIONS TO DISMISS FOR LACK OF JURISDICTION AND DENYING
DEFENDANTS’ REQUESTS FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS (ECF
No. 50, 51) AND DISMISSING THE COMPLAINT WITHOUT LEAVE TO AMEND
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