Au v. The Association of Apartment Owners of the Royal Iolani et al
Filing
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ORDER GRANTING MOTION FOR PARTIAL DISMISSAL OF COMPLAINT re 2 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/7/2014. "The court dismisses Count IV of Au's Complaint with prejudice to the extent it asserts a claim again st McGuire for violation of chapter 480D of Hawaii Revised Statutes." (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). 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
RONALD GIT SUM AU,
)
)
Plaintiff,
)
)
vs.
)
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THE ASSOCIATION OF APARTMENT )
OWNERS OF THE ROYAL IOLANI,
)
et al.
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)
Defendants.
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_____________________________ )
CIVIL NO. 14-00271 SOM/BMK
ORDER GRANTING MOTION FOR
PARTIAL DISMISSAL OF
COMPLAINT
ORDER GRANTING MOTION FOR PARTIAL DISMISSAL OF COMPLAINT
I.
INTRODUCTION.
Defendant R. Laree McGuire moves to dismiss Plaintiff
Ronald Git Sum Au’s claim against her alleging a violation of
chapter 480D of Hawaii Revised Statutes.
Because Count IV fails
to state a chapter 480D claim against McGuire upon which relief
can be granted, the court dismisses the portion of Count IV
pertaining to that alleged violation by McGuire.
II.
FACTUAL BACKGROUND.
Plaintiff Ronald Git Sum Au is the fee owner of two
units in the Royal Iolani Condominium in Honolulu, Hawaii.
ECF
No. 1-1, PageID # 4.
On April 25, 2014, Au filed a Complaint in state court
against The Association of Apartment Owners of the Royal Iolani
(the “AOAO”), Hawaiiana Management Company, Ltd. (“Hawaiiana”),
and R. Laree McGuire (collectively, “Defendants”).
ECF No. 1-1.
On June 10, 2014, McGuire removed the action to federal court
pursuant to 28 U.S.C. § 1441.
ECF No. 1.
Among Au’s assertions of violations of federal and
state law are allegations that McGuire violated chapter 480D of
Hawaii Revised Statutes in connection with filing Notices of
Default and Intention to Foreclose on January 16, 2014 and
January 21, 2014, with the Office of the Assistant Registrar of
the Land Court for the State of Hawaii (the “Land Court”) as an
attorney for the AOAO.
ECF No. 1-1, PageID # 15.
Those
documents state that Au was in default with respect to payment of
maintenance fees and that he owed “other charges and attorneys’
fees and costs unpaid to the Association.”
Id., PageID # 30-48.
On June 10, 2014, McGuire filed a motion for partial
dismissal of complaint, contending that Au’s claim for violation
of chapter 480D fails to state a claim upon which relief can be
granted because McGuire is not a “debt collector” under chapter
480D.
III.
ECF No. 2-1, PageID # 120.
STANDARD.
Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court’s review is generally limited to the
contents of the complaint.
Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).
If matters outside the
pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.
See Keams v. Tempe Tech. Inst., Inc.,
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110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).
Courts may “consider certain
materials--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.”
903, 908 (9th Cir. 2003).
United States v. Ritchie, 342 F.3d
However, documents attached to Au’s
memorandum in opposition to the motion that are not attached to
the Complaint, incorporated by reference in his Complaint, or
matters of judicial notice have not been considered in ruling on
this motion.
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.
Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).
However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.
Sprewell, 266 F.3d at 988; Syntex
Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Additionally, 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, 266 F.3d at 988.
Dismissal under Rule 12(b)(6) may be based on either:
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(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.
Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”
Twombly, 550 U.S. at 555.
The complaint must “state a
claim to relief that is plausible on its face.”
Id. at 570.
“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.”
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Iqbal,
556 U.S. at 677.
IV.
ANALYSIS.
Au alleges that McGuire violated section 480D-3(8) of
Hawaii Revised Statutes by filing Notices of Default and
Intention to Foreclose with respect to Au’s units in the Royal
Iolani Condominium that contained false and misleading
information.
ECF No. 1-1, PageID # 15.
Section 480D-3(8) of Hawaii Revised Statutes prohibits
debt collectors, while collecting a consumer debt, from
“disclos[ing], publish[ing], or communicat[ing] any false and
material information relating to the indebtedness.”
A “debt
collector” is defined as “any person, who is not a collection
agency regulated pursuant to chapter 443B, and who in the regular
course of business collects or attempts to collect consumer debts
owed or due or asserted to be owed or due to the collector.”
Haw. Rev. Stat. § 480D-2 (emphasis added).
McGuire was not acting as a “debt collector” under
chapter 480D in filing the Notices of Default and Intention to
Foreclose or in taking any related action.
Although McGuire was
attempting to collect a debt, she asserted that the debt was owed
to the AOAO, not to McGuire herself.
McGuire’s actions to
collect the AOAO’s debt could not have violated section 480D-3,
and Au fails to state a plausible claim for relief under chapter
480D of Hawaii Revised Statutes.
See Baham v. Ass’n of Apartment
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Owners of Opua Hale Patio Homes, Civ. No. 13-00669 HG-BMK, 2014
WL 2761744, *28-29 (D. Haw. June 18, 2014) (dismissing claim
against law firm for violation of chapter 480D of Hawaii Revised
Statutes because debt was owed to AOAO, not to law firm).
Au’s opposition memorandum fails to overcome this fatal
defect in his chapter 480D claim.
First, Au refers to issues of fact that preclude the
granting of the motion.
He appears to be arguing that there is
at least a question as to whether he may owe payment directly to
McGuire for her fees, as opposed to owing the AOAO for fees
charged by McGuire.
While the allegations in the Complaint
vaguely refer to McGuire as seeking attorney’s fees, any
suggestion that McGuire was attempting to collect her own debt
directly from Au are implausible on their face.
See Twombly, 550
U.S. at 570 (claim to relief must be “plausible on its face”).
Indeed, that suggestion is contradicted by Exhibits B and C to
Au’s Complaint, which refer to “[t]he delinquent amount of
assessments, other charges, and attorneys’ fees and costs unpaid
to the Association.” (Emphasis added).
The word “unpaid”
presumably means “unpaid by Au” to the Association.
Similarly,
Au himself quotes McGuire’s statement to him regarding “amounts
due and owing to the Association.”
(emphasis added).
ECF No. 1-1, PageID # 9
See Sprewell, 266 F.3d at 988 (court need not
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accept as true allegations contradicting exhibits attached to
complaint).
Second, Au refers to the doctrine of respondeat
superior, to tortious conduct, to overbilling, to an absence of
evidence, to fraud, and to federal law.
None of these matters
has anything to do with whether McGuire acted to collect her own
debt from Au.
V.
CONCLUSION.
The court dismisses Count IV of Au’s Complaint with
prejudice to the extent it asserts a claim against McGuire for
violation of chapter 480D of Hawaii Revised Statutes.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 7, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Au v. The Association of Apartment Owners of the Royal Iolani, et al., Civ.
No. 14-00271 SOM/BMK; ORDER GRANTING MOTION FOR PARTIAL DISMISSAL OF COMPLAINT
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